Someone to Watch Over Me

How do you like them Apples?
As the “internet of things” expands in power and scope, concerns build about individual privacy and the potential consequences of “smart” technology for due process as we know it. Industry giant Apple and its coveted, leading-edge product line are predictably at the forefront of the controversy.

Jailbreaking...but not the kind they probably hoped for

Law enforcement cannot compel a person to recite the combination of a safe [1] whose contents might incriminate him or her, but what about the passcode to a mobile phone [2]? What about iPhone’s facial-recognition mechanism for access? If your face is the key with which you unlock your device, how can that be private information? Should an officer need your permission [3] to use your face? How about unlocking a device [4] with your fingerprints? Your fingerprints themselves, after all, are not private information in the eyes of the law [5]. And if you’re dead – can investigators use your cold, dead fingers? In the case of one defendant, they sure tried [6] -- with about the same luck any of us has on a cold day. (Maybe they should just make their own lifelike replicas of your cold dead fingers [7]!)

Settled law, disruptive technology

In 2014, SCOTUS ruled unanimously in Riley v. California that police who seize a mobile phone upon arrest cannot, under most circumstances, conduct a warrantless search of the device’s ESI. [8] Seizure, in this case, is not unreasonable, but searches generally still require a court order, or “exigent circumstances,” a phrase whose meaning they clarified in their Missouri v. McNeely decision the previous year [9]. Local police may continue to push that envelope, and citizens under arrest will not always be well-equipped to push back.

And each time the law catches up to the state of the art, technology finds a new way to outpace it.

The popular Apple Watch Series 4 adds a new level of complexity to this dilemma, with its built-in capability to dial 911 on behalf of a wearer who has fallen and is unresponsive, and to transmit the wearer’s GPS location to dispatch, if certain false-alarm failsafe protocols are not activated [10]. This might appear, on its face, to be little more than a modern-day version of the LifeAlert button (“I’ve fallen! And I can’t get up!”). But the LifeAlert system is purpose-specific: no one wears it without knowing it does this. A typical Apple Watch user could be unaware of the device’s capability to communicate information to first-responders; the function seems almost ancillary to the other myriad things the watch can do.

The wearer could also be unaware of a crucial limitation on his or her Fourth Amendment Rights, to wit: the community caretaking exception [11], which allows police to enter private property if they believe emergency assistance is needed. This clause creates the potential for timely lifesaving aid to be rendered when a person in grave danger is incapacitated. It also has the potential for misapplication or abuse.

D***it, Janet!

Suppose, in your haste to get to work, you leave your Apple Watch on the dresser. Your beloved ferret, Janet, finds it. She carries it around for a while, looking for a nice place to hoard it, but as she schleps her way along the tops of your kitchen cupboards, a sneeze overtakes her, and she drops the watch from her teeth. Apple Watch sensed movement until now, and now it has detected a “fall.” It blares an alarm and prompts you with response options: whether you fell or not, whether you’re OK. Only, you’re not there to respond. Your ferret scurries back along the shelves, knocking down a cookie jar, and finally she hides in the spice rack while the alarm blares for several more minutes. Police arrive as they would on a standard “welfare check” [12]. They knock on your door, and, hearing no response, they break in. They find no casualties, of course, save for the blaring watch on the kitchen floor...and your massive stash of weed, in the shards of the cookie jar Janet smashed during her hasty retreat.

That hypothetical may be far-fetched, but there are countless, less-cartoonish permutations of this scenario, with potentially life-changing implications. Although the Series 4 has this emergency alert function as an “opt-in” feature, few users are likely to weigh the benefits against the risks of said opting. The admissibility of evidence obtained under such circumstances may come to be a subject of rigorous debate.

Are you OK? Please respond.

Reflection questions for the class:

• What are the Fourth and Fifth-Amendment rights at stake if an Apple Watch “narcs” on its owner? Can the contents of your broken cookie jar be seized and used as evidence against you?
• What pros and cons do you see if Apple allowed users to program an emergency contact known to them personally, in lieu of 911 dispatch?
• As our “smart” devices implement more and more biometric security features, how else might other technological advances (such as 3D-printed prosthetics) play a role in their subversion?

