Wednesday, July 31, 2013

Where's Waldo? Nevermind, we found him.

Every time you leave your house, you check your pockets to make sure you have the essentials: wallet, keys, and government tracking device, right?  Wait, what was that last one again?  Oh, your cell phone?  Yes, it’s extraordinarily useful in sending tweets to Justin Bieber, posting pictures of your meals on instagram, and stalking exes on facebook, but the U.S. Court of Appeals for the Fifth Circuit recently identified a new use: government tracking.
Police in Texas asked a federal magistrate to force a cell phone company to provide the antenna tower and sector for certain cell phone users who were being investigated.  In layman’s terms—the police wanted the location of the cell phone users.  The federal magistrate decided that the police needed a warrant to get such information.  On appeal, a federal district court judge agreed—if the police wanted the location of the users based on the cell phone company’s records, they needed a warrant supported by probable cause.

On appeal, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, ruled that police do not need a warrant to obtain the location of cell phone users from their cell provider’s records.  The majority held that whenever a cell phone user broadcast information (e.g. sent a text message, made a phone call, or accessed the internet) to a third party (after all—we don’t own our own cell towers), that user lost his expectation of privacy.  In other words—if you want to keep your location private—don’t use a cell phone.

The practical response by most people to this decision will be—“eh, why do I care if the government knows where I am, or where I’ve been?”  For those charged with a crime, however, that information can be very damning.  Evidence of a user’s location can be used to establish an incriminating pattern (e.g. trips to/from a buyer or seller of narcotics), defeat an alibi, or establish proximity of the accused to the scene of the crime.

So next time you’re sending a text message, making a phone call, or updating your facebook status, to tell your friends where you are, just remember—the government already knows.

Monday, July 29, 2013

Maryland bars are not automatically responsible for death caused by a drunk customer.

On July 25, 2013, Maryland's highest court affirmed that a bar has no duty to actively prevent mayhem caused by it's drunk patron who kills or maims with his car. The case is Warr v. JMGM (doing business as "Dogfish Head Alehouse "), and it affirms long standing principles of Maryland law even while bringing tears to the eyes.

Ten year old Jazimen Warr was killed by a drunk driver whose chosen watering hole was the Dogfish Head Alehouse.  Here's her picture, as it appeared on an NBC affiliate's website. Her sister and parents were also injured in the crash.

The driver, Michael Eaton, was driving his Range Rover on a suspended license, and evaded police for 14 hours after leaving the scene of the accident. The manhunt included dogs and a police helicopter. While the police searched, young Jazimen was pronounced dead at the hospital.

The Warr family sued Dogfish Head Alehouse in 2010, knowing that Maryland law was stacked against them despite a case built on the following facts, as alleged in the complaint:

The evening of Aug. 21, 2008, Michael Eaton arrived at the Gaithersburg bar and restaurant, and started a tab. One witness told investigators he stayed for six hours. Sometime after 10 p.m., according to state police records, he paid for 14 bottles of Corona and two "Lemon Drop" shots.
He opened a second tab -- three Coronas and a shot of tequila -- closing it out at 10:55 p.m., according to the police records. He purchased drinks for himself and others, according to police records.
After leaving the bar, records say, Eaton climbed into a Range Rover and headed south on Interstate 270, reaching an estimated speed of 88 to 98 mph. He plowed into the back of the Warr's Jeep, kept going, left his vehicle, fled on foot, made his way to a hotel and turned himself in the next afternoon.
Bar employees later testified that Mr. Eaton was a habitual drunkard, but that they shut him off by 11:00 P.M. and offered to call him a cab.  He refused and somehow stumbled to his Range Rover.

The Circuit Court for Montgomery County granted a motion for summary judgment made before trial by Dogfish Head Alehouse. This is a motion that is filed after all the facts are discovered, and it requests that the court consider the current state of Maryland law to determine whether the Plaintiff has any chance at winning at trial. The court applies the existing law to the undisputed material facts, and makes a decision- The Plaintiff either has a shot at trial, or the Plaintiff has absolutely no shot to prevail at trial. 

Maryland law has long prevented persons injured by bar patrons from suing the establishment where they got drunk. Maryland has long resisted the national trend to hold sellers of alcohol responsible for the death and destruction caused by drunk patrons. The Legislature has elected not to create statutes that impose civil liability for bars because of the acts of their drunk customers, and the courts have refused to impose duties on their own. The law since at least 1951 has been this simple declaration, found in a Court of Appeals decision:
Simply put, we just do not recognize a duty; instead we adhere to the principle that "[h]uman beings, drunk or sober, are responsible for their own torts.
The Warr trial judge was bound by this law. He was duty bound to apply this declaration of law to the facts of the Warr case, regardless of the horrific death visited on Jazimen by Mr. Eaton. The trial court granted summary judgment in favor of Mr. Eaton because his victims had no shot at trial. 

The Court of Appeals pulled the case up from the intermediate appellate court to decide, as a broad matter of Maryland public policy, whether this principle of law would be declared dead letter in Maryland, or whether it would continue to insulate alcohol sellers from civil judgments where even states heavily favoring individual rights, such as Texas, Arizona and Pennsylvania, have adopted some form of "dram shop" liability.

