Seminar: Practical Lawyering and Internet-Related Issues - 2005Harvard Law School Fall Term, Thursdays, 2:50 - 4:50 p.m., Hauser 101 Jeffrey
Cunard, Bruce
Keller, Phillip Malone and Timothy Armstrong Course Home | Syllabus | Hypothetical | Administration | Clinicals |
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Counseling Clients: Litigation and Pre-Litigation Considerations
Readings:
Developing a Core Theory of the Case
Readings:
District Court: · Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment, pp. 1-2 and 25-26 · Defendants' Memorandum of Law in Support Defendants' Motion for Summary Judgment, pp. 10-11 and 20-21 · Defendants' Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment, pp. 2-3, 17-19 and n. 19 · Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, pp. 1-3, 6-10 and 29-30 · Decision: 972 F. Supp. 804 (S.D.N.Y. 1997), pp. 816-19 and nn. 14 & 16 Second Circuit: · Brief for Plaintiffs-Appellants Garson and Robbins, pp. 16-19 [Part 1][Part 2] · Brief for Defendants-Appellees, pp. 49-61 [Part 1][Part 2] · Decision: 206 F.3d 161 (2d Cir. 1999), pp.167-69 and n. 4 Supreme Court: · Brief for Petitioners, pp. 3 n.2 and 44-46 · Brief for Respondents, pp. 1-2, 7 n.6 and 34-36 · Decision: 538 U.S. 483 (2001), pp. 501-04 2) Egilman v. Keller and Heckman, LLP: · Defendants' Memorandum in Support of Motion for Judgment on the Pleadings, pp.17-19 and n.15 3) MGM, et al., v. Grokster Ltd., et al.: · Brief for Motion Picture Petitioners, pp. 1, 9-14, 46-47 · Brief Amici Curiae of Innovation Scholars and Economists, pp. 8-12, 16-18 · Transcript of Supreme Court Oral Argument, pp. 10-17, 37-38 For this week's issues, please consider:
Download designated page excerpts from Tasini and Egilman
Discovery: Documents and Depositions • Discovery strategies: Requesting and producing• Document preservation: Letters, requirements, consequences for spoliation (including Sarbanes-Oxley) • Document requests • Interrogatories • Electronic discovery and production • Preparing witnesses for deposition • Using documents in advance of, and at, depositions Readings: 1) Weiss v. National Football League, Properties, Inc.: Skim the following sufficiently to understand the issues in the case and to get a sense of what the various discovery requests and response look like: • Complaint • Counterclaims and Answer • Defendants Document Request • Defendants First Set of Interrogatories • Plaintiffs Response to First Set of Interrogatories 2) Electronic discovery materials • Skim quickly “Why Discover Electronic Data?” California Civil Law Discovery web site • Computer Associates International, Inc., v. Quest Software, Inc., 2003 WL 21277129 (N.D.Ill.), read • Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), read all • Zubulake v. UBS Warburg LLC, ___ F.R.D. ___ (S.D.N.Y. 2004), read 1-9, 13-18, pay particular attention to the “Postscript” on p. 18. • U.S. District Court of Delaware, "Default Standard for Discovery of Electronic Documents" • Klein-Becker order 3) SBC v. Global Crossing, Ltd., document preservation letter 4) Review website at www.archive.org (especially FAQ on The Wayback Machine)
Dispositive Motions and Brief Writing • General strategies for motions• Motions to dismiss: Personal jurisdiction • Motions for judgment on the pleadings • Motions for summary judgment • Writing persuasive briefs Readings: 1) Sherwood 48 Associates v. Sony Pictures Entertainment, Inc.: • Complaint • Memorandum Of Law In Support Of Defendants’ Motion For Judgment On the Pleadings, skim entire brief, read pp. 1-6 • Plaintiffs’ Memorandum Of Law In Opposition To Defendants’ Motion For Judgment On the Pleadings, skim entire brief, read pp. 11-12, 16-19 • Exhibits in Support of Plaintiffs' Memorandum -- skim all, read Rosenberg and Zoukis declarations • Reply Memorandum of Law In Further Support of Defendants’ Motion For Judgment On the Pleadings, skim entire brief, read pp. 8-12 • Decision, 213 F. Supp.2d 376 (S.D.N.Y. 2002) 2) Marvel Enterprises, Inc., et al, v Revolution Studios Dev. Co., LL.C., et al., Sony Pictures’ Memo in Support of Motion to Dismiss 3) Felten v RIAA: • Amended Complaint, skim paragraphs 23-41, 48-51, 87-94; read paragraphs 1-3, 42-47, Prayer for relief on First and Second Causes of Action • RIAA Motion to Dismiss, skim pp. 5-12, read pp. 1-2, 13-15, 18-21, 26-29 • Final hearing transcript (November 28, 2001), read pp. 23-24, 29-31, 35-36, 40-46 4) Skim the decisions in the following cases that we discussed in Week One sufficiently to understand how motions to dismiss were dealt with in each: • NFL v. Miller, 54 U.S.P.Q.2d 1574 (S.D.N.Y. 2000) • CNN L.P. v. Gosms.com, Inc., 56 U.S.P.Q.2d 1959 (S.D.N.Y. 2000)
