Los Angeles Lawyer June 2007 Free Package Pickup Rules

2007 Lawyer-to-Lawyer Referral Guide

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Advice and EARN MCLE CREDIT Consents Los Angeles lawyer Diane Karpman analyzes the enforceability of advance consents page 23

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23 Advice and Consents BY DIANE KARPMAN The enforceability of advance consents depends in large measure on their speciﬁcity and the sophistication of the client Plus: Earn MCLE legal ethics credit. MCLE Test No. 160 appears on page 25. 32 Pollution in the Blogosphere BY JEFFREY D. GOLDMAN AND ERIC J. GERMAN The explosive growth of blogs has led to yet more techniques for online scamming

39 Special Section 2007 Lawyer-to-Lawyer Guide

DEPARTMENTS

Los Angeles Lawyer 10 President’s Page 46 Computer Counselor Overcoming e-discovery challenges with the magazine of Time’s up BY CHARLES E. MICHAELS new technologies The Los Angeles County BY RAMANA VENKATA AND MICHAEL A. GEIBELSON Bar Association 12 Barristers Tips Building a successful mentoring 52 Closing Argument June 2007 relationship First thing, let’s jail all the lawyers Volume 30, No. 4 BY GAVIN HACHIYA WASSERMAN BY KEITH PAUL BISHOP

13 Practice Tips 49 Classiﬁeds The advantages of using electronic 50 Index to Advertisers COVER PHOTO: TOM KELLER service providers BY WAYNE G. NITTI 51 CLE Preview 17 Practice Tips How licensing issues are affecting recent media developments 06.07BY DOMINIQUE R. SHELTON ARBITRATION and MEDIATION LosAngelesLawyer ALL TYPES OF DISPUTES BETWEEN INDIVIDUALS AND COMPANIES VISIT US ON THE INTERNET AT www.lacba.org/lalawyer International Trade Disputes • Discovery • Accounting and Financial E-MAIL CAN BE SENT TO [email protected] Statement issues and disputes • Corporate and small business marketing issues and disputes • Human Resource issues, and disputes between EDITORIAL BOARD large corporations and small companies • Contract disputes of all kinds • Chair Homeowner Associations disputes and issues • Domestic and partnership JACQUELINE M. REAL-SALAS relationship disputes including divorce Articles Coordinator ALL REAL ESTATE, INCLUDING: Evaluations • Contracts • Zoning • Development • Construction • Secondary CHAD COOMBS Marketing • Borrowers/Lenders • Residential Escrows • Residential • Commercial • Apartments • Lending • Contracts JERROLD ABELES Thirty years as CEO, including a nationwide company. Eight years as an Arbitraitor DANIEL L. ALEXANDER HONEY KESSLER AMADO ■ DAVID W. D RESNICK, PRESIDENT ARBITRATOR/MEDIATOR ETHEL W. BENNETT tel: 818-790-1851 • fax: 818-790-7671 • e-mail: [email protected] • www.mediationla.com R. J. COMER ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG ERNESTINE FORREST Need help deciding between a putter STUART R. FRAENKEL MICHAEL A. GEIBELSON TED HANDEL and a wedge? JEFFREY A. HARTWICK STEVEN HECHT LAWRENCE J. IMEL SCOTT KLOPERT JOHN P. LECRONE PAUL MARKS SEAN MORRIS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. DENNIS PEREZ GARY RASKIN DAMON RUBIN KURT L. SCHMALZ DAVID SCHNIDER HEATHER STERN GRETCHEN D. STOCKDALE TIMOTHY M. STUART Get NITA training and make the KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER right decisions, every time. PATRIC VERRONE MICHAEL WISE STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor Deposition Skills LAUREN MILICOV Senior Editor August 2–4 • 21 CLEs ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Deposing the Expert Witness Advertising Director LINDA LONERO August 5 • 5 CLEs Account Executive MARK NOCKELS Marketing and Sales Coordinator VICTORIA PUA Chapman University • Orange, CA Advertising Coordinator WILMA TRACY NADEAU Register for both and save $245 Administrative Coordinator MATTY JALLOW BABY

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a To register: www.nita.org/CCDP combined issue in July/August and a special issue in the fall, by the Los Angeles County Bar Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing 877.648.2632 offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Get $100 off - use code CCDPAD online or by phone Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: ADDRESS SERVICE REQUESTED. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. Copyright © 2007 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by Banta Publications Group, Liberty, MO. Member Business Publications National Institute for Audit of Circulation (BPA). National Institute for The opinions and positions stated in signed material are those of the authors Trial Advocacy Advocacy and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer June 2007 Free Package Pickup rules. Because frankly, I can’t afford to send 50% of our staff to the Post Ofﬁ ce.™

We’re pretty much chained to our desks here. So this Free Package Pickup is huge. Betty picks up our packages on her stop and gets them right in the mail. Packages go. We stay. Click usps.com/smallbiz to learn more.

Available with Express Mail,® Priority Mail,® and International services. Visit usps.com/smallbiz for terms. ©2007 United States Postal Service. Eagle symbol and logotype are registered trademarks of the United States Postal Service. Postal carrier Betty Davis, Shinnston, WV. LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION EMPLOYMENT 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-1881 TRIAL ATTORNEYS Seeking an Experienced Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS Arbitrator/Mediator? President We specialize in handling Employment & Labor Law Cases CHARLES E. MICHAELS from attorney referrals in Los Angeles,Ventura, Santa President-Elect Barbara, San Bernardino, Riverside and Orange County. GRETCHEN M. NELSON STEVEN Senior Vice President A Full Service Employment Law Firm with DANETTE E. MEYERS extensive experience in the following specialties: RICHARD Vice President • Wrongful Termination DON MIKE ANTHONY • Age Discrimination SAUER, ESQ. Treasurer JULIE K. XANDERS • Race Discrimination Assistant Vice President • Disability Discrimination COUNSELOR AT LAW • SINCE 1974 ALAN K. STEINBRECHER • Pregnancy Discrimination Assistant Vice President • Sex Discrimination LINDA D. BARKER • Sexual Harassment Assistant Vice President • Violation of Whistling Blowing Laws “He is truly a master JOHN D. VANDEVELDE • Employment Manual Preparation in his art.” Immediate Past President EDITH R. MATTHAI • Family Leave Act Executive Director • Medical Leave Act 6,000 STUART A. FORSYTH • Labor Law Violations Settled over 5,000 Federal & Associate Executive Director/Chief Financial Officer • Severance Package Agreements BRUCE BERRA State Litigated Cases Associate Executive Director/General Counsel You will be paid a referral fee within the W. CLARK BROWN Guidelines of the California State Bar BOARD OF TRUSTEES P. PATRICK ASHOURI 323.933.6833 TELEPHONE NICOLE C. BERSHON GEORGE F. BIRD JR. Tel 310.826.6300 DANIEL S. BISHOP E-MAIL www.employmentattorneyservices.com [email protected] JOHN M. BYRNE JOHN CARSON 4929 WILSHIRE BOULEVARD, SUITE 740 ANTHONY PAUL DIAZ EMPLOYMENT TRIAL ATTORNEYS STACY L. DOUGLAS LOS ANGELES, CALIFORNIA 90010 Representing Both ALEXANDER S. GAREEB ANTONIO J. GONZALEZ Employees and Employers BRIAN S. KABATECK KARL H. KNICKMEYER JR. ROBERT N. KWAN PHILIP H. LAM DAVID A. LASH LAWRENCE E. LEONE RICHARD A. LEWIS CINDY J. MACHO ELAINE W. MANDEL DAVID F. MICHAIL JEFFREY P. PALMER ELLEN A. PANSKY THOMAS F. QUILLING SUSAN ERBURU REARDON ROGER D. REYNOLDS KELLY RYAN DEBORAH CRANDALL SAXE MARGARET P. STEVENS KIM TUNG GAVIN HACHIYA WASSERMAN ERIC A. WEBBER AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER-MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES JOHN M. LANGSTON BAR ASSOCIATION JUVENILE COURTS BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LAWYERS' CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer June 2007

ATTENTION LOS ANGELES LAWYERS:

t is hard to believe that my service as chair of the Los Angeles Lawyer Editorial Board is coming to an end this Now is the Perfect Time to month. The time spent leading the magazine’s diverse vol- Purchase or Refinance! I unteers during the 2006-07 bar year has been well worth the

With interest rates near 40-year record rich experiences gained in return. Aside from being chair, my lows and home prices holding steady, now is the ideal time to purchase a home or time as an Editorial Board member has been a great way to stay current on devel- investment property, or to refinance. Call opments in the law and, more important, leave a mark on the legal profession. me today to ask for your complimentary Board members have the opportunity to work with and learn from knowledge- mortgage assessment. able authors about a wide range of legal subjects. We also have the chance to build Karen Natapoff new or cement existing relationships with fellow board members. With close to 40 Senior Loan Consultant lawyers from a variety of practices serving on the board, it is likely that the answers to any questions about confounding or unfamiliar legal issues can be found within Cell: 310.849.8653 the group. I look forward to stepping down as chair and taking a seat next to my Email: [email protected] www.karennatapoff.net fellow board members for many more years to come. The work of our exceptional authors continues to gain notice. This past February, the California Supreme Court, in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova,1 cited an article, published in the magazine’s January 2005 issue, that was written by Editorial Board member Bruce Tepper. Numerous other

Metrocities Mortgage, LLC, is a Delaware limited liability company Los Angeles Lawyer articles have been cited by courts, law reviews, and other legal licensed by the California Department of Corporations under CRMLA. Information is subject to change without notice. This is not an offer for extension publications. These citations occur not only because our readership includes lawyers, of credit or a commitment to lend. All calculations are approximations. All rates, fees and programs are subject to change and/or withdrawals from the market judges, and legislators but also because our articles consistently provide excellent, in- without notice. 1206-45 depth analyses of current legal issues. The fact that our articles are frequently referenced conﬁrms that the magazine and the volunteer efforts of our authors and the Editorial Board play an important role in shaping the law. Writing for the magazine 20 Years Blue Chip is an excellent way to gain recognition and expert status in a practice area. With my last column, I would like to encourage all of you, our readers, to vol- Experience unteer. The best way to get started is to develop and write an article for the maga- Resolving the zine. We are always eager to publish well-written articles on substantive legal issues in every area of law. We do not publish articles that have already appeared in print World’s Most elsewhere. Our authors are encouraged to bring depth and context to current legal developments that lawyers need to know about in their daily practices. If you Complex Disputes would like to become one of our authors, please visit the magazine at www.lacba.org/lalawyer for instructions on how to submit an article. Also, consider becoming a board member next year. You will have the opportunity to edit a variety of articles and meet many of your fellow practitioners, either as potential authors or fellow board members. If you would like to ﬁnd out more about volunteering for the magazine and the time commitment involved, feel free to contact me or any other board member. Finally, I would like to extend a sincere thank you to the magazine’s staff for their great efforts during the last 12 months and to Chad Coombs, who served as arti- Reginald A. Holmes, ESQ. cles coordinator with me and now assumes the role of Editorial Board chair for 2007- Arbitrator - Mediator - Private Judge 08. Best of luck to everyone. ■ Intellectual Property • Entertainment 1 International • Employment Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, ___ Cal. 4th ___, S132972 Business (Feb. 1, 2007) (citing Bruce Tepper, New Water Requirements for Large-Scale Developments, LOS ANGELES LAWYER, Jan. 2005, at 18). THE HOLMES LAW FIRM 626-432-7222 (Phone) 626-432-7223 (Fax) [email protected] www.TheHolmesLawFirm.com Jacqueline M. Real-Salas is a partner at Calleton, Merritt, De Francisco & Real-Salas, LLP, where Also available through the she specializes in estate planning, trust administration, probate, and elder law. She is the Amercian Arbitration Association 213.362.1900 or www.adr.org chair of the 2006-07 Los Angeles Lawyer Editorial Board.

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Time’s Up

THE GREAT FRENCH PHILOSOPHER, Albert Camus, wrote, “I shall tell and continuously innovate and improve its structures and services. you a great secret, my friend. Do not wait for the last judgment. It The Association’s Plans Committee and Governance Committee have takes place every day.” These words are particularly appropriate for taken a serious look at the major areas of the bar, how they relate to a president of this Association, whose term runs a mere 365 days. My one another, and how they respond to our many constituencies. We time is now short, and while presidents come and go, the needs of the are formulating a blueprint that will enable the board to look far Association and our profession never stop. That’s why it is important beyond any given moment, on any issue, and to provide direction in for us to have and to build upon a good foundation. achieving the Association’s long-range goals and objectives. These insti- When I was sworn in last June, I identified three areas in which tutional structures will facilitate your ability to be heard on impor- the Association needed to work: active institutional engagement, a tant issues. My heartfelt thanks to those who have served on those greater inclusiveness of our stakeholders in the affairs of the Asso- special committees. ciation, and long-range strategic planning. While I would like to While concentrating on these three important concerns of the report that we hit home runs in these areas, the reality is that we man- Associations, we have also achieved much in other areas: aged to hit singles and doubles. But the result is that they have put • Judicial elections. Last fall, we made a major effort to educate the us on base and in a position to score. public and publicize the Association’s evaluations of candidates run- Active institutional engagement. How we face the future affects ning for election to the superior court. Under the leadership of Brent all of us. To ensure that we are optimally organized as an Association, Braun, chair of the Judicial Elections Evaluation Committee, we sig- I appointed a special committee of members of the Board of Trustees nificantly upgraded our Web page, sent out multiple e-mails to all our to review our governance structure. The committee looked both members prior to the elections, and worked with the media to pub- inward and outward. Together we have worked to modernize our inter- lish our evaluations for contested judicial offices. nal structure and to create a framework to address the needs of our • The courts. Behind the scenes, we have continued to expand our members and constituent communities. It is my hope that by joining dialogue with the courts into a meaningful partnership in tackling some forces, working together, and listening to one another, we have set in of the most serious concerns facing our members, the profession, and motion a modernized bar that is equipped to meet the challenges ahead. the citizens of our state. Greater inclusiveness. We have taken very seriously our pledge to • Dialogues on Freedom. Last October, the Los Angeles Unified listen to our stakeholders by instituting a special membership com- School District honored the Association for its “Dialogues on Free- mittee whose goal is to open a new era in dialogue among the Asso- dom” program, in which, for the last five years, lawyers from the ciation’s constituencies. With the able assistance of the Association’s Association and judges have gone into many area high schools and marketing director, Tim Elliott, and trustee Bob Kwan, we con- guided the students through discussions on the freedoms and respon- ducted a survey of almost 6,000 members, the Association’s largest sibilities of being an American. Thank you, David Barker and your survey ever. We found that more than 90 percent of the respondents committee members. reported that their expectations in joining the bar had been success- • Disaster preparedness. In January we hosted a Bar Leaders’ fully met. Conference on disaster preparedness with experts from New York City The Barristers and their president, Gavin Wasserman, worked with and New Orleans discussing their experiences in the wake of the 9/11 our marketing department to reach out to local law schools. As a result, attacks and Hurricane Katrina. From that conference, which was we increased law student membership from a few hundred to more chaired by John Vandevelde, a Disaster Planning Task Force was cre- than 1,000. Thank you, Tim and Gavin. ated with volunteers George Bird, Dan Crowley, Luci Chun, Doug Our sections are an extremely important part of the Association, Griffith, and Cynthia Lebow. and we owe a debt of gratitude to their officers and executive com- • National recognition. The Association recently received four awards mittees for the tremendous work that they do for all of us. The pop- from the American Bar Association and three more from the National ularity of our sections is self-evident, with more than 14,000 paid mem- Association of Bar Executives in publications, Web design, and mar- berships. keting. When you consider that NABE makes only 5 awards annu- In April, the Board of Trustees approved the formation of the Senior ally to associations of our size, it represents a remarkable staff accom- Lawyers Section, modeled after the ABA’s Senior Lawyer Division. plishment. Under the initial and able leadership of David Pasternak, a former • Diversity. This month the Association is hosting a Diversity Summit. Association president, and assisted by such luminaries as Seth Its goal is to address the need to increase the number of people of color Hufstedler, Pat Phillips, and Joe Mandel, our senior lawyers section who become (and remain) lawyers by examining the “pipeline” will provide leadership as increasing numbers of our membership reach the latter stages of their careers. Charles E. Michaels, vice president and general counsel of LAACO, Ltd., is 2006- Strategic long range planning. To continue to serve our members 07 president of the Association. He can be reached at charles.michaels and the community, the Association must periodically reinvent itself @laaco.net.

10 Los Angeles Lawyer June 2007 through which youngsters eventually make their way into the profession. Senior Vice remc Virtual Offices President Danette Meyers is leading the effort on this long-term project. In a state bar that EVERYTHING AN OFFICE SHOULD BE...WITHOUT THE WALLS is 83 percent white, we can do better to reflect the communities that we serve. AVAILABLE IN 4 PRESTIGIOUS LOCATIONS Future Challenges DESIGNED FOR COMPANIES AND While there is much we can be proud of, HOME OFFICE PROFESSIONALS there is still much to be done as storm clouds swirl on the horizon. Simply put, the legal sys- • Established business presence tem today is not meeting the needs of most • Private phone number with professional telephone Americans. The majority of people caught up answering in the legal system are not represented by • Mail services counsel, and only 28 percent of the urgent • 24 hour accessible voice mail • Reception service legal needs of the state’s poorest residents • Access to a day office or conference room are met. Those most in need tend to be dis- • Full array of business services available proportionately poor, elderly, ill, handicapped, and minorities. I ask you to remember them, 4 Los Angeles Locations and to seek opportunities to serve them and >1999 Ave. of the Stars 11th Flr. >9911 West Pico Blvd. to support pro bono activities. >5959 Century Blvd. >6033 Century Blvd. Peter Drucker, the great management con- Call 310-356-4600 sultant, once asked me, “At the end of your Full time offices also available in 13 Southern California locations. life, what do you want to be remembered for?” It was a rhetorical question, designed to initiate a discussion of life’s significance. We concluded that at the end of our life, it’s not 1-888-551-REMC how successful we were in our careers that is WWW.REMCINC.COM meaningful, it’s not how much money we made, or how big a house we live in that matters. It’s about living a life of significance—about how significant we were in the lives of others, whether a loved one, a child, or a stranger in need of help. It’s about believ- ing in and acting on causes that are greater than ourselves. As this bar year closes, a heartfelt thank you is owed to the other leaders of the Asso- ciation with whom I have served and from whom I have learned much more. A special thank you is due to our executive director, Stuart Forsyth, and his capable staff; to the members of the board of trustees, sections, and committees; and to those of you who are actively working in great causes. I cannot publicly thank each of you, but you know who you are, and I am indebted to you. Your participation in the causes greater than your- self exemplifies what is best—and great—in America. Your officers have served you capably, and I wish my successor, Gretchen Nelson, much success during her term of office. I would also like to offer many thanks to my family and to my colleagues at LAACO, Ltd., who have made possible my ability to serve. When I look back in the twilight of my years, I will think of the great work that you have done, and I will remember the words of Margaret Mead: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.” Together we have made a difference. ■

