What tribbles are to the Starship Enterprise, Captain Kirk, and Mr. Spock, the parties’ ever-multiplying sealing and redaction requests are to this case, Judge Koh, and the undersigned.
Magistrate Judge Paul Grewal
Apple Inc. v. Samsung Elecs. Co., 2013 U.S. Dist. LEXIS 15072 (N.D. Cal. Feb. 1, 2013).
In fact, on August 1, 2012 your tweets will be sent across the universe to a galaxy far, far away.
Judge Matthew Sciarrino
People of the State of New York v. Malcolm Harris, Docket No. 2011NY080152 (N.Y. Crim. Ct. June 30, 2012).
Jessica and I were extremely honored to have Judge Paul Grewal and Judge Matthew Sciarrino join us for our first anniversary special.
Each took time to share their favorite science fiction story, what it meant to them and the impact science fiction has had upon them.
We hope you enjoy our anniversary special. Thank you Judge Grewal and Judge Sciarrino for sharing your thoughts on science fiction.
Since that time, we have had a wonderful adventure across the legal issues in science fiction, comic books and pop culture.
Needless to say, I also have had a blast in going action figure and t-shirt shopping for “research.”
Rise of the Geek Lawyers
I have learned there are a substantial number of geek attorneys and in the United States. I was first alerted to this when a partner at a Big Law firm asked over lunch, “Hey, do you have the lightsaber app for your iPhone?”
How did the number of “geek” lawyers come to be?
Today, we have a substantial number of attorneys and judges from Generation X and Generation Y. We grew up with Gene Roddenberry/George Lucas/Steven Spielberg enriched childhoods. The stories from our youth that made a significant impact, from “I have been and always will be your friend” to “Throw me the idol, I’ll throw you the whip,” were truly important to many of us. We spent countless hours in the backyard with space ships and action figures. These were defining happy moments. Those memories without question would echo throughout our lives and practice of law.
So for every attorney who has considered making a Battlestar Galactica or X Files references in a points and authority, you are not alone.
Geek Discovery
The Legal Geeks has allowed me to go boldly beyond blogging about eDiscovery. In the past year, I have been able to research prenuptial agreements and the 6th Amendment right to counsel. Some of my favorite posts this year have included:
I especially want to thank io9 for picking up my Firefly post and Above the Law for sharing multiple posts. I appreciate all of the Tweets and Facebook shares.
No, There is Another
Jessica Mederson is a wonderful blogging partner. A smart lawyer who has read the classic science fiction books for the last century, she was also into vampires before they were sparkling moody teenagers. Her post on judges who quoted Star Trek in opinions was brilliant and picked up by io9.
Jess has been a very good sport about podcasting in Sci Fi t-shirts and debating the finer points of legal geekdom.
We had an excellent adventure at the Paraben Forensic Innovation Conference and got to work with many other talented attorneys.
You Be The Judge
One of the greatest highlights this year has been getting to know Judge Matthew Sciarrino. He is a true civil servant who puts in long hours for the people of New York. People know of the newsworthy criminal cases he has presided over.
What the Judge does not get credit for was checking on his courthouse after the damage caused by Hurricane Sandy and performing a marriage ceremony for a couple.
No power, people struggling to get back to normal after the storm and Judge Sciarrino took the time to do something kind: performed a wedding ceremony for two people trying to get married.
Judges across the country do similar quiet good works. I have seen many local judges volunteer for the county high school mock trial tournament. There are many other examples as well. Their contributions to society are usually done without fanfare, but are not be forgotten by those they help.
In the past year, I also had the good fortune to spend time with Magistrate Judge John Facciola, moderated a panel with District Judge David Nuffer and had a blast with our anniversary podcast with Magistrate Judge Paul Grewal this year. I really cannot state how much I respect our judges. They work hard to uphold the Constitution and their service to country is very appreciated.
Oh, The Places You’ll Go
I attended the Alternative Press Expo and Big Wow! Comics Convention this year. In my opinion, attorneys attend legal conferences because they have to; people attend comic/geek conventions because they want to. I would like to find how we can make legal conferences events lawyers want to attend.
Presenting on Assumption of Risk & Red Shirts at PFIC
Part of the answer lies in the type of panel discussions that are held at conferences. The “geek” shows offer big names on topics and “how to” panels. While a Clarance Darrow cosplay panel would not likely be useful, focusing on how to conduct expert depositions, how to propound discovery requests for social media, or even how to balance billable hours to raising a family might be good starting points for conference organizers.
