That’s a lot of hyphens in that title, huh?  But well worth it!

As we all know, discovery is expensive, and the massive volume of electronically stored information (ESI) can make it even more so.  Thus cost-shifting provisions of the rules of civil procedure can often make or break the viability of a case.  This can  pose an especial burden on non-parties:

“When non-parties are forced to pay the costs of discovery, the requesting party has no incentive to deter from engaging in fishing expeditions for marginally relevant material. Requesters forced to internalize the cost of discovery will be More inclined to make narrowly-tailored requests reflecting a reasonable balance between the likely relevance of evidence that will be discovered and the costs of compliance.” Linder a Calero-Portocarrero, 183 F.R.D. 314, 322-23 (D.D.C. 1998).

The federal case law in this area appears to unsettled in the area, but in order for a non-party to shift the costs to the requester requires that the discovery be unduly burdensome.  There are many factors considered by the court to determine is a discovery request rises to such a level:

Questions of undue burden invariably lead to questions of cost shifitng… the Northern District of California sets forth eight factors in determining whether to shift cost to the requesting party: (1) the scope of the request; (2) the invasiveness of the request; (3) the need to separate privileged material; (4) the non-party’s financial interest in the litigation; (5) whether the party seeking production of documents ultimately prevails; (6) the relative resources of the parry and the non-parry; (7) the reasonableness of the costs sought; and, (8) the public importance of the litigation. The Sedona Conference(R) Commentary on Non-Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 at 200 (Fall, 2008).

Standing in marked contrast to the FRCP, the NY CPLR provides for automatic cost-shifiting with respect to nonparties.  According to CPLR Section 3122d, “the reasonable production expenses of a nonparty witness shall be defrayed by the party seeking discovery.”

Complex civil litigation often hinges on discovery, and the discovery scheme of the Federal Rules of Civil Procedure has traditionally revolved around a cost benefit analysis, with the cost shifting to the requesting party if production is unduly burdensome. The advent of the new e-discovery rules continue this, as provided in FRCP 26(b)(2)(B): “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

This naturally raises the question, what exactly does “reasonably accessible” mean?

The “reasonably accessible” limit reflects worry about e-discovery’s “enormous costs … becoming the single most expensive facet of litigation.” The cost of e-discovery has two key components: (1) quantity – with businesses exchanging 2.5 trillion e-mails annually, 2 million at a typical company, and with computer files often remaining recoverable after deletion, the amount of attorney time needed to review discovery, and the potential for discovery disputes, has increased; and (2) inaccessibility – digital data “can be expensive or virtually impossible to recover” due to “outmoded storage media and software, and dispersion of information.” …[E]-discovery can cost tens or hundreds of thousands of dollars in even fairly typical cases[.]

Of course, nothing in law is that simple. What is that important piece of discovery isn’t reasonably accessible? FRCP 26(b)(2)(B) goes on to say that “the court may nonetheless order discovery from such sources if the requesting party shows good cause.” However, it would seem that the “good cause” standard is anything but standard:

The Federal Rules of Civil Procedure contain numerous good cause standards. It is a canon of statutory construction that a word used in multiple places in the same legal text should have the same meaning. Thus, the various good cause standards in the Rules should receive the same interpretation. But they do not. [...] Even within the more limited universe of discovery rules, there is no single definition of good cause. A party seeking discovery of information that is not relevant to any party’s claims or defenses but is relevant to the subject matter of the action must show good cause pursuant to Rule 26(b)(1); a party seeking a protective order limiting discovery must demonstrate good cause pursuant to Rule 26(c); and a party seeking to conduct an adverse medical examination of another party must demonstrate good cause pursuant to Rule 35(a). Although these good cause standards all appear in the discovery rules, they have each been interpreted differently. As discussed above, the Rule 26(b)(1) good cause standard is weak and does not pose a significant hurdle to parties seeking discovery.
Henry S. Noyes, GOOD CAUSE IS BAD MEDICINE FOR THE NEW E-DISCOVERY RULES 21 Harv. J. Law & Tec 49 at 74-75, (Fall, 2007).