Sources and further reading

[1] Doe v. United States, https://caselaw.findlaw.com/us-supreme-court/487/201.html
[2] “Florida Man Jailed for Refusing to Disclose Smartphone Passcode,” The Washington Times. https://www.washingtontimes.com/news/2017/may/31/christopher-wheeler-florida-man-jailed-for-refusin
[3] “Can Cops Force You to Unlock Your iPhone with Your Face?” Findlaw. https://blogs.findlaw.com/blotter/2018/10/can-cops-force-you-to-unlock-your-iphone-with-your-face.html
[4] “The government wants your fingerprint to unlock your phone. Should that be allowed?” LA Times. http://www.latimes.com/local/california/la-me-iphones-fingerprints-20160430-story.html
[5] “Fingerprints: The First ID” FindLaw. https://criminal.findlaw.com/criminal-procedure/fingerprints-the-first-id.html
[6] “Yes, Cops Are Now Opening iPhones with Dead People’s Fingerprints.” Forbes. https://www.forbes.com/sites/thomasbrewster/2018/03/22/yes-cops-are-now-opening-iphones-with-dead-peoples-fingerprints/#69ebba13393e
[7] “Michigan police 3-D printing murder victim’s finger to try to unlock his phone.” Rawstory. https://www.rawstory.com/2016/07/michigan-police-3-d-printing-murder-victims-finger-to-try-to-unlock-his-phone
[8] Riley v. California. Bloomberg Law. https://www.bloomberglaw.com/public/desktop/document/Riley_v_California_No_13132_and_13212_US_June_25_2014_Court_Opini?1539112343
[9] Missouri v. McNeely, Oyez. https://www.oyez.org/cases/2012/11-1425
[10] “Apple Watch’s new auto-911 calls after falls may tumble into legal trouble.” Arstechnica. https://arstechnica.com/tech-policy/2018/09/how-the-new-apple-watch-will-call-911-after-a-fall-if-you-want-it-to 
[11] United States v. Cervantes, USCourts.gov. http://cdn.ca9.uscourts.gov/datastore/opinions/2012/05/16/09-50521.pdf
[12] “What is a Police Welfare Check?” Black’s Law Dictionary. https://thelawdictionary.org/article/what-is-a-police-welfare-check/

Moonlight in California

Moonlight in California

US vs. Sierra Pacific Industries, Inc.

I could have stopped the fire, but I was high…

On September 3, 2007, at approximately 2:00 pm, U.S. Forest Service employee Karen Juska arrived at Red Rock Tower in Plumas and Lassen National Park in the California Sierra Nevada mountains to relieve the previous watchman.  Juska found said watchman standing on the tower’s catwalk, peeing on his bare feet.  Not far away from the tower, Juska found a marijuana pipe and the employee she was taking over for smelled like pot.  Shortly after this fun little incident, a fire would start that would ultimately scorch just under 65,000 square miles of protected California forest. This fire would be known as the "Moonlight Fire."

We didn’t start the fire

U.S. and California authorities (hereafter known as Cal Fire, or the plaintiffs) investigated the fires and determined that Sierra Pacific Industries was at fault.  This was based on the discovery of two Sierra Pacific bulldozers working in the area that Cal Fire determined was the origination point of the fire.  Authorities theorized that one of the bulldozers struck a rock, causing a spark which then started the fire.  They claimed they had the testimony of one the bulldozer drivers that corroborated this theory. (Ahem…spoiler alert…they did not.)

A mighty flame followeth a tiny spark

Investigators failed to note the appearance of Ryan Bauer, who was cutting firewood nearby with an illegally altered chainsaw.  In fact, Bauer had false alibi, which was that he had been at his girlfriend’s house all day instead of in the forest with his chainsaw. They also failed to prove the origin-and-cause report’s point of origins.  Later investigation by the defendant proved that the points of origin (which proved the plaintiff’s bulldozer-hitting-a-rock theory) were incorrect. The Cal Fire investigator who placed the point of origin flags conveniently couldn’t remember anything about the point of origin discrepancy because he destroyed all his notes. Whoops!

Oh no, you didn’t!

Despite some concerns about some fraudulent discovery they found out about on the part of the plaintiffs, Sierra Pacific agreed to a $55 million settlement while protesting their innocence.  Sierra Pacific was pressured into the settlement: the plaintiffs had threatened them with a $1 billion lawsuit.  The federal settlement did not include state action, and while the state action was pending, Sierra Pacific found out about more instances of misconduct with the federal court case.  Discovery no-nos like “’false testimony, spoliation of critical evidence,’ and abuses that had ‘permeated nearly every single significant issue in the case.’”

Ha! In your face Cal Fire!