Provisional Remedies: Temporary Restraining Orders, Preliminary Injunctions; Tailoring Injunctions • When are provisional remedies appropriate?• The standard for applying for such relief • Strategic considerations in applying for/opposing such remedies • Snatching victory from the jaws of defeat and vice versa Readings: 1) MyWebGrocer v. HomeTown Info, Inc., 375 F. 3d 190 (2d Cir. 2004) 2) A&M Records, Inc. v. Napster, Inc., 2001 U.S. Dist. LEXIS 2186 (N.D. Cal. Mar. 5, 2001), aff’d, 284 F. 3d 1091 (9th Cir. 2002). Read both opinions 3) Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000), aff’d, 273 F.3d 429 (2d Cir. 2001). Skim District Court opinion; read pp. 339 to end. Skim pp. 453 to end of Second Circuit opinion. 4) United States v. Microsoft consent decree proceedings: • District Court decision, 980 F.Supp. 537, read Section I (pp. 3-4), Section III (pp. 6-7), Section V (pp. 9-11) and Orders (p. 12) • U.S. Motion for Contempt, 12/17/97, read all • "Microsoft's Week In Court Is Adjourned," Techweb, 1/16/98
Issues of Proof: Using and Rebutting Experts • Experts’ roles in developing and shaping case• Expert Reports • Strategies in deposing/defending experts • Daubert/Kumho motion practice • Preparing for expert testimony at trial • Strategies in examining experts at trial Guest Lecturer: Professor Edward Felten, Princeton. Testifying expert in U.S. v. Microsoft, Eolas v. Microsoft; Universal City Studios, Inc. v. Reimerdes, Plaintiff in Felten v. RIAA (2001) Readings: 1) Pharmacia v. Alcon • Defendants’ Memorandum In Support Of Motion In Limine, read 1-15, 24-25 • Opinion and Order on Motion In Limine, read 1-23, 30 • Decision on merits, 201 F. Supp.2d 335 (D.N.J. 2002), skim pp. 354-368; read 377-378 2) United States v. Microsoft (1998 monopolization case) • Written Direct Testimony of Edward Felten, skim §§ 38-62; read §§ 1-9, 19-27, 63-74. • Trial Testimony (Cross and Re-Direct) of Edward Felten: • morning session, read pp. 1-3, 8-10, 25-29, 32-34• District Court Findings of Fact, 84 F.Supp.2d 9 (1999), skim §§ 1-17, 158-165; read p. 4 (introduction), §§ 170-191, 241, 410 • D.C. Circuit opinion, 253 F.3d 34 (2001), read pp. 32-35 (253 F.3d 64-67) 3) Eolas v. Microsoft, post Markman hearing claim construction ruling, 2000 WL 1898853 (N.D.Ill. 2000), read pp. 1, 5-6, 17-19
Corporate Counseling: Practical Advice from Inside and Outside the Corporation • Who is the client• Harmonizing positions within the corporation • Working with outside counsel • Developing and harmonizing corporate end user license agreements ("EULAs') -- IP, strategic and corporate issues • Microsoft's Shared Source licenses (a version of an open source license) and use of Creative Commons licenses • Counseling the corporation in the aftermath of the Grokster decision Guest lecturer: Thomas C. Rubin, Associate General Counsel, Microsoft Readings: • Preliminary Readings: • Microsoft Shared Source Initiative Overview • Additional readings (added October 18): • Brand new description of October 19, 2005 changes in Microsoft's Shared Source Initiative program
Trials and Hearings; Examination; Demonstrative Evidence • Pre-trial memoranda• Meeting the burden: Outlines of key issues/evidence, orders of proof • Preparing testimony and documents • Anticipating evidentiary issues • Direct and cross examination • Technology in the courtroom • Distilling and effectively communicating complex evidence • Post-trial issues: Proposed findings of fact & conclusions of law; post-trial briefs Readings: 1) United States v. Microsoft (1998 monopolization case): • David Boies, Courting Justice. Chapter 5: The Trial of Microsoft. Skim all; read pp. 174-211 (pay particular attention to descriptions of the Bill Gates' videotape excerpts and the cross-examinations of Jim Allchin and Dan Rosen). • District Court's Findings of Fact, 84 F. Supp.2d 9 (D.D.C. 1999): Reread (from Week 6) findings ## 179-185; read 409-412. • DC Circuit’s liability and remedy decision, 253 F.3d 34 (D.C. Cir. 2001) . Skim pp. 14-17 (*45-49) (background & overview). Read pp. 65-68 (*97-101) (trial proceedings), 84-85 (*117-119) (review of findings of fact). • Review a list of the many trial-related filings in U.S. v. Microsoft. You don’t need to read any of the filings, just look through and think about the list to get a sense of the many sorts of procedural, evidentiary and other issues that arise as one approaches and is in trial: • DOJ District Court/trial filings2) United States v. Oracle Corp.: • Plaintiffs' Trial Brief. Skim: pp. 3-7 (Products & Industry Background) ; read: pp. ii-iv (Table of Contents), 1 (Introduction), 9-15 (Product Markets), 23-27 (entry). • Plaintiffs' Proposed Findings of Fact (Redacted Version). Skim entire table of contents, Sections 8.1, 8.2 & 8.3 (portions of entry/repositioning); read Section 11.2 (Kutnick). Note: Detailed outline of assigned advice memorandum due by 4:00 p.m. on November 2 Note: Teams meet individually with instructors to discuss outlines of advice memorandum on November 3 and 4