I am not sure the exact answers, but hope to have a better idea how to improve educational events for attorneys for the future.
Perhaps lawyers would like bow tie tying panel.
Your Honor, Your Honor
With due regard for Caddyshack, we were very honored to have an honorable mention by The Geekie Awards for our “fireside chat” podcast with Judge Matthew Sciarrino. I will attend the awards show on August 18 and look forward to meeting the extremely talented geek nominees and judges.
Which brings us to the ABA Journal Blawg 100. Nominations are now open and close on August 9 at 700pm EST. If you enjoy our blog, please nominate us for the ABA Journal Blawg 100.
Again, thank you for a great Year One. I look forward to Year Two.
I can’t believe I’ve been a Legal Geek for a year already (I’ve been a dork for decades more)! I wasn’t sure what to expect when Josh and I started this adventure last summer but I have to say it’s been more exciting than I could have anticipated. While it’s all been great, below are some of my personal highlights from my first year as a Legal Geek:
Meeting and working with my geeky partner, Josh. Josh is a ton of fun and I’ve learned more from him about US Presidents than I learned in high school. Plus, he’s one of the most creative attorneys I know (certainly far more creative than I am), so I always enjoy reading his posts!
io9! I still remember where I was when I found out io9 was going to publish my piece on judicial opinions with Star Trek references (I was at the Dells with my little girl, who wasn’t impressed). I’ve been a fan of io9 for a long time so it was a personal highlight to have something I wrote on that website. Plus, I was very impressed by the judges’ creativity.
And speaking of creative judges, I’m so glad I’ve had the opportunity to meet and talk with some great judges through this blog, especially Judge Sciarrino. I met him at a conference in Park City and we’ve done some fun video posts together. He’s creative, clever, and I’ve never met anyone else who knows as much about Star Wars.
Letting my geek colors fly! Having the opportunity to talk about some of my favorite shows, books, and movies is awesome. I’m a huge fan of Buffy, Veronica Mars, Robert Heinlein, John Carter, Terry Pratchett, Star Trek, and many more sci-fi authors and shows. And I know this may be hard to believe, but I don’t get to talk about this stuff much in my ordinary life.
Finally, as my friends and family know, I’m obsessed with Howard Stern and his show. So when one of my favorite Stern Show producers actually retweeted my post – and then I got to have a brief Twitter conversation with him – I was over the moon with excitement. Even my kids were excited for me that time!
Thomas Jefferson, Declaration of Independence, July 4, 1776
One of my motivations for becoming an attorney was my love of country.
Celebrating our Declaration of Independence on the 4th of July has always been very important to me (Just as is Constitution Day).
Not because of memories of my grandfather making homemade ice cream by hand, fireworks in front of our house or marching in the local parade as a youth.
Those things made up my American Experience.
My love of the 4th of July is heavily fueled by my love of history. From the events of 1763 to the Declaration of Independence; from to the Federalist Papers to the United States Constitution and ultimately the Bill of Rights, essentially define American life in the United States. The story of how all came about have been the subject of many books, each with great leaders who will be remembered as long as we have a country.
Nature throws us all into the world equal and alike…the only maxim of a free government ought to be to trust no man [kings included] to endanger public liberty.
John Adams, from his notes on an oration at Braintree, quoted in John Adams, by David McCullough, page 121.
On Being a History Geek
I took enough upper division history classes at UC Davis for a mini major in United States history. Our history has many heroes who did the hard work to build a free nation. They literally put their lives on the line for a free nation to be born.
Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after another, to the table of the President of the Congress tosubscribe what was believed by many at that time to be our own death warrants?
Benjamin Rush, letter to John Adams, 1781, The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi
We value our freedom from government intervention with our lives. Perhaps the most overlooked evidence of this national value is the Third Amendment to the US Constitution. Few people EVER hear mention of this Amendment, but it expressly forbids the quartering of soldiers in private homes. The Third Amendment expressly states:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The United States simply has not quartered soldiers in private homes because of our Revolutionary experience from the British soldiers being unwanted house guests. There is barely any case law of the Third Amendment, simply because the US Army has not forced soldiers into the homes of citizens to be fed and housed. We don’t do that here.