On the state court level, the state court voted in favor of Sierra Pacific, stating that they found “misconduct so ‘deliberate’ and ‘egregious’ that ‘any remedy short of dismissal’ would be ‘inadequate.’”  The state court dismissed Cal Fire’s case against Sierra Pacific.  An appellate court would later affirm the dismissal based on the discovery misconduct of Cal Fire.

Wait, hold up!

Sierra Pacific then moved to have the federal settlement dismissed based on the preponderance of evidence that the plaintiff had committed deliberate misconduct (under Rule 60(d)(3), which alleges fraud on the court). Problem was, the motion of alleged misconduct was with the U.S. Attorney’s office.  The U.S. Attorney’s office was in daily contact with…wait for it…judges in the Eastern District of California.  The Chief Judge on the Ninth Circuit directed each judge on the Ninth Circuit to consider recusal individually due to a possible conflict of interest.  Only one actually did it. 

‘Cause he’s a life ruiner.  He ruins people’s lives.

One the judges, Judge Shubb, heard the petitioner's motion.  He determined that Rule 60(d)(3) did not apply to Sierra Pacific’s situation.  He stated that because Sierra Pacific did know about some of the fraud prior to the settlement, Rule 60(d)(3) didn’t cover it.  The Rule only applied to after-discovery fraud.  So even though Sierra Pacific learned more about the discovery fraud after settling, it didn’t count because they knew some of it before.  Additionally, Judge Shubb decided that the after-discovery fraud that Sierra Pacific found out about wasn’t that big a deal.

And the hits just keep on coming

The Ninth Circuit affirmed Judge Shubb’s decision.  They also felt like Judge Shubb did a fine job and there wasn’t any need for him to have recused himself. (By the way, there is a whole other issue with Judge Shubb tweeting about this case which I don’t have time to get into here but it is very interesting.  Read the articles linked below for more information.)  After the Ninth Circuit’s decision, Sierra Pacific was invited to submit a Writ of Certiorari to the Supreme Court for October 2018’s session.  They were denied.

Up for discussion

First, what do you think about Judge Shubb’s decision? Did Cal Fire commit fraudulent activity?

Does Rule 60(d)(3) only apply to after-discovery fraud or can it include pre-trial fraud?

Despite being threatened with a $1 billion lawsuit, should Sierra Pacific have gone to trial, knowing there was some fraudulent activity on the part of Cal Fire?

What are the implications of this ruling for individuals and small companies rather than a gigantic company like Sierra Pacific?

Should there be some protections in place for fraud no matter when it’s discovered?  What would be the advantages/disadvantages of this?

Sources and for more information on the case:

A Wildfire of Corruption

DOJ Urges Justices to Pass on Judicial Tweeting Issue

Prosecutorial Fraud Arrives at the Supreme Court

Above the Law to the Supreme Court

Writ of Certiorari

Ninth Circuit Court of Appeals

Rule 60

Legal Considerations in the Case Against Harvey Weinstein

      In October 2017 The New York Times revealed multiple allegations of sexual misconduct committed by producer Harvey Weinstein[1]. Since then, over 90 women have come forward with similar claims[2]—prompting and garnering support for the #MeToo movement.

     As a reaction to negative media coverage, Weinstein hired a private investigation firm called Black Cube[3] to, “stop media publication of the mounting allegations of sexual-harassment against him”, and, “defend himself through legal action from serious and patently false allegations.”[4].

     Weinstein is named in multiple Federal and State civil cases. Allegations in these cases include: human trafficking, racketeering, civil rights violations and defamation.[5]

     After months of investigation,Weinstein was indicted by a N.Y. grand jury on criminal charges of predatory sexual assault, criminal sexual act in the first degree, and rape in the first and third degree.[6] If convicted, he faces life in prison.[7]

     To get a conviction, prosecutors will need to prove—beyond reasonable doubt—that Weinstein, “subjected another person to sexual penetration, and overcame the victim by force, threat of force, coercion, or deception.”[8]. The standard of proof in the State of New York provides that:

"no conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient, and which establishes beyond a reasonable doubt every element of such offense and the defendant`s commission thereof."[9]

   
      The Rape, Abuse & Incest National Network has reported that for every 1,000 rapes committed in the US, seven lead to felony conviction, and only six lead to imprisonment.[10] According to former N.Y. State sex crimes prosecutor Meredeth Donovan, sex-based cases are some of the most difficult to prove. In an article for the New York Daily News, Donovan stated:

"To prove rape in New York, I must prove penetration. To prove criminal sexual act, I must prove contact between certain body parts. The perpetrator must be identified, arrested and evidence collected without violating constitutional protections." 

