Take a look at Steve Matthews' Web Law Predictions for 2010 over at Slaw.
- Garry J. Wise, Toronto
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Law.com reports on a Florida court's ruling that pushes the envelope on the duty to preserve electronic data:
This is a ruling that should raise concern among privacy advocates, given the mixed personal and professional use by many of their mobile devices.Numerous courts have imposed sanctions for failing to preserve e-mails and other electronic documents. But few decisions have addressed the consequences of destroying electronic information stored on portable electronic devices -- such as BlackBerrys and smart phones. This may be starting to change.
Recently, in Southeastern Mechanical Services Inc. v. Brody, No. 8:08-CV-1151, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009), the Middle District of Florida imposed spoliation sanctions for destruction of e-mails, calendar entries and text messages that were stored on portable electronic devices. This court's imposition of sanctions is an important reminder about the consequences of deleting information on such devices.
In particular, the court found it significant that information stored on the BlackBerrys at issue had not been fully synchronized to a corporate server -- and therefore destruction of information contained on the BlackBerrys was improper. Accordingly, both counsel and litigants should be apprised of the scope of the duty to preserve electronic information and should keep in mind that the duty to preserve such information likely extends to portable devices, such as BlackBerrys and smart phones.
On Monday, the Supreme Court agreed to hear a case where it will decide whether employers have the right to monitor text messages sent on company pagers. City of Ontario v. Quon could establish new rules regarding workers rights for privacy on employer-owned electronics.....Transcripts showed that Sgt. Jeff Quon sent his wife, girlfriend and another officer hundreds of personal messages. The 9th Circuit Court of Appeals sided with the Quon and other officers, ruling that they had a “reasonable expectation of privacy" and that the department violated the Fourth Amendment. It also found that the wireless provider violated the Electronic Communications Privacy Act by turning over the transcript. The San Francisco-based court’s decision is the first by a federal appeals court to find that the Constitution protects workers privacy rights when they are using electronic devices that their employers own.The topic has also shown up in New Jersey’s Supreme Court. The state's highest court will decide if a home health care provider has the right to monitor all activity on the company’s technology systems includes one employee’s e-mails with her lawyer. Sent from a personal account on a company-owned laptop, the messages were about a lawsuit she was filing against the employer for sexual harassment and ethnic discrimination. A lower court determined the worker’s employee-client privilege outweighed the company’s policy.
- Garry J. Wise, Toronto
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CBC reports:
Cheques will be phased out in the U.K. by late 2018, the agency that oversees payment systems in the country decided Wednesday.
- Garry J. Wise, Toronto
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Canadian Press reports on procedural changes for Ontario's family law courts that will be announced tomorrow by Attorney-General Chris Bentley:
TORONTO — Ontario will announce changes to the way it deals with family law on Thursday in a bid to make the divorce process faster, cheaper and less combative, The Canadian Press has learned.
Attorney General Chris Bentley is set to unveil several changes that he said address complaints about the expense and length of divorce and custody proceedings, making the process as easy as possible for the families involved.
...Under the changes, people will have more access to legal advice from the outset, as well as to options like mediation, arbitration or collaborative law, which are much less combative than the court process.
That will also free up court time for cases that must be argued through the system, although those will now have less paperwork and fewer steps so that people can get to a judge - and a decision - sooner.
- Garry J. Wise, Toronto
Update: December 17, 2009
The Attorney-General's press release is here, and frankly, is surprisingly thin on the details of this initiative and the changes ahead. The only additional news is that the program will launch in Brampton and Milton courts, initially.
- GJW
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- Garry J. Wise, Toronto
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To our readers, friends, colleagues and family members who are celebrating the Jewish Festival of Lights, Happy Hanukah. Let the holiday season begin.
- Garry J. Wise, Toronto
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Frum Forum's David Frum has a wonderfully incisive analysis of the key arguments in Tuesday's U.S. Supreme Court hearing of Conrad Black's "honest services" appeal.
As we waited for entry, I fell into talk with a group of Black well-wishers who had traveled from Toronto to line up on the courthouse steps before opening hours. Conrad Black’s beautiful daughter Alana tapped me on the shoulder on her way to the family seats for another round of the litigation that has consumed her father’s life. This is not a case of concern only to one man and his family – not only to the many admirers of Conrad Black who think it is long past time that he was returned to home, freedom, and creative work. It’s a case of concern to all Americans who might be caught in the toils of a law that blurs the very concept of what is criminal and what is not.More on the appeal in the post below.
- Garry J. Wise, Toronto
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While his appeal does not directly impact his conviction on obstruction of justice charges, former Canadian magnate Conrad Black appeared to find a highly receptive audience yesterday among U.S. Supreme Court Justices for his argument against the constitutionality of the vague, "honest services" law under which he was convicted in 2007.
A federal law that makes it a crime to deprive the public or one's employer of "honest services" is a favorite of prosecutors on the hunt for corrupt politicians and self-dealing corporate honchos.
More background from Wikipedia:But it found few admirers Tuesday at the Supreme Court.
From one end of the mahogany bench to the other, and across the court's notable ideological divide, justices took turns criticizing the 1988 law that makes it a crime to "deprive another of the intangible right of honest services." The most frequent complaint was that it is so vague that it is impossible for the average person to know what is being made illegal.