The Third Amendment highlights one of our fundamental beliefs in country: to be free of an oppressive police state. This is paramount for anyone to have “life, liberty and the pursuit of happiness.” Moreover, the Third Amendment is part of the Bill of Rights creating a “penumbra of privacy” as cited in Griswold v. Connecticut, 381 U.S. 479, 484 (U.S. 1965).
The Third Amendment might be one of the forgotten amendments, but it certainly demonstrates our values of a free society.
On Service to Country
Every post is honorable in which a man can serve his country.
George Washington, Letter to Benedict Arnold, September 14, 1775, The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi
Our country is free because of those willing to defend it.
I have many friends who serve in the military. I know many who serve the public trust as district attorneys, public defenders, county counsel and judges. To everyone who took an oath to uphold and defend the Constitution, thank you.
…and Third Amendment notwithstanding, there are very few Americans who would not be proud to invite someone serving in the military over to join in a 4th of July celebration.
I love John Carter, as is well-documented. I’m also fascinated with inside Hollywood stories, so I had to read John Carter and the Gods of Hollywood. This book by a Hollywood filmmaker examines why this movie did so poorly at the box office.
As I discussed last year, I was pleasantly surprised by the movie when I finally watched it. In fact, after seeing it, I was disappointed that it had been written off as such a disaster. And that meant we probably won’t be getting any sequels. So, given all that, I had to read Michael Sellers’ book just to find out what the heck happened to my beloved John Carter!
The book starts off with some great background on Burroughs himself, along with Hollywood’s interest in his other creation, Tarzan. Then it goes into the early efforts to put John Carter on the big screen. While Tarzan worked well on film, trying to replicate Barsoom and its inhabitants wasn’t feasible for most of the 20th Century (although there was some early talk of doing an animated film).
Robert Rodriguez and Jon Favreau were both attached to direct a John Carter movie when Paramount had the film rights a decade ago, which they had purchased from the family company started in 1923 to protect Burroughs’ creations, Edgar Rice Burroughs Inc. (“ERB”). Nothing ever came of these efforts, however, and the rights reverted to ERB. But then Andrew Stanton, of Finding Nemo fame, talked Disney into acquiring the rights and letting him direct the $250 million epic.
Fast forward to the marketing for the movie. Sellers spends much of his book detailing Disney’s failed efforts – and, more importantly, its general lack of effort – to market the movie. At times, his book reads like a textbook on social marketing. He also details his attempts, through his website, www.thejohncarterfiles.com, to make up for Disney’s feeble marketing. He and a friend made a fan trailer that was better than the official trailers. They even highlighted the fact that everyone from George Lucas to James Cameron has poached Edgar Rice Burroughs’ legacy with a great slogan: The epic tale that inspired 100 years of filmmaking.
Throughout the book runs a theme of hopefulness – the author keeps thinking that he or Disney will do something to turn around the impending disaster, although we all know nothing worked (which makes the constant dreams of a turnaround in the book a bit annoying). The book even ends with one last wish – that the fans could join together and inspire a sequel.
I’d love a sequel but I don’t hold out much hope that it will happen after what Disney did to the first John Carter movie – a travesty Sellers documents well in his book. My only complaints about his book have to do with the editing – there were too many typos and the book was far too long. He could have cut out much of the detail on the social media front, along with multiple pages he included of cut and paste comments from online sources, without hurting his story.
On the legal side, it’s interesting to see that ERB is still effectively using the law to protect John Carter. Having been written over a hundred years ago, A Princess of Mars is in the public domain. That’s because, under U.S. copyright law, any works published before 1923 are now in the public domain. Generally, works published now are protected for 70 years after the death of the author, although there are exceptions. So Burroughs’ early works are now in the public domain, while the rest of his works are only protected through 2020 (seventy years after his death in 1950). This only applies to the US, however. In other countries, such as Great Britain, ERB still has copyright protection for all of Burroughs’ stories.
But because its US copyright protection is rapidly eroding, ERB is now turning to trademark law to protect its marks – John Carter and Tarzan primary among them – in order to keep profiting from Burroughs’ genius. Last year it filed suit against a comic book distributor, alleging trademark infringement and unfair competition – not copyright infringement. If only ERB could have sued Disney for bungling the marketing of the John Carter movie!