"once inside a courtroom, the victim's behavior before, during and after the assault will be used to assess credibility. We strive for impartiality but personal experiences color our assessments. If the victim's behavior doesn't comport with what we view as normal, her credibility will suffer."[11]. 

Prosecutors have yet to produce any physical evidence in this case.

      Last August, Weinstein’s attorney filed a motion to dismiss the N.Y. case[12], asserting that the N.Y. District Attorney withheld letters, photographs and email from the grand jury—evidence he says discredits Weinstein’s accusers and proves that they each maintained consensual relationships with Weinstein well after the alleged assaults occurred.

      Federal prosecutors in New York recently started an investigation into Weinstein’s dealings with Black Cube, and whether the firm committed wire fraud, and broke “other laws” in an effort to, “silence women who accused [Weinstein] of sexual misconduct”. Weinstein’s attorney claims that, “Black Cube was retained by prominent lawyers,” who Weinstein believed, “would never have authorized illegal activity of any kind.”. 

      Weinstein continues to deny all wrongdoing.[13]

Possible questions up for discussion:

1. What are your thoughts on the New York Times article?

2. What do you think about Weinstein’s hiring of Black Cube?
3. What are your thoughts on New York’s standard of proof?
4. Considering the media coverage of this case, is an impartial jury even possible?

4. What should happen if it is proven that the N.Y.D.A. withheld evidence from the grand jury? 

5. If Weinstein is only convicted in the civil cases, will justice have been served for his accusers?  

6. Could substantive due process be an issue in this case?

7. How should federal and state investigators/prosecutors proceed if Weinstein is acquitted or exonerated from the other criminal and civil suits filed against him?

In formulating your comments consider Articles IV, V, VI & XIV of the US Constitution, due process, equal protection and jurisdiction.

_________________________________________________________________

[1] https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html
[2] https://www.flare.com/celebrity/harvey-weinstein-victims/
[3] https://www.blackcube.com/
[4] https://www.wsj.com/articles/federal-prosecutors-exploring-new-charges-against-harvey-weinstein-1536268233
[5] https://www.thewrap.com/harvey-weinstein-slapped-3-new-criminal-charges-new-york/
[6] https://www.nytimes.com/2018/05/30/nyregion/weinstein-indicted-rape.html
[7] New York Penal Law § 70.00
[8] New York Penal Law § 130.70
[9] New York Penal Law § 70.20
[10] https://www.rainn.org/statistics/criminal-justice-system
[11] www.nydailynews.com/opinion/convictions-sex-crimes-cases-hard-article-1.1053819
[12] https://images.law.com/contrib/content/uploads/documents/389/39573/8.3.18-Weinstein-Motion-003.pdf
[13] https://www.wsj.com/articles/federal-prosecutors-exploring-new-charges-against-harvey-weinstein-1536268233

Quash Service

Quash Service 

Court of Appeals of Utah.

BONNEVILLE BILLING, Plaintiff and Appellee, v. Rick WHATLEY and Maryam Whatley, Defendants and Appellant.

No. 970148-CA.

    Decided: December 04, 1997

Find the case here: 

https://caselaw.findlaw.com/ut-court-of-appeals/1001297.html

Background

In 1990, Whatley’s wife agreed to pay two different physicians for their medical services.  Rick Whately, her husband, was named as the responsible party to be billed.  She listed his business address as 50 W. Broadway, SLC, UT.  The charges were incurred and were sent, by the medical providers, to Bonneville Billings & Collections, Inc. (Bonneville).  Bonneville filed a complaint against Mr. and Mrs. Whatley for $3500, but the constable was unable to serve Whatley.  The constable crossed out the address of 50 W. Broadway, SLC, UT and noted, “Not here.  They believe he works out of Long Beach, Calif. office.”  Bonneville filed a motion with the court for an option of delivery by mail to the residence’s last known address; the court granted the motion.  After another unsuccessful attempt to deliver the summon’s at Whatley’s place of employment, Bonneville filed a motion for alternative service.  The motion was granted and the summons was mailed to Whatley’s place of employment.  After these many attempts of service, no answer had been filed by the defendant within the 21-day allotment (FRCP Rule 12) https://www.federalrulesofcivilprocedure.org/frcp/title-iii-pleadings-and-motions/rule-12-defenses-and-objections-when-and-how-presented-motion-for-judgment-on-the-pleadings-consolidating-motions-waiving-defenses-pretrial-hearing/.  The trial court entered a default judgment on Whatley along with writs of garnishment.  In 1995 Whatley became aware of the judgments made against him while he was in the process of purchasing a home.  “On November 6, 1995, Whatley made a special appearance and moved under Rule 60(b)(5) of the Utah Rules of Civil Procedure to quash service and set aside the default judgment, arguing that the judgment was void.”