To decide the honest-services law, the court has taken three cases, including one from convicted newspaper tycoon Conrad M. Black. He argues that he should not have been convicted without the government proving that his unusual pay arrangement cheated the company he once headed.
Black was convicted in Illinois U.S. District Court on 13 July 2007 and sentenced to serve 78 months in federal prison, pay Hollinger $6.1 million and a fine of $125,000.
Black was found guilty of diverting funds for personal benefit from money due Hollinger International when the company sold certain publishing assets and other irregularities. For example, in 2000, in an illegal and surreptitious arrangement that came to be known as the "Lerner Exchange," Black acquired Chicago's Lerner Newspapers and sold it to Hollinger.[3] He also obstructed justice by taking possession of documents to which he was not entitled.[4]
- Garry J. Wise, Toronto
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When Twitter tanks...
- Garry J. Wise, Toronto
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Perhaps it has something to do with this individual's sociopathic, unyeilding cling to an irrational, murderous ideology that basks in its own delusions of godliness.
Via You Tube:
An interview with a Taliban trained Suicide Bomber With English Subtitles. What are the intentions and what are the motive forces behind the Suicide Bombing & other acts of terrorism? Watch from the mouth of a Taliban suicide bomber himself.
- Garry J. Wise, Toronto
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- Garry J. Wise, Toronto
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The Toronto Star is one of 56 newspapers worldwide that are carrying a common editorial on climate change today, Fourteen days to seal history's judgment on this generation.
Unless we combine to take decisive action, climate change will ravage our planet, and with it our prosperity and security. The dangers have been becoming apparent for a generation. Now the facts have started to speak: 11 of the past 14 years have been the warmest on record, the Arctic ice-cap is melting and last year's inflamed oil and food prices provide a foretaste of future havoc. In scientific journals the question is no longer whether humans are to blame, but how little time we have got left to limit the damage. Yet so far the world's response has been feeble and half-hearted.
Climate change has been caused over centuries, has consequences that will endure for all time and our prospects of taming it will be determined in the next 14 days. We call on the representatives of the 192 countries gathered in Copenhagen not to hesitate, not to fall into dispute, not to blame each other but to seize opportunity from the greatest modern failure of politics. This should not be a fight between the rich world and the poor world, or between east and west. Climate change affects everyone, and must be solved by everyone.
...The politicians in Copenhagen have the power to shape history's judgment on this generation: one that saw a challenge and rose to it, or one so stupid that we saw calamity coming but did nothing to avert it. We implore them to make the right choice.
There is more on Canada's record of broken promises on climate change, here.
And if you're in the mood for a truly thought-provoking read, try To Really Save the Planet, Stop Going Green from Mike Tidwell of the Washington Post
- Garry J. Wise, Toronto
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We looked briefly last month at Canadian courts' mixed reception toward the use of Skype and other new online communications tools to facilitate access visitation by non-custodial parents.
Sec. 609.Leave to Remove Children.
(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.
(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.
The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.
(c) The court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.
"Electronic communications" are specifically adopted as a means of exercising access with a child, and are defined in the statute, as follows:
Sec. 607.Visitation.
(1) "Visitation" means in‑person time spent between a child and the child's parent. In appropriate circumstances, it may include electronic communication under conditions and at times determined by the court.
2) "Electronic communication" means time that a parent spends with his or her child during which the child is not in the parent's actual physical custody, but which is facilitated by the use of communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.
- Garry J. Wise, Toronto
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Via Canadian Press:
Former political star Michael Bryant is back at work, quietly acting as a senior adviser for a top law firm in Toronto.
The former attorney general, who is facing criminal charges stemming from an accident with a cyclist in August, started this week with Ogilvy Renault and is working with the firm's energy law team.
"Our view is Michael has the depth, has the expertise that he understands issues, which are particular to the energy sector of infrastructure spending and we believe he can bring a lot of value," said John West, a senior partner at the firm.
..."We feel very strongly that Michael is entitled to a presumption of innocence," said West, adding he did not want to "pre-judge" the difficult circumstances Bryant is facing.
"He should not be treated to a lesser standard than anyone else would be."
For our early take on the pending charges, see: Michael Bryant: Did the Police Rush to Judgment?
- Garry J. Wise, Toronto
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Facebook delivers yet another episode of blatant sub-intelligence in American politics. Associated Press reports
Who keeps electing these people, and why?ARLINGTON, Tenn. (AP) — The mayor of a suburban Memphis city accused President Barack Obama of deliberately timing his speech about the war in Afghanistan this week to block the airing of the "Peanuts" Christmas television special.
According to The Commercial Appeal, Arlington Mayor Russell Wiseman posted the statements on his Facebook page and said the president is Muslim. Obama is Christian.
"We sit the kids down to watch 'The Charlie Brown Christmas Special' and our muslim president is there, what a load.....try to convince me that wasn't done on purpose," he wrote, according to the newspaper.
- Garry J. Wise, Toronto
Update:
The mayor has apologized:
The Commercial Appeal reports Wiseman e-mailed the media Monday to say he regrets offending anyone with what he described as a "poor attempt at tongue-in-cheek humor amongst friends." He also says he allowed things to go too far.
And, welcome Huffpo readers.
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- Garry J. Wise, Toronto
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