Los Angeles Lawyer June 2007 11 barristers tips BY GAVIN HACHIYA WASSERMAN

Building a Successful Mentoring Relationship

FOR NEW LAWYERS, finding a mentor can be critical to professional The first and most important task for a prospective mentor and success. A good mentor-mentee relationship can open new doors a mentee is to communicate. While listening is always key, both par- and create new opportunities for both parties. Developing a successful ties also need to articulate what they are looking to accomplish. mentoring relationship requires, at the very least, a combination of This process sets up initial goals as well as boundaries on expecta- opportunity, communication, and commitment. However, knowing tions. The depth of commitment, trust, and rapport in a mentoring where to start is not as easy as it might seem. Students leave law school relationship can vary and progress, but not without communication. having studied cases and written papers. While networking and developing relationships may happen organically in the confined A Significant Commitment sphere of law school, once released out into the world, new lawyers Mentor and mentee have to be committed to not wasting each oth- often feel suddenly alone and adrift. er’s time. Some mentoring program experiences end up as extended But mentoring opportunities and programs do abound. Certain introductions, a series of infrequent lunch meetings without partic- employers create in-house mentoring programs, while bar associations ular purpose other than to socialize. While touching base is impor- can offer many opportunities to match attorneys with attorneys or tant, it can be done just as well at a bar event or networking recep- attorneys with students. Some of these programs involve group mention, where the pair might kill two birds with one stone. Either one toring, while other programs focus on more traditional one-on-one of the participants can be proactive in this regard. A brief e-mail mes- relationships. Some programs are completely free-form and organic, sage in advance can lay the groundwork for productive time together, while others are highly structured, with events and assignments to fos- much as an agenda for a meeting would do, and also present a goal ter bonds between the mentor and the mentee. Beyond mentoring pro- to energize the participants. For example, the goal could be for the grams, there are also professionals out there who are willing to be men- mentor to introduce the new litigator to some litigation partners at tors, and they only need to be approached by the right potential various firms. The two participants show up, chat and catch up, and mentee. then network, accomplishing something that sustains and grows the A prospective mentee should start with his or her law school, which mentoring relationship. may have a formal mentoring program or at least social events When a mentoring arrangement does not seem to be productive, hosted by the alumni association. Even at nonmentoring alumni it is best to be proactive even in the ending. A mentor or mentee who events, a prospective mentee can talk to mentor prospects. These events finds a counterpart to be unavailable or unresponsive should simply let alumni get to know one another and feel a bond between one send a friendly note stating that the sender recognizes the recipient another and their school, so new lawyers should feel free to step for- is very busy and invites contact if and when time permits. If it was ward and meet people. There is bound to be a member of the devel- just a bad time for the counterpart and things get better, then perhaps opment staff or an alumni association officer present who would be the relationship can be renewed; either way, the sender has put the happy to help with networking. ball firmly and politely in the other’s court. Bar associations, like alumni groups, are always looking for new, Participants should keep in mind that the mentoring relationship energetic members. Even if the association does not have a formal men- is an intersection, not a one-way street. The mentee can contribute toring program, participating in bar sections and events exposes the something valuable to the mentor: perspective, new contacts, or new lawyer to many potential mentors. even just the impetus to take part in professional and social activi- Whatever road leads to a potential mentor, the key to success is ties. Mentoring can be inclusive rather then exclusive, bringing in other the same as in any human relationship: communication and com- potential mentors and mentees. For example, a new lawyer mentors mitment. Establishing and reinforcing that commitment is not easy, a law student, who goes on to clerk for a federal judge and facilitates particularly between strangers paired by a matching program. If a connection between the lawyer and the judge. finding socially or professionally compatible human beings were as As time passes, the hierarchy inherent in the mentor-mentee rela- simple as drawing names from a hat, whole segments of the economy tionship can sometimes dissolve, as when a fifth-year attorney and a would collapse tomorrow. Neither prospective mentor nor mentee will new admittee mentee reach different career milestones, such as 10th likely know immediately if they have been paired with the right and 5th year, and 15th and 10th. In time, the mentee and the men- partner. tor may be peers litigating in the same courts or closing the same kinds Mentors, like mentees, come in many different varieties. Some pos- of deals (or referring business to each other). A Barrister may be think- sess specific knowledge of a practice area or how things work at a par- ing about finding a mentor today but may be well served by becom- ticular place of employment. The depth and character of the rela- ing a mentor as well. ■ tionship can vary. A person can have many mentors at different times of life, and each of these persons can affect either a narrow slice Gavin Hachiya Wasserman handles real estate and estate planning matters of a mentee’s career or can become an integral part of many aspects with Wasserman & Wasserman, LLP, in Torrance and is president of the of a mentee’s life. Barristers.

12 Los Angeles Lawyer June 2007 practice tips BY WAYNE G. NITTI

The Advantages of Using Electronic Service Providers

MAIL OR COURIER? When court-filed documents and discovery Procedure.9 Each time a document is electronically submitted to the require service on opposing counsel, law firms rarely consider other court, the Case Management/Electronic Case Files (CM/ECF) system options. Reliance on traditional paper-based service, however, is utilized by most district courts throughout the country generates a changing. Widespread access to the Internet at law firms and the adop- Notice of Electronic Filing (NEF)—an e-mail message containing a tion of rules authorizing—or even mandating—electronic transmis- hyperlink to the filed document. District court local rules or general sion of documents in various courts have led to a powerful alterna- orders typically provide that participation in the ECF system constitutes tive for attorneys: electronic service. consent to electronic service and that transmission of an NEF con- To facilitate this process, commercial online e-service providers stitutes service.10 (ESPs) have emerged. ESPs enable attorneys to serve documents elec- ESPs are part of a broader class of application service providers tronically and manage their litigation over the Internet. Working —third-party entities that manage and distribute software-based ser- with ESPs, law firms can reduce the costs of service, access case documents remotely, and coordinate teams of attorneys and staff. The resulting benefits can be dramatic. After a document is served through an ESP, it is automatically Many jurisdictions throughout the country expressly authorize e-service upon consent of the parties. Some courts have gone a step fur- added to an electronic repository that can be accessed remotely ther by requiring e-service for particular types of cases. To the extent e-service is required, it typically is implemented as part of a manda- by any member of a litigation team. Moreover, built-in databases tory e-filing program. California follows this general pattern. Although not required by any statewide rule, can be used to search, sort, group, and isolate case records. e-service has been approved for use in all state court proceedings. Pursuant to the mandate of Code of Civil Procedure Section 1010.6(b), the Judicial Council of vices and solutions to customers across a wide area network from a California has adopted Rules of Court expressly authorizing e-ser- central data center. When used during litigation, ESPs become either vice in cases in which the parties have consented or upon order of the required means or an authorized means of serving case documents the court.1 among parties. A party may consent to e-service in any California state court matter either by express agreement or by electronically filing any docu- Core Functions of an ESP ment with the court.2 Also, “[t]he court may, on the motion of any ESPs differ materially in design, document management, advanced fea- party or on its own motion, order all parties to serve and file all doc- tures, and access control. However, three core functions define ESPs: uments electronically in any class action, a consolidated action, a group a service interface, a notification mechanism, and an online case file. of actions, a coordinated action, or an action that is deemed complex The service interface is accessed through the ESP’s Web site and under rule 3.403, after finding that such an order would not cause is the tool by which attorneys upload case documents in electronic undue hardship or significant prejudice to any party.”3 form. Some ESPs require that documents be transmitted in PDF files At the local level, some courts have used this rule to mandate e- while others convert records to this universal format following trans- service in particular types of cases through a general order or a mission. standing order. In San Francisco Superior Court, for example, asbestos The notification mechanism is the vehicle for informing users matters are subject to mandatory e-service and e-filing.4 The same is that a document has been electronically served in a proceeding. ESPs true of construction defect litigation in San Diego Superior Court,5 typically accomplish this objective via e-mail. most complex litigation in Contra Costa County,6 and select types of The online case file is a repository of litigation documents indexed litigation in other counties. and organized within the ESP’s system. As documents are uploaded Once e-service is permitted in a California case, other rules relat- through the service interface, the ESP stores the records and compiles ing to e-service come into play. Pursuant to these rules, service is an electronic pleading and discovery file cabinet that can be accessed deemed complete at the time of transmission,7 and two court days are added to the response period for electronically served documents.8 Wayne G. Nitti is an attorney admitted in California and the founder of Case At the federal level, service of case documents by electronic means Anywhere LLC, a national online case management and e-service provider based is authorized by Rule 5(b)(2)(D) of the Federal Rules of Civil in Santa Monica.

Los Angeles Lawyer June 2007 13 anywhere via an Internet connection. realized in any size or type of litigation. ESP still has a place in federal practice, despite Some ESPs combine these core compo- Service of pleadings and discovery through widespread adoption of the CM/ECF system nents with other advanced functions that an ESP eliminates expenses associated with by district courts. In courts in which the include message boards, deposition libraries, traditional methods, including postage and CM/ECF system has been implemented, the and case calendars. When these premium courier fees, administrative time dedicated online case file is skeletal and does not sup- features are present, ESPs can function effec- to duplication and preparing service packets, port advanced searches. Also, many func- tively as a case management center that offers supply costs (paper, envelopes, labels, print tions offered by commercial ESP providers are not only a method for serving documents cartridges, and toner), and copier wear and absent. Further, discovery not filed with the but also a means for counsel to access and tear. In larger cases, the savings can be sub- court is not served and made available search case records efficiently, communicate stantial. Additional benefits of using an ESP through the system. The value added by an with other case participants, track impor- include eliminating service errors, avoiding ESP, particularly in those cases coordinated tant litigation dates, and store and retrieve service disputes, and alleviating the time under multidistrict litigation (MDL) and deposition transcripts. crunch associated with bulk mailing. What larger federal proceedings, merits considera- Using an ESP only requires an Internet previously may have been an expensive and tion of this collaborative tool notwithstand- connection, an e-mail address, and the abil- time-consuming exercise can be reduced to ing certain unavoidable redundancies present ity to open a PDF document. A document completing a few fields on a service inter- in using an ESP and the CM/ECF system. scanner to convert paper records to elec- face and clicking a mouse. These benefits, Common issues raised in connection with tronic files is also recommended, although it however, are only part of the story. the use of ESPs involve whether paper doc- is not required because ESPs or third-party Many lawyers believe that online access to uments can be served electronically, whether vendors can provide scanning services. case documents is the biggest draw to using an online case file is secure, and whether an Why should the use of an ESP be consid- an ESP. An electronic pleading and discovery ESP Web site can be accessed without inter- ered when electronic service can be accom- file cabinet ensures that an attorney’s case ruption. These questions reflect valid con- plished by e-mail attachment? The answer is documents are available anywhere, anytime cerns that ESPs can address, given that their simple. The use of ESPs allows attorneys to through the Internet—at home, on the road, purpose is to make service and document avoid problems typically associated with e- during a deposition, or at a client meeting. access easy and secure. mail service. Moreover, ESPs do much more The online file renders paper pleading clips Documents in hard copy form, such as than electronically serve documents. and the distribution of documents within a exhibits to motions, can be converted to elec- The problems that arise in connection firm potentially unnecessary, thereby reduc- tronic files through scanning capabilities with serving documents by e-mail include: ing office clutter and storage requirements. already present at most law firms. If a scan- • Delay or nondelivery of e-mail when large These benefits are magnified when teams ner is not available, ESPs or third-party ven- attachments are appended. ESPs typically of attorneys, paralegals, and professional dors can provide scanning services. include document links—not attachments— staff are working on a case, particularly when Access to court records over the Internet in e-mail notifications. matters are staffed across offices and redun- is commonplace. Many state courts, includ- • Transmission of computer viruses. ESPs dant paper files otherwise would be required. ing the Los Angeles Superior Court, period- usually have built-in virus protection. For traveling attorneys, documents served in ically scan case filings and make them avail- • Disputes over whether service took place. their absence can be retrieved without delay. able for sale over the Web. For federal cases, ESPs can provide third-party verification. For parties to the litigation and a firm’s users can log on to the Pacer system and • Inadvertently omitting or incorrectly typ- experts and consultants, access to all or part download district, appellate, and bankruptcy ing e-mail addresses. ESPs generally do not of the online case file may be provided by court records from across the country.12 As require manual entry of e-mail addresses in ESPs. When Internet connectivity will not be court-filed documents are generally a matter their service interface. available, records can be printed out or of public record, making these documents • File attachments that cannot be opened. exported to a desktop or laptop computer in available through an ESP affects only the ESPs store documents in universal PDF format. advance. ease of retrieval, not the scope of access. Although service by e-mail attachment The overall value to attorneys is enhanced Discovery documents, which are not pub- will transmit a document, little else is accom- by additional features present in some ESPs. licly available unless included in a court fil- plished. Once received, an e-mail attachment Counsel can efficiently use message boards to ing, are a different matter. ESPs generally must be printed out and organized with other communicate administrative information, store discovery documents, as well as other case documents, distributed among firm attor- coordinate schedules, identify outstanding case records, by using one of two secure neys and professional staff working on the issues, and send reminders. Deposition methods. Some ESPs limit access to a partic- matter, and maintained as part of an active libraries are another value-added service that ular online case file to individuals involved in paper litigation file. In comparison, after a can be used by firms to store transcripts for the case, such as the judge, court clerks, the document is served through an ESP, it is auto- remote access by their litigation team. parties, attorneys of record, and their agents. matically added to an electronic repository Moreover, attorneys are not the only mem- Within this group, some ESPs permit docu- that can be accessed remotely by any members of the legal profession benefiting from ment access to be further restricted. Other ber of a litigation team. Moreover, built-in ESPs. Judges, particularly those presiding ESPs make each case file generally available databases can be used to search, sort, group, over complex litigation, have effectively used to all users of their system but allow an attor- and isolate case records. These features, along ESPs to manage the paper crush, access case ney, when serving a document, to restrict with other attributes of more robust ESPs, fur- records away from the courtroom, circulate access only to individuals being served. ESPs ther distinguish ESPs from basic e-mail. orders and tentative rulings, and communi- also use passwords, encryption technology, cate efficiently with attorneys on case matters firewalls, and other security measures to pro- Range of Benefits through message board postings.11 In many tect online case files. The benefits of using an ESP are measured in proceedings, ESP services are provided free of The possibility of an ESP’s Web site terms of cost savings, convenience, and coor- charge to the court. becoming unavailable is an alarming prospect dination. These benefits potentially can be Given the range of potential benefits, an to most attorneys. If the Web site goes down,

14 Los Angeles Lawyer June 2007 attorneys cannot serve or access case records, consenting parties serve one another through system dependent on selections made by the at least temporarily. Attorneys concerned the ESP. Arrangements can be made to upload serving party? If the former, is a lawyer or with this possibility should request informa- documents served by nonparticipants into trained legal professional employed by the tion about an ESP’s server redundancies, the online system to maintain a complete ESP to correctly categorize documents in the method of data backup, and history, if any, electronic case file. online case file? If the latter, how straight- of unscheduled downtime. Because the busi- forward is the user’s selection decision, and ness of an ESP is to provide online service and Selecting an ESP what safeguards exist (if any) to correct mis- document retrieval capabilities, appropriate Unless a court has entered into a contract with takes and oversights from becoming a per- safeguards should be in place to ensure unin- an ESP, selecting a commercial provider is gen- manent part of the online record? terrupted access. Moreover, by periodically erally left in the hands of counsel to determine • Document grouping: Are related docu- downloading and storing case documents on on a case-by-case basis. ESPs differ signifi- ments—such as all documents related to a a local computer or external storage device, cantly in terms of design, document man- motion or discovery request and responses— attorneys can maintain their own backup agement, advanced features, and access con- grouped together in the online system for case file in case of an emergency. trol. Although ESPs have been in existence for easy retrieval? a number of years, new entrants are attract- • Search fields and filters: Can the case file be Introducing an ESP into a Case ing the attention of judges and attorneys with searched by party, firm, document type, date When use of electronic service is not manda- their streamlined interfaces and suite of range, title, page length, document size, and tory, the manner and timetable in which an advanced functionality. In this developing other variables? Are filters available for com- ESP is introduced into a proceeding varies on marketplace, an ESP used by an attorney in bination searches? a case-by-case basis. Any civil proceeding one case may no longer be the best option for • Key words: Does the ESP support key word currently being handled by an attorney is a the attorney’s next proceeding. searches? If so, are searches limited to docu- potential candidate for an ESP, whose services When evaluating an ESP, attorneys should ment titles or can all or part of the online case can be valuable at any stage of a litigation. consider a variety of factors. For design, file be queried for records containing speci- Case management and status conferences attorneys should investigate: fied internal text? are logical forums for considering an ESP • Structure: Does the ESP display all of the • Party identification: Are document listings during the early stages of the litigation cases that it hosts—whether or not a user is color-coded or otherwise distinguished by process. All counsel generally are present, related to a particular proceeding? Or does it party type? and threshold procedural issues are being employ a targeted approach, linking pass- • Encryption: Is encryption technology used discussed. Either the court or counsel may words to cases and displaying only matters in to secure the transmission of documents to raise the matter for discussion. Alternatively, which the attorney is involved? and from the ESP? an attorney may broach the prospect of using • Ease of use: Is the application interface • Offline access: Can case documents be an ESP informally with other counsel or coor- intuitive, or is it cluttered and confusing? exported to a desktop or laptop for offline dinate a demonstration of a provider’s capa- Are cases and records easy to find? How access? If so, can multiple or all case records bilities. Use of an ESP may also be raised by many screens, drop-down menus, and fields be exported in a single transmission or must motion in certain contexts. must be navigated to complete basic tasks records be downloaded individually? Introducing the subject of an ESP also such as locating and serving documents? • Sale of case documents: Does the ESP take can occur later in the course of litigation. • Complex cases: In consolidated, coordi- the documents served through its system and Events that may trigger a discussion about nated, related, and other grouped matters, can make them available for sale to third parties? using an ESP in a case include the coordina- individual proceedings be isolated from other For advanced features, attorneys should tion of actions or the determination that cases? research whether the ESP’s offerings include: other related actions have been filed, the • Supported browsers: Is the ESP system • Message boards: Does the ESP have a case- addition of parties to a litigation, and an designed to fully support Internet Explorer as specific message board? If so, can messages be assessment that the document activity in the well as other PC and Macintosh browsers? limited to counsel only or will every posting case is greater than originally anticipated. • Online help: Are help guides or pop-up also be made available automatically to the Often, the need for an ESP is first recog- instructions readily available? judge? nized by counsel, who stipulate to the use of For document management, attorneys • Calendars: Does the ESP have one or more an ESP and seek issuance of a confirming should question an ESP regarding: calendars? If a calendar function exists, can court order. This order routinely designates • Case files: Are documents organized in it be exported to Microsoft Outlook or other the ESP as the exclusive means of serving table fields, folders and subfolders, or in some calendaring systems? Can reminder e-mail documents in the litigation and covers vari- other type of structure? Does the ESP orga- of calendar events be set up by individual ous procedural details. The attorneys then nize documents in more than one way? users? provide basic contact information to the ESP, • Customization: Is the online case file tailored • Deposition libraries: Does the ESP have a which establishes an online case file and issues to the jurisdiction, or is it one-size-fits-all? Can deposition library? If so, can access be limited user names and passwords to court and coun- the case file be customized to meet the requests to particular users? sel. ESPs also can be introduced into a pro- of counsel in a particular proceeding? For access control, attorneys should ceeding without judicial intervention. • Timing: Is the document immediately avail- inquire whether the ESP is structured to Agreement among attorneys of record is all able to counsel upon transmission through the address: that is typically required. service interface, or is access delayed until the • Document restriction: Can document ser- Notwithstanding the benefits of ESPs, document is manually posted by the ESP? If vice and access be restricted to certain organ- some case attorneys may refuse to embrace real-time access is not available, does the izations or individuals? electronic service. This does not have to derail ESP guarantee posting within a specified • Roles: Can a user role be limited? For the possibility of introducing an ESP into a lit- period? example, can an expert be provided access to igation. The nonstipulating parties can serve • Categorization: Does the ESP categorize specific deposition transcripts while blocking and be served by traditional means while the documents? Or is categorization in the online access to the rest of the case file?

Los Angeles Lawyer June 2007 15 • Parties and third-party agents: Will the There is no substitute for experience. ESP provide access to parties as well as their consultants and experts upon request? If so, ■ Over 1,200 Successful Mediations is the online case file easy to locate? ■ 13 years as a full-time mediator • Administrative changes: Does the ESP require a firm designee to make administra- ■ 92% of Cases Resolved tive changes or may each user request a ■ Director, Pepperdine Law School’s change? “Mediating the Litigated Case” program Some of this information may be available on an ESP’s Web site or through a discussion LEE JAY BERMAN, Mediator with an ESP representative. Nevertheless, the best method of evaluating a commercial 213.383.0438 www.LeeJayBerman.com provider’s capabilities is to request a demonstration. The small amount of time devoted to researching ESP alternatives before making a decision will likely pay dividends at every login. Widespread adoption of electronic service in federal court proceedings and a patch- work of rules mandating or permitting e-service in state courts have modified the flow of paper documents among counsel in litigation. ESPs take these changes to the next level. Much more than vehicles for serving documents, ESPs can function effectively as case management centers. For courts and counsel, managing litigation through the Internet has never made more sense. ■

1 CODE CIV. PROC. §1010.6(b) provides that “[b]y January 1, 2003, the Judicial Council shall adopt uniform rules for the electronic ﬁling and service of documents in the trial courts of the state, which shall include statewide policies on vendor contracts, privacy, and access to public records.” The “uniform rules” adopted by the Judicial Council for this purpose are found in Rules 2.250 through 2.260 of the California Rules of Court. 2 CAL. R. OF CT. 2.260(a). Additional authority for electronic service by consent is found in local rules. See, e.g., L.A. SUP. CT. R. 18.0(g). 3 CAL. R. OF CT. 2.253(a). 4 San Francisco Superior Court Amended General Order No. 158, rev’d effective Nov. 1, 2006 (Case No. 828684). 5 Construction defect cases in San Diego Superior Court are designated as Electronic Filing (EFile) cases and generally are governed by a form Electronic Filing and Service Order. 6 Contra Costa Superior Court Electronic Case File Standing Order, as amended effective Dec. 15, 2006, at §XII. 7 CAL. R. OF CT. 2.260(b)(1). 8 CAL. R. OF CT. 2.260(b)(2). The two-day extension does not apply to 1) a notice of intent to move for a new trial, 2) a notice of intent to move to vacate the judgment under Code of Civil Procedure §663a, or 3) a notice of appeal. See CAL. R. OF CT. 2.260(b)(3). 9 FED. R. CIV. P. 5(b)(2)(D) (“Service under Rule 5(a) is made by: Delivering a copy by any other means, including electronic means, consented to in writing by the person being served….”). 10 See, e.g., United States District Court, Central District of California General Order No. 06-07, at §§II(G), III(C). 11 Communication between court and counsel on a message board does not raise ex parte concerns if all case attorneys receive the text of the postings. 12 http://pacer.psc.uscourts.gov.