The law will remain unchanged in Maryland for the foreseeable future. The Court of Appeals found no good reason to change the law, on it's own, while inviting the legislature to re-visit the issue. The court noted that while the politicians have elected to impose criminal penalties on bars for serving under aged or intoxicated customers, they have not taken any action to impose civil penalties.

But consider this: Beer, wine and liquor are taxed at rates ranging from nine cents to $1.50 per gallon.  In 2012, the State of Maryland collected over $31 Million dollars on these three items alone. It is all documented in the Alcohol & Tobacco Tax Annual Report. Tax revenue from the sale of alcohol is simply intoxicating to the State's politicians.

This decision does leave open a slight window for judicial change in this law. If a future case involves a bar employee actively promoting the act of driving, perhaps by stuffing the drunk into the driver's seat, the reasoning of this court would impose some liability on the bar employee and perhaps his employer. We will just have to wait and see.

Thursday, July 11, 2013

Don't spoil the evidence by altering or deleting your social media.

Don't delete your Facebook photos if you file a lawsuit related to the content of those pictures. 

A Virginia lawyer just paid off the sanctions imposed on him in 2011 for helping his client "clean up" a Facebook page by deleting 16 pictures showing the client doing stupid things. The Virginia state court imposed over $700,000 in sanctions on the lawyer while awarding several million to his client on the underlying claim (so, the client won, but the lawyer lost most of his fees otherwise earned in the case).

The concept is called "spoliation of evidence." It simply requires that a litigant preserve the status quo, and covers all manner of documents, electronic data and social media.  For example, in a breach of contract case you should not destroy or alter letters, memos or e-mails about the contract.  Even normal archiving and destruction of business information must be frozen during the lawsuit. This is a huge trap for the unwary.  Large entities have "litigation hold" procedures that are followed.  But small and mid-sized companies who are not as litigation saavy often fail to get word out to all employees.

Consider, for a moment, the vast quantity of data on your personal and company Twitter, Facebook, Linkedin, and Tumblr accounts, in addition to personal and business texts, e-mails, phone logs and all their back up files.

Courts deem it very, very unfair to the judicial process when one litigant destroys evidence, and thus alters the evidentiary landscape. It creates a side-show to the main case, and can result in orders limiting issues and damages, in addition to imposition of costly sanctions on the responsible parties and lawyers. 

More importantly, every case requires that we deal with bad evidence, and ill-conceived memos and letters.  Business people do not live to litigate, and behave as normal folks who write angry e-mails and letters that may cut against their legal interests. Experienced civil litigation lawyers know this is common, and we are well equipped to handle the less-than-perfect case. 

Let us litigate the main case for you, not the costly sideshow.

Monday, July 1, 2013

Your Maryland home can still be your smoke filled castle.

June 27, 2013 is the day you came dangerously close to losing the right to smoke in the privacy of your own home.  This little decision almost slipped by me, except that I was finally catching up on a week's worth of professional reading after a very active day in court.

In the case called Schuman v. Greenbelt Homes, Mr. Schuman sued his neighbors and others for nuisance caused by his neighbors act of smoking cigarettes in the privacy of their own home, and on the rear patio behind their home. Mr. Schuman complained that odor and nicotine invaded his space, increased his risks for illness related to second hand smoke, and diminished his property values.  Mr. Schuman sought a court order barring his neighbors from smoking in their own home, or on their own patio.

Don't laugh, Mr. Schuman could have been YOUR neighbor, and he may not have liked your charcoal smoker or the scented oil in your tiki torches.

The homeowner's cooperative to which both parties belonged sealed cracks between the adjoining units, and the smoking neighbors even consented to Mr. Schuman's demands that they cease the lawful activity of smoking cigarettes in their own house.

The smoking only continued on the outdoor patio of the neighbor's unit (a few cigarettes each night).  Mr. Schuman continued to complain that even with his windows closed he could smell cigarettes (contrary to other neighbors testimony that smoke did not penetrated their closed windows).

Mr. Schuman's circuit court lawsuit against his neighbors alleged, among other things, that the lawful activity of smoking on private property (a place where it is not regulated by the government) unreasonably interfered with his use and enjoyment of his property. Trial lasted at least a week, and included medical and air quality expert testimony. Mr. Schuman argued that even one cigarette on the patio was too much, and that he refrained from leaving his house for fear that his neighbor would light up and smoke.

As silly as all this sounds, there is a growing body of case law across the country finding that cigarette odor may be, at times, an unreasonable interference with the property rights of others.  Page 22 of the court opinion collects some of the cases for you. And it is in these obscure decisions where your property rights are eroded, over time.

But to Maryland's credit, smoking on your patio is not yet a nuisance which diminishes the use and enjoyment of an adjoining property. This court noted that such a ruling (on the facts of this case, at least) would effectively outlaw smoking in the privacy of your home, a place that even Maryland's legislature has not yet attempted to reach.

We live in a complex world.  This case preserves some balance between the property rights of adjacent owners.....for now.