Let’s be clear about one thing: my brother Gabe Diani is in Research, so this is a mild tale of nepotism.
Each episode of Research could provide law professors hours of exam questions for law students. It should give Employment Lawyers nightmares that result in them carrying whiskey flasks to client meetings. Uncontrollable laughter is also foreseeable.
Let’s review the highlights of the main legal issues presented in the first two episodes.
Episode 1: The Pilot
Episode 2: Secretariat
Let’s Poison a Test Subject
Taking a room full of test subjects and telling them one might drink poison raises many legal issues. The obvious is murder, because a poison is being used to kill a person (California Penal Code section 189). This demonstrates malice aforethought to kill a test subject and clearly is first degree murder, regardless of whether or not a specific test subject is the target of the poison.
There would also be significant issues of intention inflection of emotional distress by telling test subjects that there is a poison in one of the test cups. While there would need to be waivers of liability to participate in any research study, one cannot willfully try to torture people. There is simply no waiver of liability for torture.
Taylor’s Sexual Harassment of Dave
An attractive woman randomly kissing a supervisor might be common on late night cable, but it is sexual harassment in the real world. To prove sexual harassment, Dave would must demonstrate the following:
1. That Dave had a business, service, or professional relationship with Taylor; and
2. That Taylor made sexual advances to Dave.
Alternatively, Dave could prove under California law that:
1. Taylor engaged in verbal, visual, and physical conduct of a sexual nature;
2. Taylor’s conduct was unwelcome and also pervasive or severe;
3. Dave was unable to easily end the relationship with Taylor; and
4. That Dave has suffered or will suffer the violation of a statutory or constitutional right as a result of Taylor’s conduct.
5-30 California Forms of Jury Instruction 3065.
Contrary to Taylor saying it was not sexual harassment when a “woman does it,” Taylor could be found to have sexually harassed Dave, because the law is not limited on which gender can sexually harass the other. (The law even provides protection against same gender harassment, See Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547, 1548 (Cal. App. 2d Dist. 2006)).
There was uninvited kissing and verbal comments. Moreover, Taylor waiting in the conference room boarders on stalking Dave. All of these facts would show a repeated pattern of harassment of Dave or at a minimum stalking.
Job Posting on JDate
Research also raises issues of religious discrimination by posting a job ad on JDate, showing a preference for Jewish employees at the expense of qualified non-Jewish candidates (not to mention a high degree of cultural insensitivity). The California Constitution specifically prohibits disqualifying a person from employment based upon their religion. Cal Const, Art. I § 8.
There is an exception to the above, because a religious employer has discretion to select employees who will not interfere with their religious mission. Silo v. CHW Med. Found. (2002) 27 Cal.4th 1097, 1108-1109 applying U.S. Const., Amend. I; Cal. Const., art. I, § 4 to Cal. Const., art. I, § 8. As the team on Research has nothing to do with a religious mission, this hiring practice could result in a lawsuit.
Physical Battery by Dr. Rust
Dr. Rust slapped Dave across the face. There is also facial touching of both receptionists.
Battery under California Penal Code section 242 is “is any willful and unlawful use of force or violence upon the person of another.” Dr. Rust slapping Dave would unquestionably be battery, resulting in civil and criminal liability. It is also a terminable offense from employment.
The touching of both receptionists’ faces would be unlawful touching as well. While not the same physical force as a slap, it is extremely creepy behavior that could result in a lawsuit.
This says nothing of giving Kate face melting acid.
Who Handled the Blood Sample?
Performing blood draws and the storing of blood is a heavily regulated profession. (See, Cal Bus & Prof Code § 1242 and Cal Health & Saf Code § 7150.10). The team at Research could not simply leave a large bottle of blood out in the open brought in by a test subject.
Sexual Discrimination in Hiring
Grant’s mandate for Dave to hire a “hot chick” would be several forms of sexual discrimination. First, it eliminates all qualified men who applied for the position. Second, it discriminates against women based solely on appearance, whether or not they are skilled to do the job. Third, it invites unlawful future sexual harassment of the new hire. The mandate is a lawsuit waiting to happen.
There Are Even More Issues
Research is a law professor’s dream on possible legal issues. These are only the first two episodes and just the tip of the iceberg on possible liability for the fictional company.
Jessica and I were extremely honored to have Judge Paul Grewal and Judge Matthew Sciarrino join us for our first anniversary special.