16 Los Angeles Lawyer June 2007 practice tips BY DOMINIQUE R. SHELTON

How Licensing Issues Are Affecting Recent Media Developments

“THE ARTS ARE THE SALT OF THE EARTH; as salt relates to food, the arts relate to technology.” 1 Johann Wolfgang von Goethe’s words reveal a centuries-old recognition of the symbiosis between the arts and technology. Today, mp3 players, streaming video, video on demand, and other new products and services have revolutionized the way that consumers access and experience entertainment. These new media have also renewed the tension between technical innovators and the creators of artistic content. Consider that the original Star Trek television series was first released in 1966 on a single platform—television. In 2007, one of the original Star Trek episodes, “Where No Man Has Gone Before,” is featured on iTunes for $1.99 and can be viewed on multiple platforms ranging from computers to iPods.2 Episodes of numerous other programs first broadcast on network television are now available on cell phones,3 as is other general programming (e.g., sports, entertainment, news, weather, and gambling).4 For example, Webcasts of sporting events have become prevalent.5 And consumers are increasingly viewing feature films on platforms other than traditional movie the- ater screens, such as DVDs, cable on demand services, and subscription film distribution channels. Consumers can also now download motion pictures to laptop computers via iTunes or access them through online streaming video. In addition to passive observation, consumers are now able to manipulate characters and plot scenarios to create their own entertainment content. For example, in the fall of 2006, video game maker THQ released The Sopranos: Road to Respect, a video game based upon HBO’s series that allows consumers to “play” certain scenes from the perspective of various series characters.6 Motion duced SB 2644, the Platform Equality and Remedies for Rights pictures are likewise being transformed into immersive-experience Holders in Music Act of 2006 (Perform Act), which focuses on video games. For example, Midway Games Inc., an interactive enter- licensing and content protection issues related to the delivery of dig- tainment industry publisher, and developer Tigon Studios, founded ital music over the Internet, satellite radio, and cable television. One by Vin Diesel, announced a collaboration with Viacom’s MTV Films, month later, in May, copyright owners filed two major lawsuits Paramount Pictures, and MTV Games to develop a game tied to a (Atlantic Recording Corporation v. XM Satellite Radio, Inc. and forthcoming film, The Wheelman, starring Diesel.7 In a role reversal Twentieth Century Fox Film Corporation v. Cablevision Systems reflecting the popularity of video games, television shows inspired by Corporation) involving the interpretation of intellectual property video games are now in development.8 The platforms on which licenses.10 To date, however, only a handful of courts have issued deci- video games can be played have expanded from manufacturer-based sions interpreting the scope of certain licenses in this context.11 products (e.g., Xbox, Sony Play Station, PC Games, Nintendo Wii, Game Boy, etc.) to cable services, the Internet, and cell phones.9 Video Pipeline and Tasini This expansion has heightened awareness of a number of licens- Under federal copyright law, copyright owners enjoy the exclusive right ing issues. Does the right to distribute entertainment content through to 1) make copies of their works, 2) prepare derivative works, 3) dis- one channel include the right to distribute that content through a later- tribute their works, 4) perform their works, and 5) display their developed channel with a different underlying technology? Must a protected material.12 Copyright owners can transfer one or all of these licensing agreement explicitly grant such a right? When is a new plat- rights via a license. Historically, judicial interpretation of licensing form sufficiently similar to a preexisting platform so that the right to agreements has been primarily a question of contract law. However, distribute on the latter includes the former? Are there any limits on interpreting the scope of the rights transferred has been complicated a grant of the right to distribute content on all channels, including by the advent of new media. For example, a Webcaster or satellite radio those that have yet to be invented? Legislators and the courts are grappling with these questions. Dominique R. Shelton is litigation counsel at Kaye Scholer and a member of

RICHARD EWING Senators Dianne Feinstein, Lindsey Graham, and Bill Frist intro- the ﬁrm’s Entertainment & Media Practice Group.

Los Angeles Lawyer June 2007 17 company may or may not have the statutory Pipeline a limited right to reproduce and publisher had not established a likelihood of right to operate an mp3 service that permits “perform” the trailers.18 success on the merits and denied the pub- subscribers to download recordings. If a cable Nine years later, in 1997, Video Pipeline lisher’s request for a preliminary injunction. company retransmits network broadcasts as notified Buena Vista that it intended to make The Second Circuit found no abuse of dis- part of a statutory license, that license may or the trailers available online. Video Pipeline’s cretion by the district court.22 Similarly, in may not also permit the cable operator to online service became active in 1999. By that New York Times Company v. Tasini,23 the develop a digital recording service that con- time, Video Pipeline had converted Buena U.S. Supreme Court narrowly construed a verts programs to digital format for delayed Vista’s videotape trailers “into digital form, license for the reproduction of news articles. retransmission to cable subscribers on and made them available for the public on its In that case, freelance authors contributed demand. websites, and on the websites of subscribers” articles to newspaper and periodical pub- At times when relatively few distribution of Video Pipeline’s online service. Buena Vista lishers. The court found that the publishers channels existed, courts held that licensees never gave express authorization for the had the right to reproduce and distribute the could distribute content in any media that rea- online use of its trailers; however, the record articles “as part of [a] collective work,” but sonably fell within the medium specified in the reflected that Buena Vista was fully aware of that they had exceeded the scope of their license unless the parties could show a con- Video Pipeline’s plans and conduct.19 copyright by making the articles available trary intent.13 For example, most courts have In 2000, Buena Vista told Video Pipeline online via Lexis without the authors’ con- broadly interpreted the phrase “motion pic- that it was not authorized to use Buena Vista’s sent.24 On Lexis, for example, New York ture” to include television broadcasts and trailers online and terminated the licensing Times articles were searchable by author, home video distribution.14 Also, in the early agreement. Video Pipeline sought declara- title, and date, among other things.25 The 1980s, several courts concluded that when tory relief. Buena Vista counterclaimed for Supreme Court held that making the articles parties expressly contracted to permit distri- copyright infringement, alleging that Video available online and searchable constituted bution of film content “by any means or Pipeline had exceeded the scope of its license copyright infringement, as the New York methods now or hereafter known,” this by placing the trailers online. The New Jersey Times only had a copyright in the “collective included distribution via videocassette (a district court agreed with Buena Vista. It held work as a whole” and not the individual technology developed after the dates of the that digitized copies of Buena Vista’s trailers articles.26 licensing agreements).15 Similarly, when a were derivative works under the Copyright Video Pipeline, Rossetta Books, and Tasini licensor is aware of emerging technologies that Act. Because Buena Vista explicitly told Video all suggest that a licensee’s failure to expressly reasonably fall within the meaning of a con- Pipeline in 2000 that it was not authorized to obtain rights to use new media can expose the tract term referencing a particular medium make digitized copies of Buena Vista’s trail- company to copyright infringement claims and the licensor does not expressly exclude ers, Video Pipeline’s continued online use of and all the adverse consequences such claims those new uses, courts have often held that the the digitized trailers constituted copyright entail.27 license encompasses those new technolo- infringement.20 gies.16 However, these prior cases do not The court also found that Video Pipeline’s Cablevision and XM Radio address the question of whether an existing conduct—streaming video over the Internet— Two pending cases in the U.S. District Court license can be read to include new technolo- constituted a public performance in viola- for the Southern District of New York high- gies that are neither invented at the time of tion of Buena Vista’s exclusive rights under the light the current licensing debate: Twentieth the license nor addressed in the license but Copyright Act. The court rejected any claim Century Fox Film Corporation v. Cablevision that are, arguably, functionally indistin- of implied license based upon the parties’ Systems Corporation28 and Atlantic guishable from the uses expressly permitted course of conduct. Notwithstanding the Recording Corporation v. XM Satellite by the license. expense that Video Pipeline incurred in con- Radio, Inc.29 Although these two cases are Relatively few cases address whether a verting the trailers for online use, and despite pending, they are noteworthy for their poten- party exceeds the scope of an existing license Buena Vista’s silence between 1997 and 1999 tial effect on licensing law in the new media by changing the platform or the technology while the trailers were being converted to context and as illustrations of the ways in used to distribute the content that is covered digital format, there is no discussion of Video which litigants frame these issues for the by the license. In Video Pipeline, Inc. v. Buena Pipeline’s detrimental reliance on Buena courts. Vista Home Entertainment, Inc.,17 a 2003 Vista’s failure to object to the digital online In the Cablevision action, the plaintiffs, a decision, a New Jersey district court held conversion process. The court’s decision in group of television and film studios, allege one that a licensee exceeded the scope of an exist- Video Pipeline, which was affirmed on appeal, cause of action—copyright infringement— ing license that permitted the exhibition and thus reflects some judicial reticence to inter- based upon Cablevision’s proposed service physical copying of video trailers in stores, pret licensing agreements broadly to include called remote storage digital video recording when the licensee made the same clips avail- new technologies that were not expressly or RS-DVR. In the complaint, the studios able online. Video Pipeline, the licensee, was contemplated by the parties or mentioned in allege that RS-DVR is “an unauthorized in the business of obtaining trailers and pro- the licensing agreement. video-on-demand service that would under- motional materials from various movie stu- A few decisions involving the publishing mine the video-on-demand, download, mobile dios. It organized these clips into video com- industry also evidence a judicial preference for device, and other novel and traditional ser- pilations and sold them to home video narrow construction of licensing agreements vices that plaintiffs and other copyright own- wholesalers and retailers for in-store cus- insofar as they relate to new technologies. In ers have developed and are actively licensing tomer viewing to promote home video rentals Random House, Inc. v. Rosetta Books LLC,21 into the marketplace.”30 The crux of the stu- and sales. for example, a publisher argued that its right dios’ claim is that Cablevision does not have Then, in 1988, Video Pipeline entered to reproduce text “in book form” included the a license to permit delayed transmission and into a licensing agreement with Buena Vista right to reproduce the books online, such digitized copying of “linear programming” on Home Entertainment to include Buena Vista’s that the author could not separately license cable.31 The studios argue that if Cablevision trailers in these compilations. In the licensing the online rights to a so-called e-book pub- wants to offer customers the opportunity to agreement, Buena Vista conferred on Video lisher. The district court concluded that the record programming at will, it must negoti-

18 Los Angeles Lawyer June 2007 ate video-on-demand licenses to do so. only includes technologies expressly identified tions: “XM subscribers have no ability to Cablevision counterclaimed for declara- in the license and not new media that become choose what XM plays or, therefore, what tory relief, asserting that its RS-DVR product available after the date of the license. Even songs they can record.” At issue is whether is merely a “time-shifting” device protected though Video Pipeline could also be read to XM broadcasters will have to pay more for under the U.S. Supreme Court’s Sony stand for this proposition, the studios used licensing fees in order to incorporate the new Corporation of America v. Universal City Video Pipeline to support the narrower digital recording technology that permits cus- Studios, Inc.32 Cablevision also alleges that its proposition that Cablevision’s RS-DVR ser- tomers to disaggregate playlists for a fee.39 RS-DVR product is no different from the vice would require Cablevision to create “two “set top” digital video recording boxes that streams” of transmissions, namely, a simul- The Perform Act it currently installs in customers’ homes and taneous broadcast stream for which If recent legislative initiatives are any indi- to which the studios have never objected. Cablevision presently pays licensing fees and cation, licenses will be strictly construed to The only difference between RS-DVR and an unauthorized on-demand stream for RS- encourage negotiation of separate licenses the set top DVR boxes, Cablevision argues, DVR transmissions for which Cablevision for new media. The Perform Act clearly tar- is the location of the stored subscriber pro- apparently contemplates no licensing fees.36 gets technology such as XM’s Inno and makes grams. In the case of the set top boxes, the In contrast, Cablevision’s summary judg- plain that companies like XM are not per- recordings are saved within the digital video ment brief downplays the effect of new tech- mitted to market digital recording devices. recording box located in the customer’s home. nology on licensing rights. First, Cablevision Feinstein has indicated that the Perform Act In the case of the proposed RS-DVR product, argued that it is merely providing the does two things: the programs are saved on a remote server “machinery” for the subscribers to use, sim- 1. It creates rate parity for all service operated by Cablevision. Both devices allow ilar to a copying machine. Second, Cable- providers under the compulsory the same number of programs to be saved. vision argued that the new technology does license.…This means that Internet, The plaintiffs moved for summary judg- not actually expand what it is indisputably cable, and satellite will all be subject to ment, with heavy reliance on the proposi- licensed to do, since subscribers already have the same rate standards; and tion that new technologies transform the the ability to view simultaneous broadcasts in 2. It requires that Internet, cable, and scope of intellectual property rights. Specifi- a delayed, time-shifting manner by using the satellite providers employ technology cally, the studios argued that Cablevision’s RS- set top digital video recording boxes that are that will prevent downloading, manip- DVR service would directly infringe upon installed in homes. In addition, Cablevision ulation and sorting of the music that the studios’ exclusive rights to reproduce and pointed out that the technology of RS-DVR they play to prevent individuals from perform their copyrighted material, in part permits only the private viewing of the con- creating their own personalized play- because the technology used by Cablevision tent by the subscriber at home, because the lists. would create unauthorized “buffer” (or tem- encryption process ties a subscriber’s request The bill has been referred to the Committee porary) copies that would reside on Cable- for a program to that subscriber’s personal set on the Judiciary.40 If the Perform Act becomes vision’s remote server. The studios likewise top device. Thus, Cablevision argued that law, it will resolve many future questions argued that Cablevision’s creation of an intri- there is no public performance by either regarding the digital distribution of music cate remote server system for the sole purpose Cablevision or the subscriber in the ultimate but would leave open questions pertaining to of making multiple copies of the same pro- privacy of the subscriber’s home.37 cable and other media platforms. New leg- gram for numerous subscribers is the hallmark In a decision dated March 22, 2007, the islative initiatives will undoubtedly continue of copyright infringement: U.S. District Court for the Southern District to emerge to address the multiple platforms Cablevision would utilize an array of of New York adopted the arguments available for the distribution of entertain- more than a dozen different computer advanced by the studios and dismissed ment content. servers, switches, routers, and other Cablevision’s counterclaim with prejudice.38 In this rapidly shifting landscape, lawyers devices. All that equipment would be A similar case, Atlantic Recording can counsel clients to consider the licensing owned, maintained and programmed Corporation v. XM Satellite Radio, Inc., filed issues that follow at all stages of new media by Cablevision. All that equipment, 10 days before Cablevision, addresses whether development and launch. except the set top box, would be storing music obtained through the XM satel- Explicitly address the technology/new located at Cablevision’s facilities. The lite radio service in a portable device consti- media issues in the license. If a client desires sole purpose of virtually all that equip- tutes infringement. The XM case involves the media to be restricted, carefully describe ment would be to provide the Service.33 the recording industry’s allegations that XM’s the medium in which the content may be Relying on the Supreme Court’s decision so-called Inno device (marketed as an XM- distributed and explicitly exclude other in Tasini, the plaintiff studios argued that “a plus-mp3 service) exceeds the scope of the known media as well as unknown future license confers only the copyright rights specif- statutory license for the digital transmission technologies. If the client desires to have the ically granted and no others,” and therefore of sound recordings and actually transforms broadest rights possible, negotiate a license the court should find that new technologies— XM’s service into a download distribution ser- that includes “any means or methods now or like RS-DVR—require new licenses.34 Citing vice similar to iTunes. The plaintiffs assert hereafter known” or comparable language. Video Pipeline, the studios further argue that direct and indirect copyright infringement Avoid assuming liability for technological just as streaming programming over the theories. Although the XM subscribers them- functions beyond the client’s control. Lawyers Internet constituted an unauthorized public selves are not sued, the plaintiffs also allege should counsel clients to avoid assuming performance in Video Pipeline, the Southern that XM is contributing to copyright infringe- responsibility for tasks that are dictated by the District of New York should conclude that ment by its subscribers. As in Cablevision, technology at hand. By way of example, a dig- Cablevision’s proposal to “stream” pro- XM characterizes its Inno product as a time- ital cable channel that receives programming gramming to subscribers is an unauthorized shifting device protected by the doctrine of fair content from third-party producers should not use.35 Interestingly, the studios relied on use. XM likens the Inno device to consumers’ guarantee removal or refresh dates for that Tasini—and not on Video Pipeline—for the historic practice of making cassette recordings content if those functions are ultimately out- broader proposition that a negotiated license of music played on their favorite radio sta- side the control of the cable channel.

Los Angeles Lawyer June 2007 19 Consider requiring representations and TRUST DEED FORECLOSURES warranties that business partners are com- “Industry Specialists For Over 18 Years” plying with the law. In the Video Pipeline case, several other online distributors of home t Witkin & Eisinger we specialize in the Non-Judicial video products had links to Video Pipeline’s A Foreclosure of obligations secured by real property or real and personal property (mixed collateral). Web site on their own home pages. Although When your client needs a foreclosure done profession- none of these distributors were sued for direct ally and at the lowest possible cost, please call us at: or indirect copyright infringement, they 1-800-950-6522 arguably had exposure.41 To limit potential We have always offered free advice to all attorneys. future liability and to have a better understanding of a business partner’s intellectual WITKIN property management procedures, it is advis- EISINGER, LLC able to include in licensing agreements rep- & ◆ resentations that the licensor has fully com- RICHARD G. WITKIN, ESQ. CAROLE EISINGER plied with copyright laws and has fully cleared the rights and title to content provided to the licensee. An indemnity provision for any liability arising from the licensor’s failure to comply with the law would also be advan- tageous from the licensee’s perspective. When representing a licensor, consider language that would specify that new technologies and platforms will change the substantive rights at issue in the license. A licensor should consider including express language in a licensing agreement making plain that new technologies or platforms (not yet in existence at the time of the licensing agreement) would be considered outside the scope of the agreement. Agree to limit the legal impact of technological advances and new platforms if your client is a licensee that would like to have broad rights to expand the use of content to AN ELECTRONIC PUBLICATION AVAILABLE new media. A licensee that seeks as much TO LAWYERS ON THE INTERNET flexibility as possible in using content might push for language in the licensing agreement that makes clear that technological advances and new media are envisioned by the agree- ARBITRATION and ment. If possible, the licensee will want express permission to exploit the content using new media or technological advances ADR PRACTICE that are not identified or in existence at the time of the licensing agreement. Comprehensive summaries & review of U.S. Supreme Defining principles that cut across tech- Court, Circuit Court of Appeals and California Cases nologies are needed to establish guidelines for Includes California non-published cases copyright owners and prospective licensees in the area of new media. There are some indi- Federal and California cases cross referenced cations that Congress may legislate in this arena. Until new rules are developed, however, Commentaries, Notes and Practice Guides lawyers will continue to grapple with finding Download Entire Text • Print Selected Text the right balance between promoting tech- Links Table of Contents to Text • Revised Weekly nological advances while protecting creative content. ■ • ARBITRATION • MEDIATION 1 2 JOHANN WOLFGANG VON GOETHE, WILHELM • COURT REFEREES • TEMPORARY JUDGES MEISTER’S TRAVELS, ch. 7 (1829). 2 See http://www.apple.com/itunes/store/tvshows.html No pocket parts. No supplements. (last visited Jan. 6, 2007). In 2005, NBC Universal and Apple announced a partnership to offer television Judge Waddington (Ret.) shows on iTunes. See NBC Universal & Apple Offer www.ArbitrationADR.com New Primetime, Cable, Late-Night & Classic TV Shows on the iTunes Music Store, available at To receive the text, no paper is required. Subscibers pay an annual subscription fee enabling http://www.apple.com/pr/library/2005/dec/06nbc.html them to review the entire text on their computer at home or office any time on the website. (last visited May 18, 2006). MGM has made episodes of Stargate available on iTunes.

