The BLT: The Blog of Legal Times

Video Game Rental Company Says U.S. Postal Service Playing Favorites

A federal appeals court in Washington today revived a company's challenge of the alleged preferential treatment that the U.S. Postal Service gives to Netflix for rates and service terms.

The challenger, GameFly, which rents and sells video games to customers, asked the Postal Service for the same treatment that it provides Netflix, the movie rental company, when it comes to rates and service terms for sending DVDs through the mail.

DVD mailers, the U.S. Court of Appeals for the D.C. Circuit said today, tend to jam the Postal Service's automated, high-speed letter-sorting equipment. The machines, the court said, sometime break DVDs. That's a problem for GameFly, however, and not Netflix, whose DVD mailers are manually handled. Netflix isn’t charged extra for the service, the court said.

"The Postal Service has saved Netflix—apparently its biggest DVD mailer customer—from this crippling otherwise industry-wide problem by diverting Netflix mail from the automated letter stream, shifting it to specially designated trays and containers, hand culling it, and hand processing it," Chief Judge David Sentelle wrote today in the D.C. Circuit ruling. The opinion is here.

DOJ Loses Push for 'Claw Back' Provision in Fight over Cybersecurity Documents

A federal judge in Washington today voided a proposal that would have given the U.S. Justice Department the authority to take back documents inadvertently disclosed in a public records suit over a cybersecurity program.

The judge, Gladys Kessler of Washington federal district court, also struck a proposed protective order that would have kept secret from the public, at least temporarily, any information the government provided to the Electronic Privacy Information Center in the litigation. Kessler's ruling is here.

DOJ lawyers pressed for the protective order and claw back deal, calling the provisions a "safety net" in the event the government publicly disclosed classified, exempt information. EPIC sued for records about a cybersecurity pilot program, conducted by the Department of Homeland Security and Defense Department, that the government says is intended to help defense contractors thwart cyber attacks. The challengers are concerned about any potential privacy invasion concerning government monitoring of Internet use.

"A protective order in a Freedom of Information Act matter would be contrary to law and would make it more difficult for the public to obtain information about the government's activities," Ginger McCall, director of EPIC's open government program, said in an e-mail today. "We were surprised that the Department of Justice was advocating for such an order."

Senate Debates FISA Amid Concerns Over Warrantless Wiretapping

The Senate plans to vote today on the U.S. Department of Justice's top legislative priority: reauthorizing key provisions of the Foreign Intelligence Surveillance Act.

The House in September passed its version of the FISA Amendments Act reauthorization, one of the top tools for collecting foreign intelligence. The reauthorization faces opposition and amendments from Democrats and other senators, who have privacy concerns about when the emails and phone calls of American citizens have been collected without a warrant.

The debate is scheduled to last all day, with a vote at 5:30 p.m. The FISA program has been the subject of numerous hearings on Capitol Hill, including testimony from U.S. Attorney General Eric Holder Jr. and privacy advocates. The FISA program was expanded during the Bush administration in 2008 to include the interception of digital communications. The law is set to expire in 2013.

The Morning Wrap

Missing data: From The New York Times today: "Nearly two decades after lawmakers began requiring background checks for gun buyers, significant gaps in the F.B.I.’s database of criminal and mental health records allow thousands of people to buy firearms every year who should be barred from doing so." The Wall Street Journal has this story today: "Lack of Data Slows Studies of Gun Control and Crime." The National Rifle Association is scheduled today to meet with reporters.

Dismissed: A New York state appeals panel upheld the dismissal of a class action that accused New York Law School of misleading potential students about graduates' success in the legal market, The New York Law Journal reports.

Onward to trial: Prosecutors will be allowed to use the cocaine and cash evidence seized in 2005 in the landmark GPS tracking case that reached the U.S. Supreme Court. The presiding judge in Washington federal district court, Ellen Segal Huvelle, concluded that federal agents had already targeted a drug stash house before the installation of the tracking device. The high court this year ruled the warrantless use of the device violated Fourth Amendment rights.

Former Lead Counsel in D.C. Mass Arrest Case Testifies About Evidence

As part of an investigation into allegations of mishandled evidence from mass arrests in 2002, a former lead attorney for the District of Columbia testified today that while some information wasn't disclosed right away to the court and plaintiffs, she never intended to withhold it indefinitely.

Today's testimony from Monique Pressley, a former senior assistant attorney general in the Office of the Attorney General, was the latest in a series of recent hearings on how police and city officials dealt with certain evidence, especially an electronic record of police activity during the arrests.

