do lawyers own their pleadings?

Very interesting (at least to lawyers) post on Slaw about a class action proceeding against Thomson Reuters. In short Thomson has started offering a service where it charges a fee to access a database comprised of pleadings filed by lawyers in court.

Raises a whole number of issues, both in respect of the ownership of the materials themselves and what implied licenses, if any, are being granted by lawyers in filing them with the court, whether to the court, participants in the court and the general public, as well as copyright not necessarily in the materials but the database created by Thomson (which of course in and of itself has value).

Not the first time it’s happened. There was a claim by Milberg Weiss (or at least the threat of a claim) a few years ago. Not sure what happened with it.

anonymous e-mailers, forum posters, meet norwich orders

A very nice summary of a recent Ontario case on Norwich orders by Omar Ha-Redeye in Slaw. Within the context of anonymous internet communications (anonymous e-mail accounts, forum postings, etc.), a Norwich order can be used to compel a service provider (such as an ISP, a forum host or e-mail service provider) to provide information on its customer in an attempt to identify the individual who has sent an e-mail or posted a message that has given rise to a claim or potential claim.

The case noted by Omar related to a defamatory e-mail that was sent from an anonymous Gmail account. The person making the claim needed to take a few steps in order to attempt to identify the alleged wrongdoer. First, as it is possible to open a Gmail account without submitting full/accurate personal information, he would have needed to obtain a Norwich order from Google. That order likely would have requested from Google a listing of the IP addresses used to create and/or access the specified Gmail account and the times at which they were used. Once the IP addresses were obtained, it would be easy to identify the ISPs or organizations which were allocated those addresses through a WHOIS or similar enquiry (generally IP address allocations are public information). IP addresses typically are not sufficient to identify a particular individual since most (if not all) of them are allocated to organizations, who then either permit specific computers within their organization to use them on a permanent basis (static IP addresses), or allocate them on a dynamic basis. In the case of most ISPs, they will maintain a pool of IP addresses that are used as their customers switch on their computers and access their accounts, so that the address allocated to any particular customer may vary over time.

Consequently, one the wronged party had obtained the relevant IP addresses and identified the ISPs, he would have needed to file a Norwich order against the ISPs to obtain information regarding the account holders who had used the IP addresses at the indicated times. The ISP’s records would allow them to do this, as ISPs will usually need to validate the identity of their customers when they sign up. The case at hand involved this second step, and the wronged party was successful in having the Norwich order issued against the ISPs.

Norwich orders are very useful devices to help advance claims where a wrongdoer attempts to use the cloak of anonymity to protect him or herself from liability. That being said, technology being what it is, there are limits to what a Norwich order can do. For example, if a wrongdoer used cash-only web-cafes, free anonymous wifi connections or, anonymization proxies, IP spoofing or pirates third party wifi signals or hacks into a third party computer, it may be more difficult to successfully identify the wrongdoer (though even in these cases it may not be impossible). Along similar lines, the defence of a claim by an individual whose information was obtained in such a manner could also assert that, although the account with the ISP was in his or her name, it wasn’t that individual who actually initiated the wrongful communication – e.g. shared ISP connection with others or hacked computer or internet connection. In short, while a Norwich order will provide useful information that will likely lead in the right direction to track down a wrongdoer, ultimately the only information it will provide is the linkage between an IP address used for wrongdoing and the account holder allocated that IP address, and not necessarily the individual committing the wrongdoing.

Wikiality – Part II

There was some traffic on the ULC E-Comm Listserv (on which I surreptitiously lurk – and if you don’t know what it is and are interested in e-commerce law, highly recommended) about courts citing Wikipedia with a couple of links to some other stuff, including an article on Slaw as well as an article in the New York Times about the concerns raised by some regarding court decisions citing Wikipedia. Some excerpts and notes to expand on my previous post:

From the con side:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

This raises a good point that I didn’t mention in my previous post. I certainly think Wikipedia is fine to note certain things, but I really, definitely, positively, do not think that it should be cited as judicial authority. In my previous article I thought this was so self-evident I didn’t bother mentioning, but the quote above illustrates that it might not be all that clear. Court decisions, as most of you know, are written by judges who take into account the facts and apply the law to the facts of the case, along with other facts and information that may have a bearing on the case. The source of the law includes statutes and of course previously decided cases, which enunciate rules or principles that the court either applies, distinguishes based on the facts as being inapplicable, or, in some cases, overturns (for any number of reasons). Court decisions are not, of course, published on Wikipedia and are not subject to the collective editing process of Wikipedia, nor should they be. Rather, references to Wikipedia in court cases are to provide additional or ancillary context or facts to a case. They do not and should not derogate from principles of law that are set forth in court decisions. But, contrary to what Mr. Ryesky, Esq., indicates above, I don’t think referring to Wikipedia for context or facts will suddenly undermine the foundations of law, since the legal reasoning itself still will and must be based on sources of law, not facts and not context.

Hence the following end to the NTY article:

Stephen Gillers, a professor at New York University Law School, saw this as crucial: “The most critical fact is public acceptance, including the litigants,” he said. “A judge should not use Wikipedia when the public is not prepared to accept it as authority.”

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

He added, “The higher the court the more you want to do it. Why do judges cite Shakespeare or Kafka?”