20 Los Angeles Lawyer June 2007 3 In 2005, The Walt Disney Company and Warner Bros. announced the development of “mobi-toons,” episodes of children’s programming, like Sesame Street, available for download on cell phones. See Doreen Carvajal, A Way to Calm Fussy Baby: “Sesame Street” by Cellphone, available at http://www.nytimes.com. See also Laura M. Holson, Verizon to Announce Plan for TV Shows on Cellphones, N.Y. TIMES, Jan. 6, 2007. Beginning in 2004, books were available for download on phones. See David Harper, Creative Commons Licensed Library Launches—Delivering Mobile Editions of Books to Phones, Wireless Ink Blog, at http://winksite.com (last visited June 12, 2006). In addition, digital radio has now been proposed for mobile phones. 4 In 2006, British Sky Broadcasting and Symbian Limited announced a partnership to provide a range of content, including sports, entertainment, news, weather, and betting on cell phones. See BSkyB Selects Symbian OS to Develop Sky by Mobile, at www.symbian.com (Feb. 14, 2006). Is this your client.... If so, call me. 5 See, e.g., Nancy Armour, Thinking in and outside the In the entertainment or Slingbox, at http://www.insidesocal.com (last visited related industry? Mar. 15, 2007) (“Sports that have been largely shut out I have been arbitrating and of the mainstream media are using Webcasts to stake Prefers a solution to a out their spot. The NHL even is putting full-length dispute rather than mediating entertainment games on delay on Google Video.”). Webcasts of less- litigation? industry and other disputes viewed sports are also becoming more prevalent. See, for over 20 years and Is willing to mediate the e.g., IceNetwork.com. dispute but wants a have been in the business 6 Anne Becker, Cable and Broadcast Take Aim at a $16 mediator who knows the for much longer than that! Billion Business, Broadcasting and Cable, at industry and understands http://www.broadcastingcable.com (June 12, 2006) his/her positions? Dixon Q. Dern [hereinafter Cable and Broadcast Take Aim]. The 310.557.2244 Sopranos is not the only television series to enter the www.dixlaw.com gaming arena. Fox’s 24 series also was transformed into a video game. Ubisoft and Touchstone Television are Experience + Knowledge = "Dern" good results! working to adapt the television series Lost to a video game. 7 Id. 8 Gameplay HD (a Dish Network channel) is working with video game suppliers to secure content rights for a machinima series in which animators will use video game content and technology to create digital episodes of a television series. Machinima is a production technique and film genre in which low-end 3D technology often used for video games is used for film or television. 9 Cablevision launched the industry’s first interactive JACK TRIMARCO & ASSOCIATES subscription games service, iO Games, in 2004, and has announced plans to expand its service in partnership POLYGRAPH/INVESTIGATIONS, INC. with game provider PixelPlay. See Cable and Broadcast Take Aim, supra note 6. In-Fusio and Microsoft have partnered to produce mobile content based on popular Xbox titles. Mike Magee, In-Fusio to Produce Halo Content for Mobile Phones, at http://www .theinquirer.net (Sept. 27, 2005) (last visited June 16, 9454 Wilshire Blvd. 2006). 10 See Atlantic Recording Corp. v. XM Satellite Radio, Sixth Floor Inc., Case No. 06-CV-3733 (S.D. N.Y. filed May 16, 2006), and Twentieth Century Fox Film Corp. v. Beverly Hills, CA 90212 Cablevision Sys. Corp., Case No. 06-CV-3990 (S.D. N.Y. filed May 24, 2006). (310) 247-2637 TEL 11 The general rules of contract interpretation ordinarily apply to the interpretation of licenses. See, e.g., Cohen (310) 306-2720 FAX v. Paramount Pictures Corp., 845 F. 2d 851, 854 (9th Cir. 1988) (declining to interpret a license for exhibi- Jack Trimarco - President tion “by means of television” to include home video Former Polygraph Unit Chief because home video technology did not exist at the time Los Angeles F.B.I. (1990-1998) of contracting). email: [email protected] # 12 17 U.S.C. §106. CA. P.I. 20970 www.jacktrimarco.com 13 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §10.10[B] (2006). Member Society of Former Special Agents Former Polygraph Inspection Team Leader 14 See, e.g., Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 Federal Bureau of Investigation Office of Counter Intelligence F. 2d 150, 155 (2d Cir. 1968). U.S. Department of Energy 15 See, e.g., Platinum Record Co., Inc. v. Lucasfilm, Ltd., 566 F. Supp. 226 (D. N.J. 1983). This case concerned a 1973 licensing agreement that expressly conferred the

Los Angeles Lawyer June 2007 21 right to “exhibit, distribute, exploit, market and per- 22 Id. at 491-92. owners); 17 U.S.C. §111 (statutory licenses). form said motion picture, its air, screen and television 23 New York Times Co. v. Tasini, 533 U.S. 483 (2001). 34 See Memorandum in Support of Motion for trailers, perpetually throughout the world by any 24 Id. at 489. Summary Judgment, supra note 31, at 7. means or methods now or hereafter known.” Id. at 227 25 Id. at 490. 35 See Plaintiffs’ Opposition to Cablevision’s Motion (emphasis added). In 1980, a Universal affiliate released 26 Id. at 496-97. for Summary Judgment at 19 (Sept. 22, 2006), the film for sale and rent on videocassettes. Id. The 27 In 2006, Eminem settled a federal lawsuit that he ini- Twentieth Century Fox Film Corp., Case No. 06-CV- plaintiffs brought suit, alleging that the agreement did tiated in Michigan against several Web vendors of 3990. not cover videocassettes. The district court granted ring tones. Eminem’s complaint alleged copyright 36 See Plaintiffs’ Reply Memorandum in Support of summary judgment in favor of the defendants. Id. at infringement and violations of the Lanham Act based Motion for Summary Judgment at 4 (Oct. 6, 2006), id. 228. See also Rooney v. Columbia Pictures Indus., upon the vendors’ sale of Eminem’s songs as ring tones 37 See generally Cablevision’s Motion for Summary Inc., 538 F. Supp. 211 (S.D. N.Y. 1982), aff’d, 714 F. without his permission. See, e.g., Eight Mile Style, Judgment (Aug. 25, 2006); Cablevision’s Reply in 2d 117 (2d Cir. 1982), cert. denied, 460 U.S. 1084 LLC v. Cellus USA, Inc., Case No. 2:05cv73788 (E.D. Support of Motion for Summary Judgment (Oct. 6, (1983), in which the court held that language in a Mich. Oct. 4, 2005). Eminem’s attorneys have stated 2006); and Cablevision’s Opposition to Plaintiffs’ licensing agreement giving the right to defendants to dis- that they intend to target distributors of karaoke ren- Motion for Summary Judgment (Sept. 22, 2006), id. tribute a film “by any present or future methods or ditions of Eminem’s tunes. 38 Twentieth Century Fox Film Corp. v. Cablevision, means,” and by “any other means now known or 28 Twentieth Century Fox Film Corp. v. Cablevision Sys. Opinion, Case No. 06-CV-3990 and 06-CV. 4092 unknown” encompassed distribution via videocas- Corp., Case No. 06-CV-3990 (S.D. N.Y. filed May 24, (S.D. N.Y. Mar. 22, 2007). sette, even though that technology was not in existence 2006). 39 XM filed a motion to dismiss the complaint, argu- when the licensing agreement was executed. Id. at 29 Atlantic Recording Corp. v. XM Satellite Radio, ing that its Inno player was protected as a digital audio 223, 228-29. The court stated: “The contracts in ques- Inc., Case No. 06-CV-3733 (S.D. N.Y. May 16, 2006). recording device (DARD) under the Audio Home tion gave defendants extremely broad rights in the 30 Complaint at 2, Twentieth Century Fox Film Corp., Recording Act (AHRA). The Southern District of New distribution and exhibition of [the] films, plainly intend- Case No. 06-CV-3990. York rejected XM’s argument on the ground that the ing that such rights would be without limitation unless 31 “Linear programming” is described as including AHRA only protects companies from infringement otherwise specified and further indicating that future programming on broadcast networks (i.e., ABC, CBS, claims pertaining to the distribution of DARDs. XM technological advances in methods of reproduction, NBC), as well as basic cable and premium stations (i.e., was not being sued for the distribution of its Inno transmission and exhibition would inure to the bene- HBO and Showtime). Plaintiffs’ Memorandum in device but rather the accompanying service that per- fit of defendants.” Id. at 228. Support of Motion for Summary Judgment at 2 (Aug. mitted consumers (for a fee) to disaggregate playlists. 16 See, e.g., Landon v. Twentieth Century Fox Film 25, 2006), Twentieth Century Fox Film Corp., Case The court found this distinction to be dispositive. In Corp., 384 F. Supp. 450, 454-55 (S.D. N.Y. 1974). No. 06-CV-3990 [hereinafter Memorandum in Support addition, users of XM’s device had to be connected with 17 Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., of Motion for Summary Judgment]. XM’s music service in order to maintain access to the 275 F. Supp. 2d 543 (D. N.J. 2003), aff’d, 342 F. 3d 32 Sony Corp. of Am. v. Universal City Studios, Inc., 464 music files on their devices. See Memorandum and 191 (3d Cir. 2003). U.S. 417 (1984) (holding that Sony betamax recorders Order, Atlantic Recording Corp. v. XM Satellite Radio, 18 Id. at 547-48. were “time-shifting” devices protected from copyright Inc., Case No. 06-CV-3733 (S.D. N.Y. Jan. 19, 2007). 19 Id. at 549-50. infringement claims under the doctrine of fair use). 40 See Library of Congress Web site at http://thomas.loc 20 Id. at 554. 33 See Memorandum in Support of Motion for .gov (emphasis added). 21 Random House, Inc. v. Rosetta Books LLC, 283 F. Summary Judgment, supra note 31, at 4. See also 17 41 5 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER 3d 490 (2d Cir. 2002). U.S.C. §106 (exclusive rights conferred on copyright ON COPYRIGHT §23.02[A] (2006).

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22 Los Angeles Lawyer June 2007 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit. To apply for credit, please follow the instructions on the test answer sheet on page 25.

by DIANE KARPMAN Advice and

The uncertainCONSENTS effectiveness of advance consents is due, at least in part, to a misunderstanding of their purpose and use

FOR MORE THAN 30 YEARS, lawyers have been can give lawyers a powerful tool and a modicum of control over future grappling with California’s stringent rule governing advance con- events. Careful consideration of a number of guiding principles in sents1—frequently without success.2 Continuing legal education using, drafting, and executing consents will substantially increase the courses, including the mandatory courses on ethics, have brought an likelihood that they will be enforced. increased awareness of conflicts. Arguably, there are some cases in Some of these factors have already received judicial approval. They which the interests of the clients are completely aligned. However, in include a consideration of the client’s status, the lawyer’s status, and some instances, the mere passage of time can cause aligned interests the scope and timing of the consent. However, the most important of clients to diverge. And perhaps because of the greater sensitivity element has been the degree of disclosure in the consent. Consents that to conflicts engendered by the educational requirements, fewer and fail to consider the specifics of a given client, lawyer, and situation fewer conflicts are being held to be unforeseeable. Thus, in California, are simply less sustainable.6 These blanket or open-ended consents the issue often is not whether there is a consent, but how many are that are not specifically tied to particular events or circumstances pur- there?3 port to waive any conflicts that could arise at any time in the future. The varied success in using advance consents is at least in part due Sometimes, they are buried in lengthy fee agreements. These consents to lawyers misunderstanding their purpose and, therefore, their use.4 seldom comply with the disclosure goals of Rule 3-310 of the In addition to protecting clients’ interests, advance consents protect California Rules of Professional Conduct or Rule 1.7 of the ABA lawyers from clients who have selective memories or unpredictably Model Rules of Professional Conduct. play the conflicts card. They also help avoid a court’s “factual reconstruction”5 of the terms of the attorney-client relationship. Diane Karpman, of Karpman & Associates in Los Angeles, has been qualified When representing multiple clients with potentially divergent as a legal ethics expert in state and federal courts. Her practice focuses on interests, advance consents, while sometimes fraught with problems, representing lawyers in ethics matters.

Los Angeles Lawyer June 2007 23 Rule 3-310(A) requires attorneys to inform their clients of the Rule 3-700 and Model Rule 1.16 mandate the lawyer’s withdrawal events or facts that create or could result in a conflict, as well as the from the representation of both to comply with the duty of loyalty. reasonably foreseeable adverse consequences7 or the material risks.8 This occurs, for instance, when a longstanding corporate client wants To fulfill that duty and obtain an informed consent, the client needs to provide for the joint defense of its own and its employee’s inter- sufficient information to be able to evaluate and consider fully the ben- ests because of the company’s indemnification obligations or to be able efit and detriment of the proposed to control the defense. If with- consent in order to understand drawal might otherwise be what is being agreed to. The more required, the consent allows the information that the client has, parties to allocate risk in the more likely that the consent advance, and prevents the newer will be validated by the court.9 A client from denying the primary consent is tantamount to a con- client its long-trusted counsel.15 tractual offer—and like any other However, this issue is often dri- offer, its terms must be definite ven by its context. An individual and certain. Therefore, blanket client seeking justice in a marital or open-ended consents often fail dissolution or criminal case will to give clients enough information rarely be deemed to have know- to hold them to their promise. ingly consented to sharing “his or Nevertheless, blanket consents her” lawyer.16 However, if a are routinely used to achieve a lawyer is working for an insur- variety of other objectives. They ance carrier in a tripartite rela- educate consumers of legal ser- tionship or representing a cor- vices about how conflicts can poration or a class, the clients occur. For clients who have been reasonably expect to share the educated about conflicts, blanket loyalty of their counsel.17 consents open the door to dis- When clients are experienced cussions if a potential conflict consumers of legal services who ripens into an actual one. Finally, are reasonably informed and blanket consents can be employed independently counseled, there to leverage client cooperation in is little reason to believe that they working out a problem, thereby are being taken advantage of by promoting the interests of all their lawyers—and like others in clients in achieving the right to the marketplace, these clients counsel of their choice. should be held to their bargains. Thus, large companies can con- Client Status sent under circumstances in The attorney-client relationship which an individual might not is contractual. Once initiated, the be allowed to do so. Sophistic- relationship imposes duties under ated clients who are versed in the law of agency and trusts10 in legal theories and routinely use addition to other laws relating legal services are commonly held specifically to lawyers. In profes- to their promises.18 Part of the sional responsibility, although the retention agreement is character- determination, though, may be based upon the degree of risk in the ized as being made at arm’s length, a presumption exists that the attor- engagement. For instance, a minor lease for a Fortune 500 company ney-client relationship is one that manifests unequal bargaining might justify the use of an advance consent, whereas the same positions.11 This is in addition to the basic rule of construction, advance consent on the same lease might not be justified for a small, which requires the fee agreement to be construed against the lawyer.12 closely held corporation.19 Like any other type of agreement in which the parties have unequal Major corporations have experienced in-house counsel to approve bargaining positions due to their position or understanding of infor- and review proposed consents. These companies often attempt to dic- mation, the agreement can be reformed or voided. This presumption tate the terms of the retention and representation on a “take it or leave of inequality is exacerbated by ethical rules that can create an unfair it” basis. Often, these companies will require execution of their form situation for attorneys. fee agreements, which contain lists of subsidiaries or other compa- Against that backdrop, a detailed advance consent establishes nies with whom they have strategic relationships, and whom the actual and accurate client expectations and can create and demon- lawyers agree not to represent or sue. Thus, the presumption of strate equality in the relationship.13 For this reason alone, the judi- unequal bargaining power is absent.20 ciary should support robust consents because they illustrate the cli- Since these corporations employ teams of attorneys in specialized ent’s thoughts at the time of the agreement rather than impressions areas, depending on the case, they may not expect any one attorney created years later. to faithfully represent their interest in all the endeavors of a corpo- The client’s status is key to determining the client’s reasonable ration and its subsidiaries. They are more likely to agree to an expectations. An agreement with someone deemed disadvantaged, such advance consent for unrelated business matters, such as representa- as a minor or an intoxicated person, can be set aside because of a lack tion of employees in workers’ compensation matters adverse to the of capacity. The emotional and intellectual capacity of the client, and company, insurance matters, or small contracts. Although some of the the possibility of manipulation by a coclient, are also important.14 titans of industry can be offended by proposed consents,21 the For example, if a conflict arises between jointly represented clients, Association of Corporate Counsel published an “info pak” on con- RON OVERMYER

24 Los Angeles Lawyer June 2007 MCLE Answer Sheet #160 MCLE Test No. 160 ADVICE AND CONSENTS

The Los Angeles County Bar Association certiﬁes that this activity has been approved for Minimum Name Continuing Legal Education legal ethics credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization

Address 1. A lawyer who obtains a blanket consent from a client 11. Rule 3-310 is flexible, so a consent can be obtained does not have to obtain any other waiver from that at anytime, even after the conflict has vested. City client. True. State/Zip True. False. E-mail False. Phone 12. Lawyers involved in a firm audition known as a 2. The status of a client is irrelevant to consent vali- beauty contest cannot be subject to disqualification if State Bar # dation. they are not retained. True. True. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. False. 1. Study the MCLE article in this issue. 2. Answer the test questions opposite by marking 3. Blanket consents are per se unethical. 13. A lawyer cannot represent a corporation and an the appropriate boxes below. Each question True. employee who are both defendants in a case. has only one answer. Photocopies of this False. True. answer sheet may be submitted; however, this form should not be enlarged or reduced. False. 4. Rule 3-310(A) of the California Rules of Professional 3. Mail the answer sheet and the $15 testing fee Conduct requires that the lawyer inform the client of 14. A consent that contains the provisions of Rule 3-310 ($20 for non-LACBA members) to: reasonably foreseeable consequences as well as the is a sufficient method of advising a client of the rea- Los Angeles Lawyer facts and events that create the potential or actual con- sonably foreseeable consequences of a consent. MCLE Test flict. True. P.O. Box 55020 Los Angeles, CA 90055 True. False. False. Make checks payable to Los Angeles Lawyer. 15. The fundamental paradigm of the Rules of 4. Within six weeks, Los Angeles Lawyer will 5. A consent is the same as an offer and must be def- Professional Conduct is one lawyer serving one client. return your test with the correct answers, a rationale for the correct answers, and a inite and certain so that clients will understand what True. certificate verifying the MCLE credit you earned they are agreeing to waive. False. through this self-assessment activity. True. 5. For future reference, please retain the MCLE False. 16. Rule 3-310 permits clients to consent to any cir- test materials returned to you. cumstance, including a lawyer being on both sides of 6. Absent an informed written consent, if a conflict a litigation. ANSWERS occurs in the multiple representation of joint venturers, True. Mark your answers to the test by checking the a lawyer must withdraw from the representation of all False. appropriate boxes below. Each question has only the clients. one answer. True. 17. Consent counsel may be selected from the same firm False. of the lawyer seeking the consent. 1. ■ True ■ False True. 2. ■ True ■ False 7. A waiver that is obtained after the inception of the False. 3. ■ True ■ False attorney-client relationship is an arm’s-length trans- ■ ■ action. 18. Changing business relationships among corpora- 4. True False True. tions, such as mergers and acquisitions, can result in 5. ■ True ■ False False. a client-created conflict of interest. 6. ■ True ■ False True. 7. ■ True ■ False 8. Context is irrelevant in consent validation; a client False. 8. ■ True ■ False accused of criminal conduct is the same as a client who is the member of a class action with 1,000 members. 19. Clients are described as “poisoning the well” if they 9. ■ True ■ False True. distribute their conflicts throughout a legal community 10. ■ True ■ False False. to deprive their adversaries of the ability to retain 11. ■ True ■ False counsel of their choosing. 12. ■ True ■ False 9. If in-house counsel reviews a prospective consent for True. ■ ■ a corporation, the consent is more likely to be vali- False. 13. True False dated. 14. ■ True ■ False True. 20. An informed consent will prevent the client or the 15. ■ True ■ False False. court from engaging in “factual reconstruction.” 16. ■ True ■ False True. ■ ■ 10. An attorney should be cautious when representing False. 17. True False two or more clients in the same industry. 18. ■ True ■ False True. 19. ■ True ■ False False. 20. ■ True ■ False