Electronically stored information is hardly a novelty by anyone standards, but in the federal law of discovery it is still a very new concept indeed. It would appear there are still a few kinks that need to be worked out.

Courts move slowly, so I’m sure it will be a while before we hear the outcome of J.D. Salinger’s copyright infringment lawsuit against the author of “60 Years Later.”  Upon further research, it is starting to seem that, even granting that plaintiff’s contention that 60 Years is a “rip-off” and is neither parody nor criticism or Salinger’s original, I would venture that it still falls squarely within the bounds of fair use.  Despite being commercial in nature, this unauthorized sequel by all accounts seems to be sufficiently transformative of the original work and does not diminish the value of the original.

There is an interesting New York case that is on point.  In Lennon v. Premise Media Corp, Yoko Ono sued the makers of the recent Ben Stein movie “Expelled” for using a 15 second snippet of Imagine without permission:

Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. P 6.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Lennon v. Premise Media Corp., L.P., 556 F. Supp. 2d 310

Thus, the court denied a preliminary injunction because “defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim.”(ibid.)

Numerous parrallels can be drawn between Lennon and the Salinger case.  60 Years seems to be prima facie to be transformatve, if only insofar as the main character has been aged 60 years and is in a different setting that the original Catcher in the Rye.  Furthermore, “the effect of the use upon the potential market for or value of Catcher could only be miniscule considering what an important place it has in the world of literature, 60 Years poses no serious danger to it.

So it would seem, based on the holding in Lennon, that the recent preliminary injunction against the publication of 60 Years was incorrect, and furthermore that the likelihood of Salinger’s success of the merits here is poor.

I have to preface this post by saying that I am an advocate of a Constitutionally protected right for citizens to keep and bear arms in self defense.   But, like the Constitutionally protected right to privacy established in Roe v. Wade, this right is not something that is actually to be found within the original meaning of the Constitution.  And though I believe that D.C. v. Heller, last year’s landmark Second Amendment Supreme Court case, had the right outcome in establishing such a right, it is unfortunately based on abysmally bad analysis on the part of the majority opinion author Justice Scalia.  As the brilliant Judge Posner wrote of the Heller case:

The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness. Suppose part of a state’s militia was engaged in combat and needed additional weaponry. Would the militia’s commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
The Court evaded the issue in Heller by cutting loose the Second Amendment from any concern with state militias (the “National Guard,” as they are now called). The majority opinion acknowledges that allowing people to keep guns in their homes cannot help the militias, because modern military weapons are not appropriate for home defense (most of them are too dangerous), and anyway the opinion says that the only weapons the Second Amendment entitles people to possess are ones that are not “highly unusual in society at large.” Modern military weapons are highly unusual in society at large. By creating a privilege to own guns of no interest to a militia, the Court decoupled the amendment’s two clauses. from Richard Posner, In Defense of Looseness

What Scalia did with the Heller opinion is undermine the very foundation of the outcome he wanted to achieve.  By resorting to shoddy historical cherry-picking, Scalia debases his own closely held philosophy, and becomes himself an activist, (or to use his own turn of phrase, a “vigilante justice”).  See, via Fabius Maximus:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.” Antonin Scalia, Vigilante Justices: The Dying Constitution

So, by employing these vigilante tactics, Scalia is not only abrogating his notion of the Consitution as dead, but he is allowing those who oppose his politics to use his own words against him.   Scalia’s logic as employed in Heller would lead him to endorse the outcome of Roe, a decision which he condemns on the grounds that the “Constitution says nothing about abortion.”  Well, it also says nothing about a right to keeping handguns for self defense– so which is it? Indeed, the partisanship of Justices can sometimes be quite appalling, and just as Scalia is willing to violate his own principles as a means to a right-wing end in the Heller case, so too might a majority left-leaning court be willing to adopt an “textualist” position for the purpose of overthrowing Heller.