 https://1.next.westlaw.com/Document/I009e9fa2f57311d9bf60c1d57ebc853e/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad73aa5000001660d2091c0cc2f4835%3FNav%3DCASE%26fragmentIdentifier%3DI009e9fa2f57311d9bf60c1d57ebc853e%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=7114931fecb7f036ec3bafbb2f9b729d&list=ALL&rank=2&sessionScopeId=7f5b10bec188f07cc3024230e3c1f9b327421617030ff44e7c1b55f369ec442e&originationContext=Smart%20Answer&transitionType=SearchItem&contextData=%28sc.Search%29

Utah Rules of Civil Procedure:  

https://www.utcourts.gov/resources/rules/urcp/

Due Diligence

Is this a case of the defendant trying to avoid paying his bills, or did he honestly not realize he owed money to these medical providers?  Do you think Bonneville did their due diligence in trying to track down and service the defendant?  What was the defendant’s prayer for relief?  The defendant made a “special appearance” claiming, according to our reading in THOMAS A. MAUT & DAVID MARCUS, PRETRIAL, NINTH EDITION, a Rule 12(b) defense of lack of jurisdiction.  Mr. Whatley claimed he was not served properly.   Why would the court lack personal jurisdiction of Whatley?

Conclusion

The appellate court reversed “the trial court’s denial of Rule 60(b) motion, set aside the default judgment, and quash service."  When it comes to due diligence, this case proves that the plaintiff must exhaust all his resources in servicing a complaint to the defendant.  Due process is provided for the defendant who has the right under Amendments V and XIV of the United States Constitution, to know who is suing him and why.

  

The King of Bullsh*t News, E-Discovery & The Duty to Preserve ESI

“The King of Bullsh*t News”

On April 24, 2015, BuzzFeed News–the news arm of BuzzFeed Inc.,–posted an article entitled “The King of Bullsh*t News,” accusing a UK based news agency, Central European News (CEN), and its founder, Michael Leidig, of selling bizarre, sensational, misleading, and in some cases, blatantly false news stories to media outlets throughout the world. Within the publication, BuzzFeed News identified several stories it alleged CEN fabricated, some in part, and others entirely.  You’ve seen the story about the contaminated sashimi, right? That was one such new story. 

Before the publication of “King of Bullsh*t News,” BuzzFeed reached out to Leidig for comment.  He responded by asserting/alleging that the article’s contents were defamatory and that he would initiate a lawsuit if Buzzfeed published the article, which it did two days later.  Plaintiffs, Leidig & CEN, (hereafter “Leidig”) filed a libel suit against BuzzFeed (defendant) in a N.Y. federal court in January 2016.

  

Spoilation of Evidence

During the initial discovery period in 2016, Leidig produced over 400 documents lacking metadata, including PDFs and text files that Leidig and CEN employees could have potentially manipulated.  CEN also disabled news websites after threatening BuzzFeed with litigation and deleted the emails of two vital witnesses.  The court compelled Leidig to provide a second production of materials including the metadata with the added threat of sanctions. BuzzFeed rejected the second document production.  In a later deposition, a witness for Leidig testified that they had “inadvertently changed or deleted the metadata” when moving the files to a hard drive.  In September 2017, BuzzFeed filed sanctions motions against Leidig for the spoliation of evidence.

Conclusion

As noted from our reading, parties must preserve evidence relevant to pending or future litigation.  Spoliation occurs “when evidence is destroyed, significantly altered, or not preserved properly when litigation is pending or reasonably foreseeable.” In this case, the court considered whether sanctions for spoliation under Rule 37(e) were appropriate, and found that although Leidig failed to take the appropriate steps to preserve evidence, there was no “intent to deprive” BuzzFeed of the documentation.  Instead, the court ordered sanctions against Leidig in part, limiting the documentation plaintiffs could use as evidence to support their claim.

Do you agree with the court’s analysis in this case regarding the sanctions for e-Discovery violations under Rule 37(e)? Why or why not?