Government Inquiries: Prosecution and Defense Guest lecturer: John Grossman, Chief, Corruption, Fraud and Computer Crimes Division, Massachusetts Attorney General’s Office• The role of the Internet prosecutor • Relationships between defense counsel and prosecutors • Issues in online investigations • Administrative and Grand Jury subpoenas • Special considerations in search warrants and searches for electronic data NOTE: The foundation for this week’s seminar discussion will be this hypothetical problem involving investigations of computer hacking and online child pornography, subpoenas and search warrants and related issues. Please read and consider the entire hypothetical. Focus particularly on the specific portions to which you have been individually assigned (you will receive an email with your assignment). You will be expected to discuss those portions during our seminar discussion. The hypothetical is based on, and requires careful review of, the following materials: Readings: • Commonwealth v. Damiano, 444 Mass. 444 (2005). Read all. • Commonwealth v. Rivera, 445 Mass. 119 (2005). Skim pp. 4-5, 14-21 (Cowin concurrence); read 6-11. • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Read 10-21 (sections dealing with “virtual child pornography”). • Washington v. Townsend, 147 Wash.2d 666, 57 P.3d 255 (Wash. 2002). Read pp. 3-9 (Sections I & II), 10-13 (Bridge concurrence). • New Hampshire v. Lott, 879 A.2d 1167 (N.H. 2005). Read 3-7. • Theofel v. Farey-Jones, 359 F.3d 1066, 1075–77 (9th Cir. 2003). Read pp. 7-14. • Commonwealth v. Ellis, 1999 WL 815818 (Mass.Super.). Skim 1-6; read 8-11 (focus on timing of search issues) • U.S. v. Syphers, __ F.3d __, 2005 WL 2674970 (1st Cir. 2005). Read all. • The chart at the end of the ECPA disclosure excerpt from the U.S. DOJ Manual for Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations. • Relevant Massachusetts statutes: o M.G.L. c. 272, §§ 29, 29A, 29B, 29C and 99.• Relevant Federal statutes: o 18 U.S.C. §§ 2701 – 2712 (The Stored Communications Act). Read §§ 2701-2703.
The Circular Relationship Between Litigation and Legislation • Problem solving: The intersection of litigation and legislationReadings: • MGM v. Grokster: o Ninth Circuit decision, 380 F.3d 1154 (9th Cir. 2004). Read pp. 5, 8-16• Legislative action before the Supreme Court Decision: o The Inducing Infringement of Copyrights Act of 2004 (the "INDUCE Act"), S. 2560, 108th Cong., 2d Sess. (2004) (as introduced). Read.• Post Grokster legislative discussions: o EFF release, "Interpreting MGM v. Grokster: What is the Practical Impact and What is Left for Congress to Do?"For this set of issues, please consider: 1) to what extent the Grokster decisions (at the district, court of appeals and Supreme Court levels) left or created a "gap" in the law and the approach each of the proposals took/takes to addressing it; 2) the differences among the approaches; 3) if you were representing content companies, Internet providers, technology providers or users, which, if any, of these legislative approaches and provisions would you now think would be agreeable or necessary in light of the Supreme Court's decision, and why (some issues on which you might want to focus are the legislatively proposed elements of the new action for "inducement" and how those compare/contrast with the Supreme Court's inducement standard; what standards would have applied in an action for "inducement" under the legislative proposals and, under which proposals might such an action survive a motion for summary judgment; should the "Betamax" standard be written into the law; to what extent should the legislation be technology-specific (i.e., focused on peer-to-peer); and should there be specific exemptions from liability); and 4) again, to what extent politics and political affiliation might be relevant in legislative proposals to address peer-to-peer or other technologies.
Tying it All Together: The Daily Practice of Advising Internet Clients – Part I On the last two sessions of the class, students will, in teams, provide “advice” to clients on issues previously assigned in the hypothetical. Designated teams of two other students will act as counsel for the client and will ask questions, raise concerns, and carefully explore the advice.
Tying it All Together: The Daily Practice of Advising Internet Clients – Part II On the last two sessions of the class, students will, in teams, provide “advice” to clients on issues previously assigned in the hypothetical. Designated teams of two other students will act as counsel for the client and will ask questions, raise concerns, and carefully explore the advice. |