On November 28, a computer technician testified that when he found the electronic police activity record on May 3, 2011, he saw that someone had used the "delete" function. But because the "delete" function actually moved the file elsewhere in the system, he could recover it. Pressley said today that the court and plaintiffs' counsel weren't told about the so-called deletion until July 12, 2011, because she hoped they could hear it directly from the technician.

Judge Rules for DOJ in Dispute over Cell Tower Data

Federal agents acted in good faith in relying on court orders and not a warrant to obtain cell phone tower data associated with the target of a drug trafficking probe, a federal judge in Washington said in a ruling that marked a win for the U.S. Justice Department.

The judge, Ellen Segal Huvelle of Washington federal district court, skirted issuing a ruling on the underlying debate playing out in courts across the country: whether the authorities should be required, under the Fourth Amendment, to first get a warrant to access the location information that mobile phones transmit to towers.

Huvelle said in her ruling that she "need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies."

Numerous judges, Huvelle said, have allowed agents to review historical cell-site data via a court order and not a warrant. In the case against Antoine Jones, authorities relied on court orders in 2005 to retrieve prospective data. At the time, Huvelle said, "the state of the law was completely uncharted."

Huffington Post Facing $3M Libel Lawsuit from Panama Lawyer

Updated 11:40 a.m.

On August 2, an article called "The Primacy of the Rule of Law" was posted on The Huffington Post. The problem, according to a defamation lawsuit (PDF) filed Friday in U.S. District Court for the District of Columbia, is that the author listed, Juan Carlos Noriega, claims he had nothing to do with the piece.

Noriega, a lawyer based in Panama, is suing the media company for $3 million in damages, a full retraction, and an investigation into who created an account on The Huffington Post's website under his name.

A representative of The Huffington Post also could not immediately be reached for comment. Noriega's lawyer, Patton Boggs partner Benjamin Chew, said that the company never made any effort to contact Noriega before publishing the article along with his photo and a biographical description.

Jones Day Sues Former Client Vizio for $6 Million in Fees

Updated 12/10/12 at 10:55 a.m.

Jones Day is suing former client Vizio Inc. in Washington federal court, claiming that the consumer electronics corporation owes the firm more than $6 million in attorney fees.

According to a complaint (PDF) filed yesterday in U.S. District Court for the District of Columbia, Jones Day did intellectual property work for Vizio from May 2008 to October 2012. The firm alleged that Vizio, purportedly unhappy with how a patent prosecution had played out, refused to pay invoices from June through November of this year.

Jones Day is seeking $6,725,981 in fees, plus interest. According to the complaint, about $1.7 million of those fees were for work unrelated to the patent matters.

Hearing Resumes on Alleged Mishandling of Evidence in D.C. Mass Arrests

Testimony resumed today on allegations of mishandled evidence related to mass arrests in Washington in 2002, after a judge halted the evidentiary hearing on November 9 amid concerns about legal representation for witnesses.

Litigation over the mass arrests at Pershing Park during protests against the World Bank and International Monetary Fund has spanned more than a decade; the plaintiffs, most of whom have since settled with the city, claimed the arrests were unlawful. Since 2010, U.S. District Magistrate Judge John Facciola has been tasked with investigating allegations that police and lawyers for the District tampered with, destroyed or withheld evidence.

Facciola stopped Metropolitan Police Department General Counsel Terrence Ryan during his testimony on November 9 and advised city lawyers that Ryan might need to hire his own attorney to avoid potential conflicts. According to a recent filing, Ryan wasn't ready to resume his testimony today so Facciola heard first from Marc Bynum, a technician brought in by the Metropolitan Police Department to recover an electronic report of police activity.

Dickstein Shapiro Fends Off Summary Judgment Motion in Malpractice Lawsuit

Dickstein Shapiro scored a victory yesterday in a legal malpractice lawsuit brought by former client Encyclopaedia Britannica, with a Washington federal judge denying (PDF) the company's motion for partial summary judgment and also ordering sanctions against the company's counsel.

Encyclopaedia Britannica sued Dickstein in 2010, accusing the firm of mishandling patent prosecutions. The latest motion for partial summary judgment dealt with judicial estoppel – whether the judge could bar Dickstein from making an argument that would seemingly contradict statements made while the firm was still representing the company.

U.S. District Judge John Bates denied Encyclopaedia Britannica's motion, finding that judicial estoppel couldn't apply to statements made by lawyers now being sued by a former client for malpractice. Lawyers can't be faulted for inconsistencies when they switch from representing the interests of a client to defending against allegations of misconduct, he said.