New York’s continued adherence to a system of fault-based divorce has been described by many as archaic. In New York there are five grounds for divorce, cruel and inhuman treatment, adultery, abandonment, imprisonment exceeding three years, and divorce after a one year separation. Many people see New York’s divorce scheme as resistant to the modern system of divorce-at-will, but there are concerns no-fault divorce system can be unfair for women, who traditionally are not the primary income earners.

The New York chapter of the National Organization of Women (“NOW”) argues that adoption of true no-fault divorce would have the effect of harming women by allowing the generally wealthier husbands to obtain a divorce before all issues regarding economics  [*318]  and support for the dependent wife have been resolved. 91 As the head of the state chapter states, “the moneyed spouse, with no-fault, can literally hide the assets, take off, get married before the wife even knows what hit her.” 92 In addition, opponents of no-fault view divorce as a bargaining tool which women, especially low-income earners, possess during divorce proceedings. 93 If the husband is allowed to unilaterally file for divorce, a strategic bargaining chip is destroyed and women are left with little to no economic protection. NOW rests its long-standing stance, opposing unilateral no-fault, on the socio-economic position of women in society. The organization’s claim is that women overwhelmingly sacrifice their career and financial independence in order to fill the role of housewife and mother. Gabriella L. Zborovsky, BABY STEPS TO “GROWN-UP” DIVORCE: THE INTRODUCTION OF THE COLLABORATIVE FAMILY LAW CENTER AND THE CONTINUED NEED FOR TRUE NO-FAULT DIVORCE IN NEW YORK, 10 Cardozo J. Conflict Resol. 305

Ms. Zborovsky goes on to criticize New York’s recent move towards Collaborative Family Law as simply a band-aid solution to a problem that can only be solved by implementing a no-fault divorce regime, however I’m not so sure I agree with this.  Collaborative Family Law aims to incorporate mediation and alternative dispute resolution techniques into the divorce proceeding, as well as attempting to remove the financial incentive for lawyers to draw the case out in court (See: this article).  I think there are compelling reasons to retain the fault based system, as we are seeing elsewhere a general trend of tracking back from the norm of at-will divorce (for example Louisiana’s covenant marriage), and I also think there are compelling reasons to expect great success for the collaborative law approach to divorce.  Perhaps there is something to be said for New York’s more antiquated system, or perhaps rather it is that there are significant flaws in the predominant no-fault scheme that need to be addressed.

Let me say first of all many thanks to Vince Manapat who made a very excellent reply to my prior article, in which I quoted his Art Law blog on the J.D. Salinger copyright infringement case.  Let me reiterate that I have never read the original nor the purported sequel, and so I am going to withhold any definitive opinion on this case.  It seems that the parody defense is not a solid here as it may have seemed at first blush, and that alleging a work is parody should not per se be enough to make it so.  Indeed, despite the inherent difficulties for judges in making aesthetic decisions, a prohibitions against value-judgments results in a slippery slope in the opposite direction.  As Mr. Manapat points out:

Judges must make aesthetic decisions; if they do not, then there would be no such thing as copyright protection. For instance, if a judge cannot decide whether something is a parody, then all an infringer would have to do is claim their work is a “parody” and not be liable.

So if we just look at the face of it, the work doesn’t seem to be parody, which has more of a bright line surrounding it.  Having delved into a little more research on the subject, however, I am finding strong indications that there is a good defense in this case on the grounds that the work is criticism.  Mr. Manapat reported that this argument has not been favorably received in court so far:

Rosenthal responded that it was criticism of J.D. Salinger and of Catcher in the Rye.   But Judge Batts correctly noted that it must be criticism of the work it copies.  Otherwise, any infringing work could be inoculated just by the very fact that it criticizes.  Mr. Rosenthal did not relinquish this argument without a fight, as he reiterated it many times throughout the proceeding…  Ultimately, whatever the merits of this argument, it was not sufficient to prevent Judge Batts from enjoining the publication of the book. from Catcher in the Rye Alleged Sequel…

So what is this purported sequel about, anyway? Well:

In “60 Years Later,” scheduled to be published in Britain this summer and in the United States in the fall, a character very much like Caulfield is 76 years old, an escapee from a retirement home and identified as “Mr. C.” The novel is dedicated to Salinger and the author is a character in it, too, wondering whether to continue Caulfield’s story.

