BC Law IPTF Blog

From National Economic Research Associates, Inc. (”NERA”) v. Evans, 21 Mass.L.Rptr. 337 (Mass. Super. 2006):

NERA contends that any reasonable person would have known that the hard disk of a computer makes a “screen shot” of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected e-mail account on the Internet. NERA further contends that any reasonable person would have known that these temporary files, although not readily accessible to the average user, may be located and retrieved by a forensic computer expert. This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of “screen shots” from private Internet e-mail accounts on a computer’s hard disk.

Furthermore:

The bottom line is that, if an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. all such e-mails are stored on the hard disk of the company’s computer in a “screen shot” temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.

So I decided to re-write the BCIPTF Publication Agreement. One of the barriers to publishing articles on our journal is the pedantic process of getting the darn agreement signed. Wouldn’t it be great—instead of mailing a hard copy of the agreement (or burdening an author with printing it out), getting a signature, getting it mailed back, counter-signing, then sending a copy back—if we could do it over e-mail?

Funny you should ask.

Generally a signature is any mark by which a signee intends to be bound. In the old days, it could be an “X” or even in modern days an incomprehensible scribble. It was generally used as a hedge in support of a statute of frauds claim. Written by hand, there are some evidentiary tactics one can use to authenticate a signature—but in an electronic age, what do we have?

First, it has to be understood that a contract with a “real” written signature isn’t self-authenticating. A signature does not a contract make. Even though I have my own fancy, idiosyncratic signature, if I sign a contract with my non-dominant hand and misspell my name, I can still make that contract binding.

Therefore, there’s really no difference between me writing an “X” and calling it a signature and typing my name out on an electronic document. In either case, under oath, I would have to say, yes, I did sign it and mean to be bound by the agreement.

But then we shift back into the real world. Do I really think that a name typed into a word processing document binds me to a contract I want to sneak out of? No way!

Well, maybe. Few things in life are in a vacuum. So leading up to the digital signing of that DOC or RTF file, there’s a chain of e-mails that comprise negotiations. Then in the contract we specify:

Section 9(a)(i)(B) [T]he Licensor e-mails the Digitally Signed Agreement to the Journal from the Licensor’s E-mail Address to the Journal’s E-mail Address, both specified below, and within the body of the e-mail message types “I, [Licensor’s name], hereby accept the attached Publication Agreement.”

There, we have quadruple authentication: a signature on the electronic document, a chain of e-mails leading to an e-mail with an acceptance, a second typed signature in an e-mail, and then an “authenticating” e-mail address. If there’s author metadata in the document, then that’s just a bonus.

Taking a look at ALR: In Cloud Corp. v. Hasbro, Inc., the Seventh Circuit court of appeals ruled that the sender’s name in an e-mail was sufficient as a signature. 314 F.3d 289, 49 U.C.C. Rep. Serv. 2d 413 (7th Cir. 2002). Similarly, the First Circuit ruled in Roger Edwards, LLC v. Fiddes & Son, Ltd. that a chain of business e-mails referencing an agreement satisfied the statute of frauds requirement in Maine. 245 F. Supp. 2d 251 (D. Me. 2003). Part of the reasoning behind courts’ acceptance of electronic signatures hearkens back to days when a typed signature on a telegram was held sufficient for a contract. See Shattuck v. Klotzbach, 2001 WL 1839720 (Mass. Super. 2001).

So maybe this isn’t the *perfect* way of creating a contract. But it has to be weighed with the need for expediency in the larger system. And, as a law journal and forum, isn’t it part of our job to test the waters and try new things to push the edge of legal thinking and processes? BCIPTF was the first law journal to be completely on-line. We have to continue this tradition of keeping new and current in the face of uncertainty.

Local rules for patent cases have become all the rage these days.  It all started with the Northern District of California, followed by the Southern District of California, Eastern District of Texas, and the Northern District of Georgia, amongst others.  Some judges in jurisdictions without local rules have even adopted very similar sets of rules for their own use. 

These rules all have common features.  They require early disclosures of Preliminary Infringement Contentions and Preliminary Invalidity Contentions, together with supporting documents.  They require parties to set out a schedule at the Rule 26 conference, deciding the course of claim construction.  Parties must exchange lists of terms to be construed, preliminary constructions, and then submit a joint claim construction statement.  Construction briefs must be written.  Finally, the claim construction hearing (or “Markman Hearing”) is held, where the judge hears both parties’ constructions and supporting evidence, and finally decides on the construction to be used for the rest of the litigation.

The advantage of these patent local rules is that they set deadlines for the completion of claim construction discovery and the hearing, thus pushing the cases along the court docket.  Parties can focus early on what terms they need to research and construe, and what interpretations will work best for their arguments.  Early disclosure ensures cooperation in these endeavors.  Jurisdictions with these patent local rules are thus popular with plaintiffs who want resolution quickly.

However, patent local rules have been criticized because they may focus the issues too early, before the parties ( and the judge) really know what is at stake.  Rules that do not allow changes in construction after preliminary exchanges may be too rigid as parties realize later in the case that they missed important issues.  Further, many of these procedural events occur before the judge is able to comprehend technology involved.  For this, many have recommended neutral tutorial sessions for the judge, or assistance of Special Masters to help the judge learn the technology or science involved in the case.