Los Angeles Lawyer June 2007 25

flicts that contains several pages on consents, indicating a level of accep- specific representation. That argument alone may defeat a standard tance among in-house corporate counsel.22 form clause contained in an engagement letter.37 Some jurisdictions do not permit governmental organizations to However, attorneys obtain broad consents—despite their dubi- “consent” to a conflict of interest:23 “A governmental lawyer cannot ous enforceability—to obtain leverage in neutralizing client objec- obtain the informed consent of the citizenry to the representation of tions should a conflict materialize.38 Nevertheless, attorneys have an conflicting interests.”24 This concept is based on the appearance of obligation to request additional consents as events occur and the con- impropriety and public trust in the integrity of the judicial system. The tours of the relationship unfold.39 Indeed, in one well-known case knee-jerk prohibition on governmental consents should be compared that applied the California consent rule,40 the court indicated that with the concept of the “revolving door,” which allows former gov- a client’s consent to a potential conflict failed to protect the firm from ernment lawyers to find employment in the private sector. Everyone the actual conflict that evolved, although the clients were national in society accepts the benefits and burdens of this practice. Therefore, airline carriers with teams of in-house lawyers. An ABA ethics opin- governments should be permitted to consent when proper circum- ion, later withdrawn, stated, “Even though one might think that the stances are presented. very purpose of the prospective waiver is to eliminate the need to return to the client to secure a ‘present’ second waiver when what Lawyer Status was once an inchoate matter ripens into an immediate conflict, The enforceability of a consent is enhanced when it is needed because there is no doubt that in many cases that is what will be ethically of a lawyer’s special characteristics. A consent is appropriate when required.”41 a client seeks an attorney who specializes in a unique area of the law Although a standard form or blanket consent fails to satisfy the or a boutique practice “in which conflicts between clients are fre- requirement that the lawyer consider and explain the reasonably fore- quent.”25 For instance, the concurrent representation of several seeable consequences,42 “California law does not require that every school districts,26 numerous airlines,27 or financial service providers28 possible consequence of a conflict be disclosed for the consent to can justify a consent in these niche practices. Even being recognized be valid.”43 Acts of war, or a contractual equivalent that cannot be for “aggressive” behavior may validate a consent.29 Hopefully, the foreseen—such as frustration of purpose or impossibility of per- converse would be approved as well. Additionally, if the services of formance—would likely justify the absence of an explanation in a a specific lawyer are unavailable in the marketplace without an consent. advance consent, the freedom of contract and right to choose one’s By contrast, clauses that are limited to specific areas of practice, own lawyer may trump any subsequent claims of duress.30 scope of representation, and time periods are easier for courts to Advance consents may also be justified when the client is seeking approve.44 For instance, if a sophisticated client retains a firm for a advice that, by its nature, will lead to a one-time retention. For specific bankruptcy problem, then it is conceivable that the client will example, immigration or ethics cases, or even the representation of understand a request to not disqualify the firm in other areas of financial institutions,31 can validate the use of a consent to future con- practice. flicts of interest. California’s policy favoring client autonomy and decisional free- Details, Timing, and Confidential Information dom in the area of consents is extremely strong. Indeed, the California Consents should be as detailed as possible. They should provide the Supreme Court in Maxwell v. Superior Court32 held that an indigent, identity of the existing client who may become adverse to the new criminal defendant in a capital case could grant full media rights to client.45 Often, the identity of the adverse client can be identified by his lawyers because the consent fully explained how the lawyers’ eco- the type of business involved, if not by name. In describing the con- nomic interest could conflict with the interests of the accused. The court flict, two primary fiduciary duties may be implicated: loyalty and con- balanced the defendant’s right to counsel of his choice in a death fidentiality.46 Clients have the right to fully understand when the per- penalty case with counsel’s full and complete right to exploit the crim- formance of those duties is impaired. A robust consent describes the inal’s story. During oral argument, counsel agreed that full and com- specific duty and the impairment that could occur. plete exploitation rights were tantamount to overreaching. Still, the When “the attorney’s loyalty, i.e., independent judgment” is consent was deemed valid. impaired, a disclosure might contain advice to seek independent counsel to review the consent.47 “Consent counsel” should be truly Scope of Consents independent—not a suite mate or friend of the attorney seeking the Overly broad and blanket consents are less sustainable, but generally consent—and chosen by the client. The recommendation to seek a consent that authorizes an anticipated event before it happens is jus- independent counsel is the aspect of the consent that is important, not tifiable. Broad, nonspecific consents substantiate claims of over- whether that advice was heeded. Indeed, a client’s failure to follow reaching and predatory lawyering. For example, one consent relieved the advice can establish that the consent was voluntarily given. “said Boone (the attorney) from all rights, burdens, obligations, and The most important aspect of any advance consent is the full, privileges which appertain to his said employment, and consent[ed] unvarnished explanation of the potential or actual conflict. While lay- that said Boone may engage in services pro and con, as he may see ing out these details may make lawyers and clients squeamish, com- fit.”33 Although this is an historic example of a consent, similar con- plete transparency will avoid claims of the lawyer taking advantage sents are still being employed. of a client by overreaching or “snatching” a consent because of Broad, generic clauses in a fee agreement are more susceptible to greed or other improper motives.48 attack because they fail to satisfy the requirements of the rules and According to Rule 3-310, a lawyer faced with a conflict must not are often employed without concern for client status. For example, accept or continue a representation without obtaining an informed they are commonly hidden in the boilerplate of a standard fee agree- written consent. The timing of the consent can demonstrate duress, ment.34 Yet these broad sweeping clauses are being increasingly or its absence. Thus, advice to seek independent counsel necessarily employed in the profession, particularly by large law firms, although implies a reasonable opportunity, under the circumstances, to obtain the lawyers using them commonly found them difficult to obtain and it. The rule of thumb is three or four business days. do not know whether they are enforceable.35 The reasonableness of that opportunity may bolster the enforce- Simply put, broad clauses commonly fail to consider the reason- ability of the consent. Obviously, a client’s alternatives are more ably foreseeable consequences36 involved with a specific client and a limited on the eve of trial than before commencing litigation. Therefore,

28 Los Angeles Lawyer June 2007 a request for consent should be made at the earliest opportunity to subsidiaries53 and allow lawyers to continue the representation if a avoid the delay being characterized as sinister in a subsequent motion blameless client and lawyer, due to some accidental circumstances, are for disqualification—or in a suit for malpractice. at risk for having their ongoing relationship dissolved by the court. A consent creates an engagement of limited scope—for example, Even intricate conflict-checking systems can fail to uncover related “We represent you only in this aspect of your bankruptcy, and you party conflicts or those that seem facially unconnected. agree not to conflict us out of other litigation extrinsic to that mat- The merger mania among corporations is mirrored in legal prac- ter.” Therefore, lawyers should include in the consent a clause warn- tice. Megafirms are a rapidly growing legal phenomenon, and con- ing the client to be circumspect in disclosing other extraneous conflict clearing is mandated before serious discussion regarding law firm fidential information. Beware, however, that the client’s inability to mergers begins. Not only would client identity need to be disclosed disclose information—or the insecurity in doing so—can interfere with but also matter status, client goals, objectives, and strategy. In this the competent representation of less sophisticated parties. Therefore, instance, obtaining an advance consent from clients should be rela- the inadvertent transmission of confidential information should be tively easy, because conglomerate clients with developed law depart- anticipated in the agreement, perhaps by a provision for ethical ments hopefully understand that law firms merge just as other types walls, even when a client is warned and agrees not to disclose collateral, of businesses do. confidential information.49 Lawyer “beauty contests” also pose substantial risks. When The problem of confidential disclosures commonly arises in a potential clients are shopping for representation, they must disclose joint venture when the parties consult a lawyer who has represented confidential information to a firm to allow it to evaluate the clients’ one of the parties in the past. Identifying and confirming in writing work. However, that disclosure could taint the firms under consid- who is and is not the client is crucial. If the lawyer wants to main- eration. An advance consent in these circumstances should be under- tain the longstanding client relationship, a consent agreed to by all stood and accepted as a condition of participating in these contests. other participants is wise. The lawyer may condition his or her Advance consents can also assist in the identification of the client engagement by the other joint venturers on their agreement to waive in a case of joint venturers as well as promoters of a new corpora- the right to disqualify the lawyer in subsequent adverse representation or enterprise. The advance consent can effectively deny a par- tions:50 “California courts have long recognized that a lawyer may ticipant in the new endeavor the claim of “clienthood.”54 represent an interest adverse to a client in a matter directly related Some Los Angeles firms refuse to allow attorneys to conduct ini- to the lawyer’s prior representation of the client ‘where the client tial client interviews and require paralegals to first obtain advance con- expressly or impliedly consents to the adverse representation.’”51 sents before discussing any matter with prospective clients. This is particularly common for lawyers in niche practices—such as family law, Common Scenarios antitrust, and intellectual property. Since firms can be tainted from A number of situations exist that, by nature, make an advance con- conversations with potential clients, a putative but disingenuous sent not only necessary but also easier for the prospective client to client can attempt to poison the well and prevent a particular lawyer accept. Lawyers should consider employing an advance consent in these from representing an adversary. circumstances. Positional conflicts—those that arise due to a client’s ideology or Corporate mergers and acquisitions give rise to a host of possi- business goals—are often the subject of advance consents. Obtaining ble conflicts. Suddenly, through no fault of a lawyer or his or her firm, a client’s consent to having taken a different position in the past or the firm may realize it is on both sides of a deal. The client may cre- to taking an opposing position in the future may seem unnecessary ate the conflict and so should easily understand the need for a con- in Anglo-American jurisprudence.55 However, some enterprises— sent.52 Numerous ethics opinions address the scenario of parents and particularly financial institutions and insurance carriers—require

Drafting Effective Advance Consents While sample forms are helpful, they cannot replace carefully drafted advance consents that are appropriately tailored to the facts and clients at issue. To enhance the likelihood that an advance consent will be enforced, attorneys should follow several principles. ✒ Be as specific as possible. This is because a court ruling on a consent will make a fact-specific inquiry. Use the parties’ actual names in lieu of Client #1 and Client #2. Detail precisely what is being agreed to. ✒ Limit the breadth of the consent. A consent is more likely to be rejected if it is unnecessarily broad. ✒ Restrict the consent’s temporal scope.1 A consent applicable to a particular case is more likely to be enforced than one that blithely frees a firm from its fiduciary duties forever. A periodic, fresh consent is also helpful, since the passage of time in disqualification motions is significant and can be determinative. ✒ Have a substantive, detailed conversation with the client about what the consent means. A complicated or substantial consent without an explanation is less valuable than one that has been completely explained to the client. ✒ Explain the nature of the anticipated conflicts and the areas of conflict that cannot be foreseen, the effect of those conflicts, and how the consent changes the representation regarding the duties of loyalty and confidentiality. ✒ Consider the sophistication of the client. ✒ Think about the interests of justice and obligations to the client. Too great a departure from these interests and obligations will result in a consent that will not be enforced, even if it is properly detailed, explained, and agreed to. ✒ Give the client instructions on what is expected regarding the client’s actions in light of the consent. Tell the client to evaluate the situation, perhaps consult with independent counsel, and respond within a designated number of days.—D.K.

1 Concat LP v. Unilever PLC, 350 F. Supp. 2d 796 (N.D. Cal. 2004).

Los Angeles Lawyer June 2007 29 that their counsel never assume a position 13 This result is consistent with the validation of an adverse to their side of a particular controversy attorney-client relationship, which is determined according to the reasonable expectations of the client. Ronald or legal theory. Informing a client at the begin- Friedman, The Creation of the Attorney-Client ning of representation via an advance con- Relationship: An Emerging View, 22 CAL. W. L. REV. sent serves an educational purpose. These con- 209 (1986). sents should be supported by clients and courts. 14 This can occur in situations involving an “accom- When lawyers become familiar with the modation client”—someone a preexisting client requests the attorney to represent concurrently. Cases involving concept of consents, they may overreact and the joint representation of a company and its employee request consents when they are unnecessary, are examples. See Los Angeles County Bar Association, as an ounce of prevention. Lawyers will be Professional Responsibility & Ethics Committee, overly inclusive and may perceive a conflict Formal Op. No. 471 (Conflicts of Interest—Informed where none exists. This overly cautious behav- Consent), available at http://www.lacba.org/Files /Main%20Folder/Documents/Files/Eth471%2012-21 ior can backfire. For example, in a disquali- -92.pdf. The concurrent representation of a defendant fication motion or malpractice litigation, the corporation and its former CEO/CFO presents another mere fact that some members of a firm were dilemma. See Rite Aid Corp. Sec. Litig., 139 F. Supp. murmuring about the possibility of a conflict 2d 649 (E.D. Pa. 2001); Zador Corp. v. Kwan, 31 Cal. could be construed as evidence that a conflict App. 4th 1285 (1995) (Two prior consents allowed firm existed. Attorneys have been prosecuted by to continue representing company when divergent interests developed that prohibited continued joint the State Bar for requesting consents, because representation of two defendants.). the request can be deemed as an acknowl- 15 Zador, 31 Cal. App. 4th 1285; Los Angeles County edgment of a problem, whether that analysis Bar Association, Professional Responsibility and Ethics was accurate or not. Committee, Formal Op. No. 471 (employer/employee Ultimately, deciding whether an advance concurrent representation). Some commentators consider California’s broad consent policy to be detri- consent is necessary should be based on the mental to clients’ well being. See, e.g., Theodore J. foreseeability and waivability of the con- Schneyer, Searching for New “Particles” in the Law of flicts that may arise. Advance consents can Lawyering; Recent Developments in the Attribution of stave off problems that otherwise might be “Clienthood,” 1 J. INST. STUDY LEGAL ETHICS 79 (1996); insurmountable after a conflict has arisen. ■ Fred C. Zacharias, Waiving Conflicts of Interest, 108 YALE L. J. 407 (1998). 16 In some instances, the actual conflict will be judicially 1 The terms “consent” and “waiver” are often, and deemed “unconsentable.” Klemm v. Superior Court, 75 incorrectly, used interchangeably. A consent is an Cal. App. 3d 893 (1977). Most authorities agree that agreement by a client before a triggering event. A a lawyer cannot represent both sides of a litigation, and waiver is broader and involves the relinquishment of so that situation is unconsentable. See MODEL RULES a right before or after an event. OF PROF’L CONDUCT R. 1.7 (b)(3) and RESTATEMENT 2 – EXPERT WITNESS – See CAL. RULES OF PROF’L CONDUCT R. 3-310, which (THIRD) OF LAW GOVERNING LAWYERS §122(2) (Client requires an “informed written consent” for most cases. Consent to a Conflict of Interest). CONSTRUCTION Rule 3-310(B) only requires a written disclosure if the 17 Schneyer, supra note 15. attorney had a relationship with a party or witness in 18 A client’s motion to disqualify in the face of a con- 40 YEARS the matter involving the attorney’s current client. sent is a revocation, or the exercise of a client’s unfet- CONSTRUCTION EXPERIENCE Arguably, there are some situations in which the inter- tered right of discharge. Case law is evolving in situa- ests of the parties are aligned, and therefore a conflict tions in which elements of promissory estoppel or is highly unlikely. SPECIALTIES: detrimental reliance are present. RESTATEMENT (THIRD) 3 CAL. RULES OF PROF’L CONDUCT R. 3-310(C), Official Law Suit Preparation/Residential OF LAW GOVERNING LAWYERS §122 (Client Consent to Discussion: “Moreover, if the potential adversity should a Conflict of Interest). Waivers, however, are not uni- Construction, Single and Multi- become actual, the member must obtain a further lateral, and one party’s revocation can have a significant family, Hillsides, Foundations, informed written consent of the clients pursuant to para- negative impact upon the right of innocent clients to Concrete Floors, Retaining graph (C)(2).” See also Goss Graphics Sys., Inc. v. counsel of their choice. Arguably, a revocation because Walls, Waterproofing, Water Man Roland Druckmaschinen Aktiengesellschaft, 139 of a “changed mind” can be addressed in an ex ante F. Supp. 2d 1040 (N.D. Iowa 2001) (With two advance Damages, Roofing, Carpentry/ waiver that articulates the process to be employed in that consents, the firm was disqualified based on the court’s circumstance. See D.C. Bar, Legal Ethics Committee, Op. Rough Framing, Tile, Stone, determination that the narrower and later consent was No. 317 (Nov. 2002), at http://www.dcbar.org Materials/Costs, Building Codes. controlling.). /for_lawyers/ethics/legal_ethics/opinions.cfm. 4 The American Bar Association’s Ethics 2000 amend- 19 In small, closely held corporations, it is important to CIVIL EXPERIENCE: ments to the Model Rules of Professional Conduct give the equivalent of a Miranda warning to all con- Construction defect cases for have endorsed the use of informed written consents, and cerned regarding the client’s identity, because the prin- insurance companies and many states have followed suit to the extent they did cipals or owners often believe that they are the clients. attorneys since 1992 not already permit them. 20 John Leubsdorf, Pluralizing the Attorney-Client 5 Charles W. Wolfram, Former Client Conflicts, 10 GEO. Relationship, 77 CORNELL L. REV. 825 (1992). J. LEGAL ETHICS 677 (1997). 21 James Schaller, Waiving a Yellow Flag at Prospective 6 Blanket consents are not per se unethical. State Bar of COOK Waivers, LEGAL TIMES, Mar. 12, 2001. California, Standing Committee on Professional Re- 22 CONSTRUCTION COMPANY PETER JARVIS & MARK FUCILE, A CONFLICTS PRIMER sponsibility & Conduct, Formal Op. No. 1989-115. n.10 (2002). STEPHEN M. COOK 7 CAL. RULES OF PROF’L CONDUCT R. 3-310(A). 23 See http://www.freivogelonconflicts.com/new General Contractors License B431852 8 ABA MODEL RULES OF PROF’L CONDUCT R. 1.7 [22]. _page_38.htm#Governments. Graduate study in Construction 9 Id. 24 2 RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL L.A. Business College, 1972 10 STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS MALPRACTICE 888 (2006). OF LAW & ETHICS 20 (5th ed. 1998). 25 CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 347 Tel: 818-438-4535 Fax: 818-595-0028 11 RAFAEL CHODOS, THE LAW OF FIDUCIARY DUTIES 34 (1986). Email: [email protected] (2000). 26 Elliott v. McFarland Unified Sch. Dist., 165 Cal. App. 12 7131 Owensmouth Ave., Canoga Park, CA 91303 CIV. CODE §1654. 3d 562 (1985).