“The Sequel is not a parody and it does not comment upon or criticize the original,” Salinger’s lawsuit alleged. “It is a ripoff pure and simple.” from Author J.D. Salinger Taking Another Fan to Court

Now, being a “ripoff pure and simple” may go toward negating the parody defense, but I would argue that it should likewise undermine the defense that 60 Years After serves as criticism.  Perhaps criticism ought to be more a fluid concept, unlike the bright-line that defines parody.  Though unusual, I think it is not inconceivable that legitimate textual criticism can be made in the form of a narrative, I have seen it before in other sorts of academic literature.  Not the least reason for this genre is that it is more entertaining and gripping for the reading than dry academic prose.  The frontiers of art are seeing a breakdown of what it means for a work of art to be “original,” like the way time and space breaks down at the event horizon of a black hole.  You can call this phenomenon post-modernism:

Aggressively and self-consciously derivative in its ideology, post-modernist art critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality…. Neither the Copyright Act nor its legislative history limit an artist to commenting on or criticizing only the underlying copyrighted work. It seems apparent, instead, that criticism and commentary are meant to encompass all forms of criticism and commentary, so as not to restrict freedom of expression impermissibly. By dictating that an artist must be directly criticizing or commenting on the underlying work in order to use a copyrighted work in another work of art, the court has censored the content of permissible artistic speech. Lynne A. Greenberg, The Art of Appropriation: Puppies, Piracy and Post-Modernism, 11 Cardozo Arts & Ent LJ 1

I suppose then the question I ought to ask is not whether a judge should make an aesthetic decision but which aesthetic decision to make.  And in this case what it seems to come down to is 60 Years After a good faith attempt and criticism.  And moreover, what does it take to separate criticism from a “ripoff pure and simple?”

Having never read Catcher in the Rye, and thus not being a fan of it, I am a little perplexed at the emotional reaction some commentators are having to the litigation surrounding the unauthorized sequel to the J.D. Salinger novel.  The anonymously writted sequel is called 60 Years After and appropriately enough it takes place 60 Years After the events of Catcher in the Rye.  According to this article, there has recently been issued a preliminary injunction against publication of 60 Years After while the case is litigated.

The idea of writing a sequel to a major work of literature isn’t a particularly innovative one, it has often been applied to works that are securely in the public domain, and these can range from highly literate and important in the own right (i.e. The King Must Die) to, well, not as literate or important (see the authorized K. W. Jeter sequels to Do Androids Dream of Electric Sheep).  Considering what an important and monolithic piece of literature Catcher in the Rye is, it isn’t really all that unusual to have a derivative works, and apparently there is a non-frivolous legal question as to whether or not it pushes the boundaries of parody.  But it surprises me when I see articles like this advocating that the judge in the case make an “aesthetic” judgment:

Essentially, this case may come down to the question of how much copying is permissible when one is making a parody.

How much is too much is a question to which the courts have given no clear answer.  But the line has to be drawn at some point.  This will require judges to decide whether there are too many copied elements that are not essential to the parody, and this comes dangerously close to something judges loathe to do: make aesthetic judgments.  Nevertheless, if the judges are too squeamish to do this, then any writer can merely take a famous work of fiction, change some fundamental trait of a character such as age or race, and in rote fashion take that character through all of the book’s scenes without any additional creativity and the author of the “parody” will be protected under fair use. from Why J.D. Salinger May be Justified in Seeking to Stop Publication of Catcher in the Rye Sequel

This is a problematic line of reasoning and potentially a slippery slope.  Judges really should never make aesthetic judgments, because these really are “in the eye of the beholder.”  If a judge makes a personal aesthetic judgment it could be  decided that the change of a fundamental trait, i.e. making Holden Caufield 60 years older, is somehow not of sufficient creative value to merit the distinction of fair use.  It is not for the judge to decide if a particular work of fiction is good enough to be a parody, rather the place of the judge is simply to decide if the threshold has been met.