The Boston Globe recently ran an article by Sacha Pfeiffer regarding the possibility of drafting patent local rules for D. Mass..  Judge Stearns gave positive comments, and a few other judges have responded positively.  The current President of the BPLA, Lee Bromberg, said that applying patent local rules in D. Mass. would make the jurisdiction more attractive for plaintiffs, lowering costs of litigation for local businesses (particularly some of the smaller biotech companies), and also boost business for local hotels, restaurants, law firms, and support as more people come to litigate.  Just look what making patent litigation more attractive did for E.D. Tex.!  It will be an interesting story to follow as rules are drafted and tried out by the D. Mass. judges.      

Judge Nancy Gertner scathingly rebuked the FBI for its illegal and unjust activity in convicting four men for a murder they didn’t commit. The criminal charges were overturned six years ago; this is the civil side of the picture. Their appeals largely hinged upon the fact that a brutal hit-man turned FBI informant, Joey “the Animal” Barboza, framed them for the killing.

Unfortunately, two of the men, Tameleo and Greco, died in prison. The other two, Salvati and Limone, spent more than 30 years in prison.

Yes, I agree that the FBI should be punished for their blatant disregard for the law some 30 years ago. But I resent that these four men are portrayed as wronged “innocents.” They were all part of the Cosa Nostra gangland in Boston. They came in with dirty hands. Perhaps one or two of them were mere hangers-on, lowlife peons, but Tameleo was reputedly consigliere of the New England mob, and Limone was a Boston leader.

And, on a side note, the WBUR reporter, Fred Thys, is a graduate of my alma mater, Williams College. Hurrah!

To create a condominium in Boston, you must obtain a Tregor Tax stamp from the City Hall. The Tregor Tax was created by a Boston politician who wanted to curb the condo-ization of apartments and houses in the city. When you create a condo, you get the first condo for free; every condo thereafter costs $500. So if you’re creating 11 condos, you have to pay 10 * $500 = $5,000 to get your Tregor Tax stamp.

The Tregor Tax stamp goes on the master deed of your condominium project. To obtain it, go down from the third floor to the mezzanine. Go around the central offices and to Window 31. There you present your master deed for their review along with a bank check or a check from an IOLTA, conveyance, or client’s account fund. If all pans out well, you get a stamp and a signature from someone in the back.

And now the procedure for obtaining a Tregor Tax stamp in Boston is on-line. (Until this moment, there’s only a Craigslist mention of this on Google. And I’m pretty sure that “Tregor” is the correct spelling because “Traeger” and “Trager” came up with nothing.) Best of luck to all of you, and please remember to tip your waitress.

I was browsing through Massachusetts Superior Court slip opinions during this mind-numbing LexisNexis training, and I came across Commonwealth v. Maccini, No. 06-0873, slip op. (Mass.Super. April ___, 2007). This is a typical child pornography case where a cop in Ohio entered a few chatrooms and was solicited by a guy in Massachusetts who then sent him child porn.

The defense is that the child porn should be suppressed because interception of that material is in violation with the Massachusetts wire tap statute. Well, that fails because the communications were “tapped” in Ohio, and therefore the Massachusetts statute doesn’t apply. Furthermore, generally e-mail is treated more like postal mail than phone conversations, and so most courts don’t apply wire-tap statutes anyways.

Here’s what Judge Fabricant thought about it:

The question presented by this motion is whether the defendant’s e-mail and instant message communications were unlawfully intercepted within the meaning of the statute. The Court concludes that they were not, for each of two distinct reasons: First, Haueter received and recorded the communications not in Massachusetts, but in Ohio, where he was not subject to the Massachusetts statute or any similar statute; and second, Haueter’s receipt and recording of the defendant’s communications was not secret, but rather was with the defendant’s knowledge and implicit consent.

In explanation:

In State v. Lott, 152 N. H. 436, 439-442 (2005), the Supreme Court of New Hampshire applied a statute similar to ours to facts virtually identical to those presented here. After thoroughly exploring the nature and characteristics of electronic mail and instant messaging, the Court concluded that the defendant there, by using those methods of communication, “as a matter of law, consented to the recording of his communications,” because recording on a computer is inherent in such communications. Electronic mail, the Court reasoned, is essentially the equivalent of leaving a message on an answering machine; one who sends an e-mail anticipates that it will be recorded. Lott, supra, 152 N. H. at 441, citing State v. Townsend, 57 P. 3d 255, 260 (Wash. 2002). See also United States v. Maxwell, 45 M. J. 406, 418 (U. S. C. A. Armed Forces, 1996) (likening e-mail to sending a letter; sender retains no control, and no expectation of privacy). Instant messaging, similarly, is automatically recorded on the recipient?s computer. The recording remains as long as the chat window is open, and may remain indefinitely if the recipient uses any of various options that are inherent in the instant messaging program to preserve it. Lott, supra, 152 N. H. at 441, citing State v. Bouse, 150 S. W. 3d 326, 329 (Mo. Ct. App. 2004). One who uses these methods of communication, the Court concluded, is on notice of the inherent recording, and implicitly consents to it. Lott, supra. The Lott case, although not binding on this Court, is persuasive, and this Court adopts its reasoning to reach the same conclusion.

So, again, it’s OK for the government to search and seize your electronic communications. Basically, once you send a message to someone else, you do it knowing that they are keeping a copy of it. But does that mean that it’s not private? Does that mean you don’t expect them to send it to the general public? This case doesn’t get into any “expectation of privacy” reasoning; it avoids it altogether. But it’s still a good summary of the current state of the law, pre-Long, and that’s why I’m posting on it.