30 Los Angeles Lawyer June 2007 27 Blecher & Collins v. Northwest Airlines, 858 F. Supp. 1442 (C.D. Cal. 1994). 28 Visa U.S.A. Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Cal. 2003). 29 Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F. 2d 1195 (2d Cir. N.Y. 1978). 30 Elliott, 165 Cal. App. 3d 562. 31 Visa, 241 F. Supp. 2d 1100. 32 Maxwell v. Superior Court, 30 Cal. 3d 606 (1982). 33 Richard W. Painter, Advance Waiver of Conflicts, 13 GEO. J. LEGAL ETHICS 289, 293 (2000). See also In re Boone, 83 F. 944 (1897). 34 SUSAN P. SHAPIRO, TANGLED LOYALTIES: CONFLICT OF INTEREST IN LEGAL PRACTICE (2002). 35 Id. at 395; see also Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F. 2d 1195 (2d Cir. 1978). 36 CAL. RULES OF PROF’L CONDUCT R. 3-310 (A); MODEL Speciality Suits in Plus, Missy and Petite RULES OF PROF’L CONDUCT R. 1.7 (“The more com- Sizes for Career and Formal Occasions prehensive the explanation of the types of future rep- Kasper, JNY, Anne Klein, AK2, resentations that might arise and the actual and rea- Theory + More sonably foreseeable adverse consequences of those We also have fine jewelry to complete your suit. representations the greater the likelihood that the client HOURS: 10 a.m.-6 p.m. Mon.-Fri. will have the requisite understanding.”). 11 a.m.-4 p.m. Sat. 37 Worldspan L.P. v. Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356 (N.D. Ga. 1998). 213-747-2829 38 SHAPIRO, supra note 34, at 366. 2296 S. Figueroa St., Los Angeles 90007 39 Diane Karpman, Written Consents to Prospective (Corner of 23rd and Figueroa) Conflicts of Interest, CAL. LAWYER, Dec. 1998. www.TheSuitCloset.com 40 Blecher & Collins v. Northwest Airlines, 858 F. [email protected] Supp. 1442 (C.D. Cal. 1994). 41 ABA Comm. on Ethics and Prof’l Responsibility, Op. LOS ANGELES LAWYER READERS WILL No. 93-372 (1993) (Waivers of Future Conflicts of SAVE 15% Interest) (withdrawn). BY MENTIONING THIS AD* 42 Foreseeable consequences encompass the benefits and burdens of proceeding in a conflict. FREE PARKING IN BACK OF STORE 43 Zador Corp. v. Kwan, 31 Cal. App. 4th 1285 (1995). *Discount not available on jewelry or sale items. First time customers only. 44 See MODEL RULES OF PROF’L CONDUCT R. 1.2(c). 45 Clearly, and initially, attorneys should obtain a consent from the first client to disclose its identity before it is disclosed to the second client. 46 MALLEN & SMITH, supra note 24, at 599. FORENSIC CONSTRUCTION 47 Id. at 617. FORENSIC CONSTRUCTION 48 For a catalogue of the despicable claims that can be DEFECT & ENGINEERING, INC. asserted against lawyers who request and obtain con- A PROFESSIONAL CORPORATION sents, see Larry Fox, Forgeddabout Conflicts—If Citibar Has Its Way, We Can Have Just One Big Forensic Investigation of: Regulatory Law Firm, 30 HOFSTRA L. REV. 717 (1999). For a compliances, Construction, Civil, Structural, response to those claims, see Jonathan Lerner, Building Codes, Industrial, Environmental Honoring Choice by Consenting Adults: Prospective Conflict Waivers as a Mature Solution to Ethical Engineering Issues & Defects Including: Gamesmanship—A Response to Mr. Fox, 29 HOFSTRA Structural Failure, Building Codes, Tentative L. REV. 971 (2001). Improvements, Foundations, Construction 49 See Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. Defects, Grading/Drainage, Hydraulics/Flood. 2d 1100 (N.D. Cal. 2003) (holding that the consent was Water/Groundwater Quality/Quantity sufficient to permit a firm to sue a present client on an Contamination and Intrusion. Sewer System, unrelated matter. The law firm erected an ethical wall Industrial Waste, (Liquid, Solid), Underground to prevent leaks regarding confidential information.). Tanks, Erosion Control, Dams, Bridges, Roads, 50 Los Angeles County Bar Association, Professional Land fills. EPA, NEPA, CEQA, NPDES, TMDLs, Responsibility and Ethics Committee, Formal Op. No. BMPs, SWEPPS, SUSMP, OSHA 471. 51 Id. at 4 (citing Grove v. Grove Value & Regulator Additionally, this Corporation can also provide expert witness in the following areas: Co., 213 Cal. App. 2d 646, 652-53 (1963) (citing, in turn, Lessing v. Gibbons, 6 Cal. App. 2d 598 (1935), • Real Estate broker malpractice • Prosecution of Breach of contract • Breach of Commission agreement between seller and buyer in which actress Dolores Del Rio unsuccessfully claimed • Real Estate agent malpractice • Breach of Insurance contract •Prosecution of Breach of Listing • Violation of contractors licensing a conflict to decrease the fees owed to her attorney. The • Breach of fiduciary duties and sales contract court’s denial of Del Rio’s claim was based on an oral rules and regulations consent to joint representation.)). OUR ATTORNEYS ARE ALSO LICENSED CALIFORNIA REAL ESTATE BROKERS 52 Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121 (N.D. Ohio 1990). Law Offices of F. Bari Nejadpour & Associates, a Professional Law corporation, is proud to endorse Ms. Massie Munroe as an excellent Professional Engineer who is also a 53 See SHAPIRO, supra note 34, at 395. well-recognized Construction & Engineering Expert Witness. 54 Schneyer, supra note 15. 55 “The representation of clients does not constitute ASSIE UNROE RESIDENT XPERT ITNESS endorsement of their political, social or moral beliefs M M , M.S., P.E., P & CEO • E W (ABA Model Rule 1.2).” Diane Karpman, An Ethics Tel: 213-632-1310 Fax: 213-632-5299 3540 Wilshire Blvd., Suite #714, Los Angeles, CA 90010 Riddle in the Notorious “Torture Memo,” CAL. BAR E-mail: [email protected] • www.ConstructionDefect.us J., Feb. 2005.

Los Angeles Lawyer June 2007 31 N A M R E G . J

C I R E D N A AN LDM GO D. Y E R F F

E J

Y B pollutionin the BLOGOSPHERE The only purpose of a new form of blog, called a splog, is fraud and infringement

f the many innovations spawned by the Internet, one of the most highly prized is the Web log, or blog. Some courts have defined a blog benignly as “an online personal journal with reflections, comments, and often hyperlinks provided by the writer,”1 or a place “where users can post a chronological, up-to-date e-journal entry of their thoughts.”2 Others have lauded blogs as a development worthy of Gutenberg: “The average computer blogger has, in effect, his or her own printing press to reach the world.”3 Indeed, the U.S. Supreme Court has gushed that “[t]he Oarchitecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding [of the Republic]. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means….”4 Following suit, the California Supreme Court recently conferred broad legal immunity on blogs that republish defamatory statements, holding that “plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.”5 Another California court quashed a subpoena to a blog that had disseminated unpublished trade secrets, characterizing the blogger as a journalist covered by the reporter’s shield law.6 Yet the privileged status conferred on blogs as a bastion of free speech ignores a metamorphosis that has occurred in recent years. Blogs increasingly are profit-motivated endeavors rather than homespun forums giving voice to the voiceless.7 And while it is true that blogs make it easy for anyone to become a publisher, purchasing interesting or attractive original content is expensive, and creating it is time-consuming and still requires old-fashioned hard work. As the number of blogs increases and the com-

Jeffrey D. Goldman and Eric J. German are partners at Mitchell Silberberg & Knupp LLP and are member of the ﬁrm’s Intellectual Property & Technology and Litigation departments. Goldman represents Perfect 10 in Perfect 10 v. Google, Inc., and Goldman and German represented

the plaintiffs in A&M Records, Inc. v. Napster, Inc. AMANE KANEKO

32 Los Angeles Lawyer June 2007 petition for traffic (and the advertising dol- trademark owners can take technological agreed with the plaintiff and held that the lars that follow) heats up, many blogs are steps to encrypt their videos or otherwise defendant’s “unauthorized ‘link’ to the live increasingly relying on infringement of third- make framing difficult, this may also make it webcasts that [the defendant] provides on party copyrights and trademarks in order to impossible for some visitors to the owners’ his website would likely qualify as [an infring- attract interest and gain a following. sites to view their videos. And if pirate clips ing] display or performance of [the plain- As a result, much of what appears on pop up on video-sharing sites such as tiff’s] copyrightable material.”18 blogs today is recycled, or simply stolen, YouTube.com—practically inevitable after In Hard Rock Café International (USA) from established competitors that spend copyrighted or trademarked content is broad- Inc. v. Morton,19 a trademark holder sued the money to create appealing content. Indeed, cast on television—owners will be helpless operator of a licensed Web site for, inter alia, there now is an entirely new form of blog— to prevent blogs from incorporating these offering a framed link to a third-party Web known derisively as a splog—that is not really clips into their own sites. site selling CDs, arguing that the license terms a blog at all. A splog’s entire raison d’etre is One might assume that framing another’s prohibited the use of the licensed mark to sell fraud and infringement—and it serves no copyrighted material, especially infringing merchandise. The court suggested that when conceivable, legitimate, societal function copies of the material, would be prima facie framing is used in such a way that “it is not whatsoever. unlawful. But courts—often wary about clear to the computer user” that two differ- Blogs may victimize copyright and trade- standing in the way of perceived technolog- ent sites are being displayed simultaneously, mark owners in all sorts of ways. At the sim- ical advancement—have not always agreed, the framing Web site could be liable for trade- plest level, a blog might repeatedly republish and the state of the law in this area is far from mark infringement or unfair competition.20 the key portions (if not the entirety) of the certain. For example, in Kelly v. Arriba Soft most recent and newsworthy articles from an Corporation,11 a professional photographer Contextual Advertising owner’s Web site. To avoid charges of blatant, sued a search engine, arguing that the search This uncertain state of the law does little to naked infringement, the blog might accom- engine’s linking to and framing of the pho- deter blogs from appropriating others’ con- pany the copied text with a smattering of tographer’s copyrighted images constituted tent with impunity. Instead, the incentive for superficial commentary about the news— copyright infringement. The Ninth Circuit blogs to appropriate content is only increas- original, perhaps, but banal. Blogs often try initially ruled that the framing was infringing, ing with the expansion of the online adver- to stave off criticism of such tactics by link- holding that “Arriba actively participated in tising market, which is fueled in large part by ing to an original article coupled with a half- displaying Kelly’s images by trolling the web, technology that allows even the most primi- hearted disclaimer like “be sure to read the finding [the plaintiff’s] images, and then hav- tive Web site to earn advertising revenue. By whole article.” Even with this type of rec- ing its program inline link and frame those partnering with advertising companies such ommendation, copying the owner’s copy- images within its own web site.”12 The court as Google’s AdSense and Yahoo’s Overture, righted material is probably not fair use, at later withdrew that portion of the opinion for any site can populate itself with advertise- least under the traditional view.8 But the procedural reasons.13 ments that coincide with the subject matter practice is so widespread, and so often In Perfect 10 v. Google, Inc.,14 another case covered by the site. These advertisements are cloaked under the guise of “commentary,” involving a display of copyrighted photographs referred to as contextual advertising. that few clients will have the resources or by Internet search engines, the district court The process works as follows: A Web site interest to test the issue.9 Clients may view this held that framing was not direct copyright operator that signs up with, say, Google’s conduct as irritating but not worth litigating, infringement, because “the website on which AdSense will “demarcate an area on his web- thus perpetuating the practice. content is stored and by which it is served site that acts as a ‘placeholder’ for an adver- directly to a user, not the website that [frames] tisement. Google will then scan the text of his The Process of Framing it, is the website that ‘displays’ [and ‘distrib- website and populate or fill the placeholder However, some blogs may not stop there. utes’] the content.”15 The court reached this with advertisements it deems relevant to the They may seek to punch up bland prose by conclusion even though the material being content on that site.”21 Every time a computer pilfering images and sounds from other sites— framed was itself infringing. The issue has user clicks on an ad (transporting the user to including videos, photographs, and audio. been briefed and argued to the Ninth Circuit, the advertiser’s site), the advertiser pays a By the simple technological process called and a decision is expected soon. fee to Google, which shares the fee with the framing, images and sounds on a copyright By contrast, in Live Nation Motor Sports, Web site on which the ad appeared. The and trademark owner’s Web site can easily Inc. v. Davis,16 a promoter and producer of more relevant the ads that Google can deliver, and seamlessly be incorporated into a blog’s motorcycle racing events sued the operator of the more clicks those ads will get, and the own presentation. Framing, also known as in- a Web site that provided links to real-time more money Google, and the Web site, will line linking, “occurs when one webpage dis- audio Webcasts of its events, asserting claims earn. Contextual advertising has proven such plays the content of another webpage within for, inter alia, copyright infringement. Unlike an ingenious way of matching advertisers its own borders.…The purpose of framing is a typical hyperlink that simply takes a user to with potential customers that blogs that to create a single seamless presentation that a new Web site, links to real-time audio attract tens of thousands of hits a day can earn integrates the content of the two webpages Webcasts can play the recorded content with- enormous revenue.22 into what appears to be a single webpage.”10 out displaying a new Web page. Although the As more and more blogs become sup- Unauthorized framing is sometimes called defendant argued that he should not be held ported financially by contextual advertise- (and is more accurately viewed as) stealing liable because he merely provided “the same ments, framing seems increasingly indefensi- bandwidth. When a blog frames material audio webcast link freely distributed by [the ble. It hardly seems fair for a blog to from another site, the material, while it plaintiff] and thousands of individuals upon incorporate content that was created by an appears to be part of the blog, technically con- thousands of websites worldwide,”17 the unrelated third party and display it at that tinues to reside at the other site—which con- plaintiff claimed that the link impeded the third party’s expense, while surrounding it tinues to bear the costs to maintain the mate- plaintiff’s ability to sell sponsorships and with contextual ads from which the blog rial on its servers (and to display it to the advertisements on its own Web site as the alone profits. This type of use of another’s blog’s customers). While copyright and “exclusive source” of the Webcasts. The court content is especially unfair when a blog’s

34 Los Angeles Lawyer June 2007 contextual ads are for the originator of the content, or its competitors. Consider, for example, a company that produces live skateboarding events and a Web site featuring a wealth of skateboarding videos, articles, and merchandise. The company decides to partner with Google’s AdSense to place ads on other skateboard- related sites. Meanwhile, the company’s competitors are probably doing the same. A blog about skateboarding is likely to receive contextual ads from Google for the company and its competitors. When a visitor to the skateboarding blog—who is attracted to the blog by the company’s framed content— clicks on one of the company’s contextual ads, the company is forced to pay both Google and the blog for a customer that rightfully belongs to the company in the first place. Worse, if the visitor clicks on an ad for one of the company’s competitors, thereby being transported to the competitor’s site, the blog has used the company’s content to misdirect a customer to the company’s competitor. Either way, the company’s content is being misused by the blog, without permission, to harm the company. Blogs can torment copyright and trademark owners in still more ways. A blog whose primary purpose is earning money from contextual ads can only succeed if it is found by lots of Internet users, whose clicks on ads generate the blog’s revenue. Having helped itself to an owner’s copyrights to produce its con- leading search engines. Though the precise Corporation,29 an entertainment industry tent, the blog may also be tempted to use the algorithms that search engines use to create information provider sued a video rental owner’s trademark and engage in other often- search results are closely guarded secrets, store chain, asserting trademark infringe- sleazy methods of search engine optimiza- common methods for obtaining high page ment and unfair competition based on, inter tion to generate customer traffic. rankings include using a search term repeat- alia, the chain’s use of the plaintiff’s Consumers typically discover new Web edly in the text and metatags of a site, “scrap- MovieBuff trademark in the domain name of sites through a search engine, “which allows ing” (i.e., copying) prominent text from pop- the chain’s Web site and in the Web site’s Internet users to locate Web sites that match ular sites, and creating multiple related Web metatags. The Ninth Circuit held that the the ‘keywords,’ or search terms, they enter.”23 sites whose only purpose is to provide links defendant’s use was likely to result in initial The leading search engines scan the domain to one another. The latter technique is effec- interest confusion. Web surfers looking for the names and content of millions of Web sites, tive because search engines often assume that plaintiff’s MovieBuff products may be led seeking to provide search results ranked in sites to which many other sites link must be by a search engine to the defendant’s Web site descending order of their relevance to the popular, meriting a high page ranking.26 and might decide that the information pro- user’s search terms. The contents that are Thus, a blog seeking to attract Internet vided at the defendant’s Web site was suffi- scanned include text that appears on the site, users searching for the skateboarding com- cient. “Although there is no source confusion visible to all, as well as metatags—hidden pany may populate its site (and its metatags) in the sense that consumers know they are computer code that, in theory, describes the with repeated references not only to skate- patronizing [the defendant] rather than [the Web site or relates to its contents.24 A search boarding but to the company itself and gen- plaintiff], there is nevertheless initial inter- engine operating properly will deliver to a user erous helpings of text from the company’s site. est confusion in the sense that, by a list of links. The higher a Web site is ranked Search engine users searching for the company using…‘MovieBuff’ to divert people looking on the list, the more traffic the Web site will may find the blog ranked above the compa- for ‘MovieBuff’ to its web site, [the defen- receive. While high page rankings presumably ny’s own site and gravitate there. If the users dant] improperly benefits from the goodwill result from heavy traffic to a site, it is equally find their way back to the company’s site by that Brookfield developed in its mark.”30 true that high page rankings also generate a clicking on one of the company’s ads, the Once again, however, the fair use defense lot of traffic, which can, in turn, lead to sig- company will get charged for the privilege. may provide a blog with room to argue that nificant revenue for a site populated with Many courts take a dim view of these its use of a company’s name was for the pur- contextual ads.25 forms of search engine optimization, brand- pose of engaging in legitimate criticism or These potential riches make search engines ing them as trademark infringement27 and comparative advertising.31 Savvy blogs may obvious targets for manipulation. Experts in techniques leading to “initial interest confu- cloak their metatags in the language of fair search engine optimization have developed sion.”28 For example, in Brookfield Commu- use—such as presenting their sites as com- tactics to raise a Web site’s page ranking in the nications, Inc. v. West Coast Entertainment mentaries on the companies whose content

Los Angeles Lawyer June 2007 35 they appropriate—and by doing so may try may also use a domain name (or multiple Clients plagued by a splog (or by any to manufacture a First Amendment defense ones) designed solely to trick search engines competitive Web site that uses underhanded where none properly applies. Meanwhile, into assigning them high page rankings. A search optimization techniques to siphon the the search engines cannot discern the differ- very long domain name consisting of a lot of clients’ Web traffic) may find that when their ence between copyright or trademark infringe- likely search terms separated by dashes is a name is typed into a search engine, the splog ment and protected commentary or com- good clue that the site in question is a splog.34 pops up on the very first page of the search parative advertising. Of course, if disclaimers The content of a splog is meaningless, results, sometimes even above the clients’ are pretextual, courts can disregard them.32 but the splogger does not actually expect own Web site. Every potential customer that But clients may be reluctant to litigate what anyone to read it. The text is there only to is deceived into visiting the splog instead of appear to be close calls, especially when they attain high page rankings on search engines the clients’ site may be diverted to a com- invariably will be characterized as trying to and thereby draw in unsuspecting consumers, petitor whose contextual advertisements stifle free speech. who will then be induced to click on the appear on the splog or may only get to the seemingly endless supply of links the splog clients’ site after the clients are forced to pay Going after Splogs provides. Indeed, these sites are also referred the splog for the referral. Either way, the Nonetheless, clients should have no such to as link farms. Each successive click on clients have been wronged. reluctance in pursuing a splog. A splog is these links—which are often misleadingly For now, splogs generally are only steal- strictly in the business of copyright and trade- titled—will further raise the splog’s page ing text, not images or videos. But in the mark infringement. It uses all the tricks that ranking while dragging the baffled consumer future, as search engines develop technologies blogs use to generate traffic and make money into a tangled web of interconnected sister to locate and index visual content, splogs while dispensing with the burden of provid- sites from which there is no escape short of will no doubt find it beneficial to purloin ing any sort of fresh, useful content. Indeed, closing the browser. Eventually, the consumer those as well in order to increase their page a splog is not really a blog at all. It is, rather, will likely click on a real advertiser-supported rankings. a form of Internet spam that mimics the look link, generating revenue for the splog. Splogs are a growing threat. One source of a blog by lifting chunks of text from other Consumers who are provoked to run this reports that over half of all active English-lan- sites and pasting them together, often with the gauntlet may be momentarily puzzled. They guage blogs are, in fact, splogs.35 To date, aid of automated software and usually result- may even, eventually, reach what they perceive while reported litigation against blogs is rare, ing in haphazard, nonsensical prose. Like a to be an appropriate destination—albeit not reported litigation against splogs is nonexis- real blog, the splog will surround this text the one they originally sought, and only after tent. But as the stakes get higher and the with links to sister sites to gain higher page inadvertently boosting the splog’s page rank- number of splogs continues to increase, liti- rankings on search engines as well as con- ing and probably putting a little more money gation against them is inevitable. Depending textual ads to earn money from clicks.33 It in the splog operator’s pocket. on the precise nature of the splog in question, copyright, trademark, or unfair competition law may provide an effective legal remedy, but bringing a splog to justice undoubtedly will present different challenges than mounting an Hon. Lawrence W. Crispo offensive against a traditional blog that has (Ret.) crossed the line. Other forms of Internet traffic usurpers, such as traditional blogs or cybersquatters, sometimes attempt to disguise their illicit motives by posing as a fan site or information location tool, or by providing a modicum of Mediator Arbitrator commentary, criticism, or other marginally relevant information. In contrast, splogs make no pretense of being forums for First Amendment activity. Once judges understand the nature of a splog—and this is not necessarily an easy concept to convey—all claims of fair use should fail. Determining where a splog originates, however, is likely to be difficult. Splogs, more so than legitimate blogs, Referee may take pains to disguise their location and the identity of their owners, thereby frustrating enforcement efforts for all but the most sophisticated and determined clients. Seeking the assistance of the leading search engines may offer a remedy, but they may have conflicting motives, including benefiting 213-926-6665 from the placement of contextual ads. While search engines have competitive reasons to www.judgecrispo.com want their search results to be as accurate and helpful as possible—a goal with which splogs plainly interfere—if they are also in the business of placing contextual ads, they earn