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works…If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (citations omitted).

Even though the result may be a product that is derivative and not especially funny, it is not for the judge to decide these things.  Parody is so broad as to allow even direct quotations from the original, and it is certainly not clear from the facts at hand as to whether or not the author of 60 Years After somehow avoided the drudgey of working up something fresh, or if by appeal to the original was able to create something new, thereby falling within the protection of fair use.  I don’t know enough about the case to say, but it is far from obvious.  Furthermore, I think there is a danger in leaving aesthetic decisions up to a judge, as that can’t help but have a chilling effect on artists, can could potentially set a terrible precedent in the era of the remix.  To wit:

The increasing popularity of the mash-up movement may well spur the market to correct the problem of high licensing fees or outright refusals to license samples for use in new works. 191 However, a fair use enclave for truly transformative re-contextualized works should nevertheless protect those ambitious new artists who aim to use existing materials in ways that no one else would imagine. To allow such uses would re-affirm the copyright’s goal of ensuring public enrichment through access to new expression. After all, “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Nicholas B. Lewis, Shades of Grey: Can the Copyright Fair Use Defense Adapt to New Re-Contextualized Forms of Music and Art?, 55 Am. U.L. Rev. 267, 305 (citation omitted).

The Supreme Court ruled today in the Osborne case that there is no inherent Constitutionally protected right to access DNA evidence post-conviction.  As Alito argues in his concurrence, “If a state prisoner wants to challenge the State’s refusal to permit postconviction DNA testing, the prisoner should proceed under the habeas statute, which duly accounts for the interests of federalism, comity, and finality.”  As Stevens points out in his dissent, “while acknowledging that Osborne may have a due process right to access the evidence under Alaska’s postconviction procedures, the Court concludes that Osborne has not yet availed himself of all possible avenues for relief in state court.”  He goes on to argue that “DNA evidence in this case would be so probative… that it exceeds the materiality standard that governs the disclosure of evidence under Brady[.]”  On the other hand, Alito maintains in his concurrence, “the State’s weighty interests cannot be summarily dismissed as “‘arbitrary, or conscience shocking.’

This article raises some interesting points about the new regulatory reforms and the fairness of securities arbitration.

If you accept the unfairness premise as begin true, why aren’t we discussing the fact that the SEC (through its underling, FINRA) forces individuals to arbitrate their claims, by use of a rule that requires every employee of the brokerage industry to arbitrate disputes with his employer, and every customer.  Mark J. Astarita, Time for Government Mandated Arbitration to Go

As has been noted, there is a 90 day statute of limitations in place to commence a CLPR Article 75 proceeding to vacate or modify the arbitration award.  In the Matter of Lowe decided last year:

The straightforward but apparent issue of first impression in an appellate court in New York is whether the 90-day statute of limitations set forth in CPLR 7511 (a) begins to run on the date on which the arbitrator’s decision was mailed to petitioner or the date on which it was received by petitioner or his or her agent. We conclude that the operative measuring date is the date on which the decision was received by the petitioner or his or her agent[.] Matter of Lowe (Erie Ins. Co.) 2008 NY Slip Op 07735 [56 AD3d 130] October 10, 2008

If a proceeding is commenced within the 90 days after the arbitration, the battle is not yet over.  The arbitrator is held to a particular standard:

An arbitrator exceeds his power by going beyond a specifically named limitation on his authority, by issuing a totally irrational decision, or by issuing a decision that violates a strong public policy…An award is irrational where the arbitrator lacked any “proof whatever to justify the award” , or misconstrued the parties= agreement to the extent of fashioning a new agreement for them . Otherwise, an arbitrator=s award is not subject to judicial review because of errors of law or fact[.] L. Anthony Joseph, Jr. v. Milbank, Tweed, Hadley & McCoy, LLP (2004).


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