36 Los Angeles Lawyer June 2007 money every time a consumer is diverted to a splog and clicks on the ads found there. A search engine that does nothing but direct consumers to the Web site for which they Anita Rae Shapiro are searching may be performing a public SUPERIOR COURT COMMISSIONER, RET. service, but it is not earning any money. Ultimately, the same courts who have PRIVATE DISPUTE RESOLUTION lauded the Internet in general, and blogs in particular, as a new public square will be PROBATE, CIVIL, FAMILY LAW required to intervene. And they will be forced PROBATE EXPERT WITNESS to recognize that many contemporary blogs, TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 and all splogs, are not pillars of free speech E-MAIL: [email protected] but business enterprises dependent on http://adr-shapiro.com infringement for their survival and success. ■

1 McCabe v. Basham, 450 F. Supp. 2d 916, 925 n.4 (N.D. Iowa 2006) (quoting MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2005)). 2 In re Stevens, 119 Cal. App. 4th 1228, 1236 n.3 (2004) (quoting JENSEN, NETLINGO: THE INTERNET DICTIONARY (1995-2004)). 3 Id. at 1236 (quoting Vo v. City of Garden Grove, 115 Cal. App. 4th 425, 453 (2004)). 4 Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). 5 Barrett v. Rosenthal, 40 Cal. 4th 33, 40 (2006). The decision relied on an expansive interpretation of the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230(c)(1), equating individuals who repost false statements with passive “service providers” such as AOL, as well as the policy argument that “subjecting Internet service providers and users to defamation liability would tend to chill online speech.” Id. at 56. The Court did note, “At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source.” But “[b]ecause Rosenthal made no changes in the article she republished on the newsgroups, we need not consider when that line is crossed.” Id. at 60 n.19. 6 O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1456-79 (2006). 7 Indeed, the O’Grady court “avoided the term ‘blog’ here because of its rapidly evolving and currently amorphous meaning….It is at least arguable that [the defendants], by virtue of their multiple staff members and other factors, are less properly considered blogs than they are ‘e-magazines,’ ‘ezines,’ or ‘webzines.’” Id. at 1463 n.21. 8 Fair use is an affirmative defense that considers four nonexclusive factors: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the use, and 4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. §107. See, e.g., Salinger v. Random House, Inc., 811 F. 2d 90, 99 (2d Cir. 1987) THAT’S WHAT WE DO, EVERY DAY.® With Special Counsel, (not fair use to excerpt author’s unpublished letters in your search is over — that's because we are the leading provider the defendant’s book if the excerpts “are at least an (213) 620-6620 important ingredient of the book” and “make the book of legal staffing services nationwide. Whether you need attorneys, worth reading”); see also Twin Peaks Prods., Inc. v. paralegals, or other legal staffing support, we can provide the most (800) 737-3436 Publications Int’l, Ltd., 996 F. 2d 1366 (2d Cir. 1993). qualified professionals — from general workload management specialcounsel.com 9 See New Era Publ’ns Int’l, ApS v. Carol Publ’ns Group, 904 F. 2d 152 (2d Cir. 1990) (use of quotations and litigation support to project management for e-discovery from L. Ron Hubbard’s writings for purpose of criti- and document review projects. And with specialized services like cizing Hubbard was fair use); Bill Graham Archives v. medical document review, deposition digesting, and court reporting, Dorling Kindersley Ltd., 448 F. 3d 605 (2d Cir. 2006) all of your legal needs are just a phone call away. (small reproductions of rock band’s posters in book about band was fair use). 10 Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734, 748-49 (E.D. Mich. 2003); see also Hard Rock Café Int’l (USA) Inc. v. Morton, 1999 WL 717995, at *25 (S.D. N.Y. Nov. 19, 2003) (Through framing, two Web sites are “combined together into a ©2007 Special Counsel, Inc. All rights reserved. A member of the MPS Group single visual presentation.”).

Los Angeles Lawyer June 2007 37 11 Kelly v. Arriba Soft Corp., 280 F. 3d 934 (9th Cir. 2002). 12 Id. at 947. 13 Kelly v. Arriba Soft Corp., 336 F. 3d 811, 822 (9th Cir. 2003) (holding that district court should not have reached the issue because “the parties did not move for summary judgment as to copyright infringement of the full-size images” and “Arriba had no opportunity to contest the prima facie case for infringement as to the full- size images,” and remanding for further proceedings). 14 Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006). 15 Id. at 843. The court left open the possibility that the framing Web site could be liable for contributory or vi- carious infringement. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004 (9th Cir. 2001). However, under the court’s logic, these theories (which require a direct infringement by a third party) would not be viable against a blog that framed legitimate copies of images or video from the plaintiff’s own Web site. 16 Live Nation Motor Sports, Inc. v. Davis, 2006 WL 3616983 (N.D. Tex. Dec. 12, 2006). 17 Id. at *3. 18 Id. at *4. See also Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1292- 95 (D. Utah 1999) (Web site that linked to infringing copies of plaintiff’s work on other sites could be liable for contributory infringement.). 19 Hard Rock Café Int’l (USA) Inc. v. Morton, 1999 WL 717995 (S.D. N.Y. Nov. 19, 2003). 20 Id. at *25 & n.16. Cf. Wells Fargo & Co. v. WhenU .com, Inc., 293 F. Supp. 2d 734, 761 (E.D. Mich. 2003) (Pop-up ads that “partially overlap plaintiffs’ sites on the computer screen” do not infringe the plain- (949) 388-0524 tiff’s marks because “it seems apparent to the user that what is appearing on his or her screen are two dis- tinct sources of material.”). 21 Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 834 & n.7 (C.D. Cal. 2006). 22 Charles C. Mann, Spam + Blogs = Trouble, WIRED MAGAZINE, Sept. 2006, at 106 [hereinafter Mann]. 23 Google Inc. v. American Blind & Wallpaper Factory, Inc., 74 U.S.P.Q. 2d 1385, 1386 (N.D. Cal. Mar. 30, 2005). 24 Brookfield Communications, Inc. v. West Coast Entm’t Corp., 174 F. 3d 1036, 1045 (9th Cir. 1999). 25 Mann, supra note 22. 26 Id. at 106-08. 27 If copyrighted text is used as a search engine optimization technique, a copyright infringement claim would be an evident remedy as well. 28 See, e.g., Brookﬁeld, 174 F. 3d at 1062-66; Horphag Research Ltd. v. Pellegrini, 337 F. 3d 1036, 1041 (9th Cir. 2003); TData, Inc. v. Aircraft Technical Publishers, 411 F. Supp. 2d 901, 904-12 (S.D. Ohio 2006) (conduct shows “nefarious” intent); see also Playboy Enters., Inc. v. Netscape Communications Corp., 354 F. 3d 1020 (9th Cir. 2004) (use of competitor’s trademark to trigger paid advertisements on search engine constituted trademark infringement). 29 Brookﬁeld, 174 F. 3d 1036. 30 Id. at 1062. 31 15 U.S.C. §1115(b)(4); Brookfield, 174 F. 3d at 1066; Faegre & Benson, LLP v. Purdy, 367 F. Supp. 2d 1238, 1246-47 (D. Minn. 2005). 32 Horphag, 337 F. 3d at 1041 (no fair use defense where the defendant’s references to the plaintiff’s mark “spawn confusion as to sponsorship and attempt to appropriate the cachet of the trademark”); Faegre & Benson, 367 F. Supp. 2d at 1247 (“[The defendant’s] wholesale copying of some of [the plaintiff’s] descrip- tion tags indicates an intent to mislead the internet user rather than to merely categorize critical web pages.”). 33 Mann, supra note 22. 34 Id. at 112. 35 Id. at 106.

38 Los Angeles Lawyer June 2007 2007 to

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Nationally ranked for “Highest Pro- 261 South Wetherly Drive, Beverly Hills, CA 90211, fessional and Ethical Standard.” (310) 550-8214, fax (310) 274-7384, e-mail: hkaatty ing real estate, corporate/partnership disputes, insurance litigation, professional liability/legal ethics @earthlink.net. Web site: www.amadolaw.com. CRIMINAL LAW Contact Honey Kessler Amado. Ms. Amado (AV- and bankruptcy litigation. rated) is a Certified Appellate Law Specialist (Cali- PAUL L. GABBERT BUSINESS LITIGATION AND TRIAL EXPERTISE fornia State Bar Board of Legal Specialization). On 2115 Main Street, Santa Monica, CA 90405, (310) the trial level, she joins the litigation team to assist KNOTT & GLAZIER LLP 399-3259, fax (310) 392-9029, e-mail: PLGabbert in identifying issues, creating a sufficient record for 601 South Figueroa Street, Suite 4200, Los Ange- @aol.com. Contact Paul L. Gabbert. Specializes in appeal, or drafting or helping with post-judgment les, CA 90017, (213) 312-9200, fax (213) 312-9201, asset seizure and forfeiture defense. National prac-

Los Angeles Lawyer June 2007 39 tice. State and federal, trial and appellate, and criminal defense. Asset seizure and forfeiture de- Elder Law & Nursing Home fense. Jeopardy and termination tax defense. Thirty years of experience. Eighteen published opinions. Abuse & Neglect Expert witness. Consultation. See display ad on page 42. Law Offices of Steven Peck is seeking association or referrals for: 1) Nursing Home Abuse & Neglect (Dehydration, Bedsores, Falls, Death) LAW OFFICES OF ROBERT A. SCHWARTZ 2) Financial Abuse (Real Estate, Theft, Undue Influence) 11835 West Olympic Boulevard, Suite 1235 East, 3) Trust & Probate Litigation (Will Contests, Trusts, Beneficiaries) Los Angeles, CA 90064, (310) 312-8052, fax (310) 4) Catastrophic Injury (Brain, Spinal Cord, Aviation, Auto, etc.) 445-3574, e-mail: [email protected]. Web site: www.crimlawspecialist.com. Contact Robert A. 26 years experience Schwartz. The 2007 recipient of the Jerry Geisler Award as trial attorney of the year by the Los Ange- TOLL FREE 866.999.9085 LOCAL 818.908.0509 les Criminal Courts Bar Association. Certified by the www.californiaeldercarelaw.com • www.premierlegal.org • [email protected] California State Bar as a specialist in criminal law. WE PAY REFERRAL FEES PURSUANT TO THE RULES OF THE STATE BAR OF CALIFORNIA Criminal defense attorney for 30 years with wide experience in handling cases such as murder, drug offenses, white collar crimes, sex crimes, embezzlement, domestic violence, drunk driving, and all three strikes cases.

CRIMINAL DEFENSE LAW

HUTTON & WILSON IMMIGRATION LAW 1055 East Colorado Boulevard, Suite 310, Pasadena, CA 91106, (626) 397-9700, fax (626) 397-9707, e-mail: [email protected]. Web site: CERTIFIED SPECIALIST www.hutton-wilson.com. Contact Robert J. Wilson. Hutton & Wilson specialize in driving under the influence, vehicular manslaughter, DUI murder and shaken baby defense. Additionally, we represent drivers before the Department of Motor Vehicles re- ■ EB-5 INVESTMENT VISA garding driving under the influence, medical and negligent operator suspensions/revocation. ■ EB-2 PERM LAW OFFICE OF JENNIFER L. KELLER 18500 Von Karman Avenue, Suite 560, Irvine, CA ■ LABOR CERTIFICATIONS 92612, (949) 476-8700, fax (949) 476-0900, e-mail: [email protected]. Contact Danielle Frederick. ■ E1/2 VISAS Sophisticated criminal defense, state and federal, adult and juvenile. UC Berkeley (A.B. 1975), US ■ O-1 EXTRAORDINARY ABILITY ALIENS Hastings (JD 1978). Former President, Orange County Bar Association. Listed in The Best Lawyers ■ L1 VISA/H-1B in America; Los Angeles Magazine, Southern Cali- fornia Superlawyers (Criminal Defense, Top 50 ■ RELIGIOUS VISAS Women, Top 50 Orange County). OC Trial Lawyers’ Criminal Defense Lawyer of the Year. Certified Spe- ■ MARRIAGE & FAMILY CASES cialist, Criminal Law, California State Bar Board of Legal Specialization. High to low profile, murder to ■ BATTERED SPOUSE CASES misdemeanors, 150+ jury trials. LAW OFFICES OF LAWRENCE WOLF ■ DEPORTATION DEFENSE 10390 Santa Monica Boulevard, Suite 300, Los An- geles, CA 90025, (310) 277-1707, fax (310) 277- ■ CRIMINAL DEPORTATION 1500, e-mail: [email protected]. Web site: www.youareinnocent.com. Contact Lawrence Wolf. By dedicating all resources and energy to getting the best result for our clients, combined with our firm’s 30 years of experience, we are prepared to handle the most serious offenses with confi- VICTORIA J. SUH, ESQ. dence. We defend those that have been accused, or are under investigation for involvement in today’s CERTIFIED SPECIALIST IMMIGRATION LAW complex crimes. Our experience includes cases STATE BAR OF CALIFORNIA such as embezzlement, child molestation, fraud, BOARD OF LEGAL SPECIALIZATION rape, theft, murder, drugs, domestic violence, sex crimes, weapons, drunk driving, and many others. TSOI AND ASSOCIATES, LAWYERS LAW OFFICES OF GARRETT J. ZELEN 12400 Wilshire Boulevard, Suite 400, Los Angeles, TEL: 213-387-2888 CA 90025, (310) 820-0077, fax (310) 820-1205, e-mail: [email protected]. Contact Garrett J. Zelen. 3580 WILSHIRE BOULEVARD, SUITE 720, LOS ANGELES CA 90010 Criminal trial (state and federal). Criminal appellate and writ law. White collar crimes, juvenile delin- quency, and post-conviction relief.

40 Los Angeles Lawyer June 2007 DMV HEARINGS – MEDICAL & SKILL EMPLOYEES WORKERS COMPENSATION BENEFITS Are strong personalities, LAW OFFICES OF ROCK O. KENDALL personal dynamics, 28202 Cabot Road, Suite 300, Crown Cabot Finan- GOODCHILD AND DUFFY PLC cial Center, Laguna Niguel, CA 92677-1251, (949) 16133 Ventura Boulevard, Suite 1250, Encino, CA or emotions frustrating 388-0524, fax (949) 388-0564, e-mail: rockkendall 91346, (818) 380-1600, fax (818) 380-1616. Web settlement? @msn.com. Web site: www.dmv-law.com. Contact site: www.jobinjuryhelp.com. Contact Martha Rock Kendall. DMV hearings for medical and skill Castillo. We handle workers’ compensation cases, issues exclusively. I will personally take your client social security disability and personal injury. To re- to the DMV Driver Safety Office. I have successfully ferring attorneys we pay 20% of the fees regarding served clients throughout California. See display ad regular issues. Referrals are handled in strict accor- on page 38. dance with the State Bar Rules. Experienced Mediator DUI EMPLOYMENT LAW with Master’s Degree in LAW OFFICES OF LAWRENCE WOLF EMPLOYMENT TRIAL ATTORNEYS Clinical Psychology 10390 Santa Monica Boulevard, Suite 300, Los An- 12400 Wilshire Boulevard, Suite 810, Los Angeles, geles, CA 90025, (310) 277-1707, fax (310) 277- CA 90025, (310) 826-6300, fax (310) 820-1258, 35 year AV litigator and mediator 1500, e-mail: [email protected]. Web site: e-mail: [email protected]. Web site: www. www.youareinnocent.com. Contact Lawrence employmentattorneyservices.com. Contact Rod- Wolf. With over 30 years of experience, Lawrence ney Mesriani, Esq. Wrongful termination, age dis- • Business Wolf is a recognized expert in drunk driving, DUI, crimination, race discrimination, disability discrimi- • Real Property drug possession, and addiction-related matters. nation, pregnancy discrimination, sex discrimina- • Partnership Our firm has rightfully earned the respect of judges, tion, sexual harassment, violation of whistle blowing prosecutors, and police officers as aggressive at- laws, employment manual preparation, family leave • Shareholders torneys who are not afraid to challenge them on act, medical leave act, labor law violations and sev- • Employment tough cases. We have established long-term rela- erance package agreement. See display ad on • Personal Injury tionships with judges and district attorneys through- page 6. out Los Angeles, Orange, Sacramento, and Ventura Counties. ENTITY FORMATION & MAINTENANCE RICHARD C. 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Peter firm known for getting great results. We have the entity maintenance, including corporate minutes, Rausch, Jr., John A. Schlaff, extensive mediation, arbitration, and trial experi- LLP state filings, and online access to entity documents. and Peter K. Mair are pleased to ence necessary to win each and every case. We See display ad on page 45. announce the formation of a new pride ourselves on providing each of our clients law firm partnership: with superior client service. Building a solid attor- ESTATE PLANNING & TRUST AND ESTATE Rummonds, Rausch, Schlaff, ney-client relationship with our clients’—based on ADMINISTRATION trust, compassion, confidentiality, personalized at- & Mair LLP. mair MARTIN NEELY ASSOCIATES tention, effective communication, expediency, ac- With 100 years of combined cessibility, action, service, and results is very im- Personal Family Lawyers, Trusts: Estates: Families |& portant to us. We also happen to be aggressive 417 Beryl Street, Redondo Beach, CA 90277, legal experience, the Firm is and tough negotiators and litigators when it comes (310) 697-0411, fax (310) 531-7395, e-mail: alexis accepting referrals of complex to standing up for our clients’ rights, and we will @martinneely.com. Web site: www.martinneely business litigation cases with do battle in the courtroom for them if necessary. .com. Contact Alexis M. Neely. Alexis Martin an emphasis on Plaintiff’s Our successful track record speaks for itself. See Neely founded the law firm of Martin Neely & Asso- display ad on page 40. ciates in August 2003 so she could realize her Professional Liability Claims. dream of making a difference in the lives of the schlaff

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LEGAL MALPRACTICE The Los Angeles Office of the Firm

LAW OFFICES OF CHRISTOPHER ROLIN 5707 Corsa Avenue, Suite 106, Westlake Village, CA 91362, (818) 707-7065, fax (818) 735-9992, e-mail: [email protected]. Web site: www .chrisrolin.com. Contact Christopher Rolin. 601 S. Figueroa Street 201 Spear Street Christopher Rolin is a highly effective trial attorney Suite 4200 Suite 1520 with over 40 years of trial activity in civil litigation. Los Angeles, CA 90017 San Francisco, CA 94105 His area of emphasis is attorney malpractice, fo- Tel (213) 312-9200 Tel (415) 356-1100 cusing on the applicable community standard of care for practicing attorneys in the litigation areas. Fax (213) 312-9201 Fax (415) 356-1105 His trial experience has resulted in numerous assignments as an expert witness on trial and standards of care issues. He has been retained as an expert by both plaintiffs and defendants in legal www.knottglazier.com malpractice cases. He has spoken before numerous professional groups concerning trial practice issues.

Los Angeles Lawyer June 2007 43 LEGAL MALPRACTICE/COMPLEX BUSINESS LAW OFFICES OF CHARLES PEREYRA-SUAREZ perience, and is part of the L.A.S.C. mediation LITIGATION 445 South Figueroa Street, Suite 3200, Los Ange- panel, L.A.C.B. arbitration panel, and Second Dis- les, CA 90071, (213) 623-5923, fax (213) 623-1890, trict Court of Appeal mediation panel. Reasonable RUMMONDS, RAUSCH, SCHLAFF & MAIR LLP e-mail: cpereyra@cpslawfirm.com. Web site: www rates and downtown facilities available. See dis- 311 Bonita Drive, Aptos, CA 95003, (831) 688- .cpslawfirm.com. Contact Charles Pereyra- play ad on page 41. 2911, fax (831) 662-3407, e-mail: APR@malpraclaw Suarez. Charles Pereyra-Suarez has handled a .com. Web site: www.malpraclaw.com. Contact A. broad range of civil and criminal matters during PERSONAL INJURY Peter Rausch, Jr. RRS&M is a boutique law firm three decades of practice. Mr. Pereyra-Suarez’s PERSONAL INJURY LAW GROUP representing clients from its main office in Aptos, experience includes complex business litigation, 12400 Wilshire Boulevard, Suite 810, Los Angeles, California and satellite offices from San Diego to white-collar criminal defense, whistle-blower cases, CA 90025, (877) 999-5529, fax (310) 820-1258, Seattle. RRS&M provides representation for a international, government contracts, healthcare, en- e-mail: [email protected]. Web site: www broad spectrum of disputes ranging from complex vironmental, antitrust, civil rights and First Amend- .personalinjurylawyerinc.com. Contact Sheila business litigation to catastrophic personal injury, ment representation. He is active as a mediator and Rivera. 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Los Angeles Lawyer June 2007 45 computer counselor BY RAMANA VENKATA AND MICHAEL A. GEIBELSON

Overcoming E-Discovery Challenges with New Technologies

ELECTRONIC DISCOVERY has entered the legal mainstream. E-mail and documents were not ordered in any particular way to facilitate electronic documents now dominate business communication, and the review. volume of data continues to increase at extraordinary rates. The recent revisions to the Federal Rules of Civil Procedure (FRCP) rec- Computerized Document Grouping ognize the increasing centrality of electronically stored information New technologies conceptually organize the document collection for litigation and regulatory investigations. As a result, counsel face automatically, based on an analysis of document content independent mounting pressure to control the cost of e-discovery, meet court- of user-selected key words. The software analyzes the combinations ordered time lines, and ensure that personnel with the necessary of words and terms in each document and then compares each doc- combination of legal and technical knowledge are available to man- ument to every other document in the collection. When thousands or age e-discovery projects. millions of documents are involved, this task simply cannot be per- To meet these challenges, law firms and their clients can take advantage of a new generation of document review applications. These e-discovery solutions provide tools for handling A common misperception of this process is that the documents electronic information across a range of activities, including data collection and restora- tion, forensic data analysis, sophisticated review get moved or altered in some way. In fact, they do not. Concept folders and analysis, and production. How to control e-discovery costs is a major challenge for outside counsel and their clients. contain only electronic links to the documents they contain. The amount of electronic information that needs to be reviewed continues to increase, but the cost of e-discovery can still be managed effectively. Quality formed manually. The results of this comparison are concept folders. control measures, document organization, and batch tagging can These virtual folders catalog and sort documents based upon the rela- significantly lower the cost of e-discovery and help satisfy client tionships among them. The folders are then arranged into a hierar- demands for finite, predictable e-discovery costs. Predictability can chical table of contents that can be further sorted and reviewed. be achieved by taking advantage of new technologies that help attor- A common misperception of this process is that the documents neys organize the data collected during discovery according to con- get moved or altered in some way. In fact, they do not. Concept fold- cepts and issues. ers contain only electronic links to the documents they contain. As The impact of these processing and review technologies on elec- a complement to concept folders, which are solely based on the con- tronic discovery is best understood in a brief historical context. tent of the documents, attorneys can create smart issue folders, which Originally, but in many cases to this day, documents were reviewed are based on custodians, date ranges, key words, or more advanced in hard copy only. In some situations, however, printing everything Boolean criteria. These folders capture documents that are of inter- and reviewing it from the first box through the last, called linear doc- est for reasons not related to their content. ument review, is likely unworkable, not to mention incredibly expen- Concept folders and smart issue folders facilitate the identification sive and time-consuming. In a matter involving multiple reviewers, of relevant and irrelevant documents before human review. Spam, it can also be highly inconsistent and inaccurate. interoffice party memoranda, IT-related e-mail, and other less rele- The first e-discovery technology introduced in the 1980s involved vant documents are automatically segregated into easily identifiable scanning hard copy documents and displaying them electronically as folders. Attorneys can then quickly review these documents, taking images that could be transmitted and stored electronically. Electronic advantage of batch tagging operations, and tag documents that are display, however, did not solve the problems with hard copy docu- nonresponsive. ment review; it just substituted one linear medium for another. The processing and review steps must maintain high levels of Optical character recognition software emerged next, which is able accuracy. Correcting a mistake in processing or review can be very to extract the text of documents so they could be indexed and expensive. Fortunately, studies and actual casework have shown that searched. With the subsequent addition of database programs, review- the combination of document organization and batch tagging helps ers were able to code (or tag) documents for particular issues. attorneys conduct high-productivity reviews and minimize errors. Reviewers could search for and review documents (both those originally in hard copy as well as the native electronic documents and e- Ramana Venkata is CEO of Stratify, Inc., and has consulted with large and small mail) for phrases such as “statute of limitation” and tag them appro- firms on e-discovery strategies. Michael Geibelson is a partner with Robins, priately. The original documents remained untouched. However, the Kaplan, Miller & Ciresi LLP in Los Angeles.

46 Los Angeles Lawyer June 2007 How to meet court-ordered deadlines is the second e-discovery challenge facing outside counsel. The revised FRCP has expanded the role of electronic information in discovery and increased attorney responsibility when dealing with electronic information systems. However, the scheduling decisions of courts do not necessarily take into account the time needed to process, review, and produce large volumes of electronic data. This is another area in which technology- assisted review can help attorneys take control of the discovery process. Manual and search-based systems involve linear document review in which reviewers encounter documents on different topics one after another. This is cognitively inefficient, because to make sense of each document and assess it correctly, reviewers must constantly read- just their conceptual frame of reference. This cognitive inefficiency is addressed by organ- izing related documents together into appropriate concept folders, which enables reviewers to maintain their frame of reference while reviewing entire groups of documents. This enhanced cognitive focus results in more efficient review as well as more accurate tagging. Second, linear document reviews are more susceptible to inadvertent production and potential waiver of privilege due to the inconsistent tagging of near-duplicate documents (such as contract versions in Word, ﬁnancial analyses in Excel spreadsheets, and strings of e-mail). While document tagging depends on multiple factors, including reviewer expertise and the speed and context of the review, the possibility that two or more reviewers making different judgments regarding near-duplicate documents increases if they review near- duplicates separately. Advanced e-discovery solutions identify near-duplicate documents and group them for review. Whenever a near-duplicate is encountered, the reviewer can directly access all related near-duplicate documents. This enables a single reviewer to review and com- pare all the instances and versions of a document and tag them consistently. The capa- bility of reviewing near-duplicates together accelerates the review, and even more important, it minimizes the danger of inadvertent production. The combination of concept organization and near-duplicate detection in an easy-to-use review application enables law firms to achieve a major breakthrough in productivity. Although it may seem incredible, reviewers taking advantage of these new capabilities have achieved average review rates of 300 to 500 documents per hour, with sustained bursts of 1,000 documents per hour. Law ﬁrms have documented review rates as high as 15,000 documents per day per reviewer. These results represent a major improvement

Los Angeles Lawyer June 2007 47 over traditional in-house and outsourced search-based systems that historically deliver review rates ranging from 30 to 60 documents per hour. Finally, efficiently managing e-discovery matters is the third challenge that law firms must address. In the past, litigation support personnel within firms, or smaller litigation support companies, were sufficiently knowledgeable and had enough capacity to handle most discovery matters. However, the expertise required to manage matters has outpaced their ability to assimilate and master all relevant technologies. And the high growth in e-discovery matters creates severe resource constraints for litigation support personnel or smaller electronic discovery companies. Foreign language e-discovery highlights these challenges. There has been an explosion expert4law–The Legal Marketplace of large-scale matters that include documents not only in English and other Western European languages but also languages such as Chinese, Japanese, Korean, Thai, and Viet- namese. If incorrect software or processing NEED? techniques are used at any stage of the e-discovery process in matters involving these lan- Expert Witnesses ● Investigators ● Legal Consultants guages, severe problems can result. For example, search indices can be created that do not ● ● ● Arbitrators Mediators Private Judges Special correctly identify and retrieve documents for Masters and other legal support service providers searches containing foreign language key words. Few vendors in the e-discovery community have the type of detailed knowledge required to appropriately handle complex foreign languages. Foreign language expertise FIND THEM HERE. across all e-discovery capabilities (data col- Established in 1996, expert4law–The Legal Marketplace is the lection and extraction, foreign language document organization, search, annotation, best on-line directory for finding expert witnesses, legal redaction, and production) is critical for a suc- consultants, litigation support, lawyer-to-lawyer networking, dispute cessful review. The size and sophistication of e-discovery resolution service providers, law office technology, and research matters creates challenges for outside coun- and publishing. sel. When matters involve hundreds of giga- bytes or terabytes of data, the ability to increase the volume and rate of data proc- This comprehensive directory is the one-stop site for your legal essing while supporting dozens or hundreds support needs. Available 24 hours a day! of reviewers becomes critically important. This requires a scalable infrastructure that can handle new matters quickly. Now recognized by the FRCP, electronic information has assumed a central role in discovery. It has also created pressure on outside counsel to control the cost of e-discovery, meet court-ordered deadlines, and manage e-discovery projects. To meet these challenges, law firms and their clients should take advantage of the newest generation of technology-assisted review applications that provide advanced capabilities. Automatic concept organization and near-duplicate detection are two relatively new tools to help attorneys meet the still-growing challenges of www.expert4law.org e-discovery. These capabilities help teams accelerate review while making it more accurate and consistent. ■

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Los Angeles Lawyer June 2007 49 Aon Direct Administrators/LACBA Professional Liability, p. 1, Metrocities Mortgage Inc., p. 8 Tel. 800-634-9177 www.attorneys-advantage.com Tel. 800-464-2484 www.metrociti.com

Arbitration and Mediation Group, p. 4 Clinton E. Miller, JD, p. 43 Tel. 818-790-1851 www.mediationla.com Tel. 408-279-1034 www.millerjd.qpg.com

Lee Jay Berman, p. 16 National Institute for Trial Advocacy, p. 4 Tel. 213-383-0438 www.leejayberman.com Tel. 877-648-2632 www.nita.org

The California Academy of Distinguished Neutrals, p. 26, 27 Noriega Clinics, p. 49 Tel. 310-341-3879 www.CaliforniaNeutrals.org Tel. 323-728-8268

California Western School of Law, p. 22 Charles Pereyra-Suarez, p. 45 Tel. 800-255-4252 www.californiawestern.edu Tel. 213-623-5923 www.cpslawﬁrm.com

California Eminent Domain Law Group, APC, p. 38 REMC Executive Suites, p. 11 Tel. 818-957-0477 www.caledlaw.com Tel. 949-936-2600 www.remcinc.com

Coldwell Banker, p. 38 R. S. Ruggles & Co., Inc., Inside Back Cover Tel. 310-442-1398 www.mickeykessler.com Tel. 800-526-0863 www.rsruggles.com

Commerce Escrow Company, p. 16 Rummonds Rausch Schlaff & Mair LLP, p. 41 Tel. 213-484-0855 www.comescrow.com Tel. 813-688-2911 www.malpraclaw.com

Cook Construction, p. 30 Saltzburg Ray & Bergman, LLP, p. 45 Tel. 818-438-4535 e-mail: [email protected] Tel. 310-481-6700 www.srblaw.com

Creative Dispute Resolution, p. 48 Steven R. Sauer APC, p. 6 Tel. 877-CDRADR (877-237-4237) www.adr-fritz.com Tel. 323-933-6833 e-mail: [email protected]

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G. L. Howard CPA, p. 47 Law Offices of Ronald P. Slates, p. 43 Tel. 562-431-9844 e-mail: [email protected] Tel. 213 624-1515 www.rslateslaw.com

Paul Gabbert, p. 42 Special Counsel, p. 37 Tel. 310-399-3259 e-mail: [email protected] Tel. 323-658-6065 www.specialcounsel.com

Steven L. Gleitman, Esq., p. 6 Steven Peck’s Premier Legal, p. 40 Tel. 310-553-5080 Tel. 866-999-9085 www.premierlegal.org

Greg David Derin, p. 47 Stoneﬁeld Josephson, Inc., p. 2 Tel. 310-552-1062 www.derin.com Tel. 866-225-4511 www.sjaccounting.com The Holmes Law Firm, p. 8 The Suit Closet, p. 31 Tel. 626-432-7222 www.theholmeslawﬁrm.com Tel. 213-747-2829 www.thesuitcloset.com Jack Trimarco & Associates Polygraph, Inc., p. 21 Tenrec, Inc., p. 47 Tel. 310-247-2637 www.jacktrimarco.com Tel. 415-543-6600 x101 e-mail: [email protected] Lawrence W. Crispo, p. 36 Tsoi & Associates/Victoria J. Suh, p. 40 Tel. 213-926-6665 e-mail: [email protected] Tel. 213-387-2888 e-mail: [email protected] Law Offices of Rock O. Kendall, p. 38 UngerLaw, P.C., p. 45 Tel. 949-388-0524 www.dmv-law.com Tel. 310-772-7700 www.ungerlaw.com Jeffrey Kichaven, p. 38 Vision Sciences Research Corporation, p. 30 Tel. 213-996-8465 www.jeffkichaven.com Tel. 925-837-2083 www.contrastsensitivity.net Judge Lawrence Waddington, p. 20 West Group, Back Cover www.arbitrationadr.com Tel. 800-762-5272 www.westgroup.com Lawyers’ Mutual Insurance Co., p. 7 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 11 Tel. 800-252-2045 www.lawyersmutual.com Tel. 818-981-4226 www.wzwlw.com Lexis Publishing, Inside Front Cover, p. 9 Witkin & Eisinger, LLC, p. 20 www.lexis.com Tel. 310-670-1500 MCLE4LAWYERS.COM, p. 21 Wolfsdorf Immigration Law Group, p. 20 Tel. 310-552-4907 www.MCLEforlawyers.com Tel. 310-570-4088 www.wolfsdorf.com Mesriani Law Group, p. 6, 20, 31 Tel. 310-826-6300 e-mail:[email protected]

50 Los Angeles Lawyer June 2007 Estate Planning for the Using the U.S. Central District Web Site International Family ON TUESDAY, JUNE 12, the Litigation Section will host a Breakfast at the Bar ON WEDNESDAY, JUNE 20, the Taxation featuring speaker Sherri R. Carter, district court executive and clerk of court Section’s Estate and Gift and Foreign Tax for the Central District of California. This program will demonstrate how almost every question one might ask about practice in the federal court Committees, together with the Society of can be answered at any time with the click of a mouse. From judges’ Trusts and Estate Practitioners, will present individual requirements and Local Rules to ADR information and pro bono a program featuring speakers Katharine opportunities—it is all available online. Carter will demonstrate to those in Davidson, Lawrence H. Heller, William K. attendance the key areas and information that is available on the California Norman, Jean Tardy-Vallernaud, and Central District Court Web site. The program will take place at the LACBA Barbara Zak on how estate planners can Conference Center, 281 South Figueroa Street, Downtown. Reduced parking is available with validation for $10. On-site registration and breakfast will better advise multinational families on begin at 7 A.M., with the program continuing from 7:30 to 8:30. The cross-border estate planning and taxation registration code number is 009682. The prices below include the meal. issues. This program is structured as a role $15—CLE+PLUS members play in which international estate planners $45—attorneys (over two years in practice) advise a multinational family on cross- $40—support staff and new attorneys (under 2 years) $50—all others border estate planning and taxation issues. $60—at-the-door registrants The program will take place at the Olympic 1 CLE hour Collection, 11301 Olympic Boulevard in Los Angeles. The posted parking rate is $6. On-site Issues Affecting California Employers registration and the meal will begin at 7:30

ON THURSDAY, JUNE 14, the Business and Corporations Law Section, with the A.M., with the program continuing from Labor and Employment Law and Corporate Law Departments Sections, will host 8:30 to 10:30. The registration code a program in which Jeffrey F. Webb will lead a discussion on the key legal issues number is 009707. The prices below affecting employers in California. This program offers attorneys valuable tools for representing smaller or larger, as well as newer or established, businesses. include the meal. The program will take place at the LACBA Conference Center, 281 South Figueroa $25—CLE+PLUS card holders Street, Downtown. Reduced parking is available with validation for $10. On-site $50—International Law, Trust and Estate registration and the meal will begin at 7:15 A.M., with the program continuing Section members from 8 to 9:30. The prices below include the meal. $60—LACBA members $15—CLE+PLUS members $70—all others $70—Business and Corporations Law, Labor and Employment Law, Corporate Law Departments, and Barristers Section members $80—at-the-door registrants $80—LACBA members 2 CLE hours with specialization credit in $90—all others, including at-the-door registrants taxation 1.5 CLE hours

The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/. For a full listing of this month’s Association programs, please consult the County Bar Update.

Los Angeles Lawyer June 2007 51 closing argument BY KEITH PAUL BISHOP

First Thing, Let’s Jail All the Lawyers

A LEGAL PUBLICATION recently published some remarks I had made responsibility often will be to protect and defend a client from ille- that were critical of the Securities and Exchange Commission’s han- gal, unconstitutional, or improper activities on the part of the regu- dling of the stock option “backdating” issue. Seeing these remarks, lator. The gatekeeper paradigm now being popularized by regulators a colleague sent me an e-mail in which he hoped that the SEC would undermines the historic independence of the private bar by subtly shift- not read my remarks and hold them against me. My reaction to this ing its allegiance to the regulator. missive was, “Has it really come to this? Have regulators so coopted Regulators are also using the gatekeeper concept to ratchet up and intimidated the private bar that we are now afraid to speak out?” enforcement pressure on the private bar. Cox emphasized this very Unfortunately, that may well be the case. Most securities lawyers point when he threatened “enforcement actions” against lawyers. The with whom I speak these days are afraid and depressed. There is good threat of civil or criminal enforcement is likely to have the direct effect reason for their mood. In the last several years, the challenges of com- of silencing opposition and criticism in the private bar. It also encour- pliance have increased as the complexity of the law has grown. At the same time, regulators and prosecutors have purported to rede- fine the role of private lawyers. In their view, Federal wire fraud statutes are so broadly worded that they we have changed teams. We are no longer advocates and advisers to our clients. Now, we are our clients’ gatekeepers and the regula- criminalize almost any activity that includes routine legal advice. tors’ partners. Since the enactment of the Sarbanes-Oxley Act in July 2002, securities lawyers have had to contend with a ages lawyers to give the most conservative advice possible. In today’s tsunami of new statutory and regulatory requirements. Last year, for environment, a lawyer who gives advice with which the SEC disagrees example, the SEC adopted regulations governing the disclosure of exec- faces the prospect of a civil enforcement action or worse. utive compensation. The adopting release for these regulations Nearly a half century ago, Harvard Law Professor Henry M. exceeds 400 pages. Recently, I participated in a panel discussion in Hart Jr. wrote, “What sense does it make to insist upon procedural which an SEC attorney attempted to minimize the burden by saying safeguards in criminal prosecutions if anything whatever can be that the “meat” of the release was “only” about 100 pages. This was made a crime in the first place?” Federal wire fraud statutes are so cold consolation, indeed. broadly worded that they criminalize almost any activity that includes While lawyers are facing an increasingly intricate and ever-chang- routine legal advice and advocacy. As a result, virtually any mistake, ing regulatory environment, civil and criminal enforcement author- omission, or misunderstanding on the part of a lawyer could result ities are taking aim directly at lawyers. Now, the prevailing attitude in the prospect of a lengthy federal prison sentence. Lawyers know among regulators is that the lawyers are “gatekeepers” and “watch- this. They are also acutely aware of the rapidly multiplying number dogs” of their clients’ conduct. SEC Chairman Christopher Cox of statutes and rules that they must learn and interpret for their made this quite clear in a recent speech to the Corporate Counsel clients. They know, too, that compliance in most instances requires Institute in which he said, “It’s because the roles of gatekeeper and the application of judgment. In most instances, they are required to watchdog come with a great deal of responsibility that, when pro- advise their clients with incomplete information. As a result, lawyers fessionals—lawyers or accountants—fail to live up to their respon- today understandably fear that the only thing that separates them from sibility, the commission will bring enforcement actions.” an indictment is luck or fate. The notion of lawyers as gatekeepers has a certain facial appeal. In contemporary society the lawyer is not a popular figure. The From a regulator’s perspective, denominating lawyers as gatekeepers hard truth is that many people would not shed a tear if a few lawyers is a way of drafting more professionals to your team. Gatekeepers do went to jail. Nonetheless, the regulatory campaign against lawyers not work for their clients exclusively. Rather, they are partners of the threatens our legal system and ultimately the liberty of everyone. When government. Again, Chairman Cox has no doubts about the new sta- the government has cowed the private bar into submission, who tus of the private bar. In his speech to the Corporate Counsel Institute, will have the skills and training to challenge the regulators? A good he unequivocally asserted, “The SEC views you [lawyers] as impor- recipe for tyranny is to intimidate and coopt private lawyers. In the tant partners in our mission to protect investors,” and “we view former Soviet Union, I doubt that any private citizen had any doubts lawyers as critical partners in our mission.” In claiming that lawyers about the true allegiance of his or her lawyer. Now is the time for us are partners of the SEC, Chairman Cox completely misapprehends to decide for whom we work. ■ the role of private attorneys in our system of justice. As an advocate and adviser, a private lawyer’s obligation is first and foremost to his Keith Paul Bishop is a shareholder at Buchalter Nemer and a former California or her clients. Rather than partnering with a regulator, the lawyer’s commissioner of corporations.

52 Los Angeles Lawyer June 2007

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