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CIVIL PRACTICE ‘Abuse of process’ must include misuse of process A trial court should have applied an expanded definition of “abuse of process,” and was wrong to grant summary judgment to the defendants, the Idaho Supreme Court ruled on Sept. 14. Cunningham v. Jensen, No. 31332. Gary and Martha Cunningham sued Donald and Charlotte Jensen in a dispute over a real estate transaction. During the litigation, the Cunninghams claimed that the Jensens and their lawyers engaged in abusive actions, including failure to appear for depositions and to produce documents. A trial court refused to enter a default judgment against the defendants, but ordered the Jensens to pay monetary sanctions and attorney fees. Although the parties settled eventually, the Cunninghams filed a tort action against the Jensens, their lawyers and their firm, claiming that the Jensens and their lawyers had engaged in abuse of process. A trial court granted summary judgment to the Jensens and an intermediate appellate court affirmed. Reversing, the Idaho Supreme Court held that the trial court erred in granting summary judgment to the Jensens. Remanding the case, the court held that the trial court should apply an expanded definition of abuse of process: “a showing by clear and convincing evidence that the defendant has (1) affirmatively used a legal process against the plaintiff; (2) primarily to accomplish an improper purpose outside of simply gaining an advantage in the underlying litigation for which the process was not designed; and (3) harm has been caused to the plaintiff by misuse of the process external to the litigation that cannot be compensated in the underlying proceeding.”   Full text of the decision Party subpoenaing data need not pay license fee A party that compels the production of confidential data by subpoena need not pay a license fee for the data, the 11th U.S. Circuit Court of Appeals held on Sept. 16 in an issue of first impression. Klay v. All Defendants, No. 04-13062. In a class action by physicians and independent physicians’ associations against managed health care providers, the physicians alleged that they were being underpaid for health care services they provided. In response to an interrogatory by the providers asking for evidence to support their allegations, the physicians cited reports of statistics compiled by the American Medical Association (AMA) that apparently showed a decline in the physicians’ income as a result of the actions of the providers. The AMA normally uses such reports internally and charges a licensing fee to anyone who wants access to the data. The providers served the AMA with a subpoena for the data. The AMA objected to the subpoena, and a Florida federal court referred the dispute to a special master. The special master recommended enforcement of the subpoena, as well as reimbursement to the AMA for expenses incurred in complying with the subpoena. However, the special master denied the AMA the license fee. A Florida federal court concurred. But the material was limited to use for litigation purposes only. The 11th Circuit affirmed. Fed. R. Civ. P. 45(c)(3)(B) requires “reasonable compensation” for the production of confidential material. The measure of reasonable compensation is the loss to the owner of the property. Because the strict limitations placed on the use of the data meant that the AMA did not suffer a loss of the commercial value of the information, the 11th Circuit agreed with the lower court that the AMA was only owed the cost of producing the data. CONSTITUTIONAL LAW LaRouche ban did not breach First Amendment The University of Maryland did not violate the First Amendment free speech rights of a Lyndon LaRouche campaign worker not affiliated with the university when-due to lack of space in designated open-speaking areas-it prohibited him from distributing literature, the 4th U.S. Circuit Court of Appeals held on Sept. 12. American Civil Liberties Union v. Mote, No. 04-1890. Michael Reeves, a campaign worker for presidential candidate Lyndon LaRouche, attempted to distribute campaign literature on the campus of the University of Maryland at College Park. The university prohibited Reeves, who was not affiliated with the university, from distributing his literature because there was no space left in the campus areas designated for such activity. Reeves, the American Civil Liberties Union and others sued, arguing that C.D. Mote Jr., the university’s president, violated Reeves’ First Amendment rights by preventing him from distributing his leaflets. A federal district court granted summary judgment to the university. Affirming, the 4th Circuit rejected Reeves’ argument that the university’s campus was a public forum, and held that the university’s content-neutral banning of Reeves due to lack of space in its limited public forum was a valid time, place and manner restriction. The court said, “The University policy does not deny un-sponsored outsiders access to its campus, but instead merely requires them to reserve a spot which they may do as much as five days in advance, and then speak or distribute leaflets in that part.” DAMAGES Suit expenses can’t be part of restitution order Time and fees spent correcting a credit rating after identity theft properly belong in a restitution order while lawsuit expenses and time with no “opportunity cost” do not, the 7th U.S. Circuit Court of Appeals held on Sept. 12. USA v. Havens, No. 04-2956. Patricia Havens pleaded guilty to various offenses relating to identity theft. An Indiana federal court sentenced her to 12 months in prison and ordered her to pay $30,000 in restitution to Patricia Brown, the victim. Havens appealed the restitution order, arguing that it imposed obligations on her that were not authorized by the Mandatory Victim Restitution Act of 1996, 18 U.S.C. 3663A. The 7th Circuit vacated and remanded to the lower court to determine the diminution in value of Brown’s property caused by Havens’ conduct. The 7th Circuit rejected Brown’s claim for reimbursement for the time she spent correcting the identity theft. But she was entitled to restitution for time spent correcting the theft that otherwise would have been compensated. In addition, fees she paid to counsel or other experts for dealing with banks and credit agencies to correct her credit history and repair the credit-rating damage are also compensable. But “time spent for which the opportunity cost was zero” cannot be in the restitution order. EMPLOYMENT Noncompete provision must only refer to rival A covenant not to compete must be designed exclusively to prevent activities that actually or potentially compete with an employee’s former employer, the Virginia Supreme Court held on Sept. 16. Omniplex World Services Corp. v. U.S. Investigations Services Inc., No. 042287. In August 2003, Omniplex World Services Corp., a specialized employment agency that provides various security services to government and private sector customers, won a bid to provide staffing for a government agency, referred to as a “Sensitive Government Customer” or SGC, in a project called “Project Eagle.” At the time Omniplex won the bid, Kathleen M. Schaffer was working on Project Eagle as an employee of MVM Inc., another staffing agency. Omniplex offered Schaffer continued employment on Project Eagle, and Schaffer signed a one-year employment agreement that prohibited her from performing “any services . . . for any other employer in a position supporting Omniplex’s customer.” Three months later, another staffing agency-Smith Corp.-offered Schaffer a job as an administrative assistant for the SGC at a covert location. Schaffer accepted and resigned from Omniplex, whereupon Omniplex filed a “motion for judgment,” alleging that Schaffer breached the contract and that Smith and its parent tortiously interfered with Schaffer’s contract and engaged in a conspiracy to injure Omniplex’s business. Omniplex sought injunctive relief and damages. A Virginia circuit court dismissed all three counts. The Virginia Supreme Court affirmed, holding that because “the prohibition in this non-competition provision is not limited to employment that would be in competition with Omniplex, the covenant is overbroad and unenforceable.” The court said that “by its very name, a covenant not to compete” is designed to prevent “activities that actually or potentially compete with the employee’s former employer.” GOVERNMENT Personal e-mail of public officials may be redacted Under the Colorado Open Records Act (CORA), e-mail messages between an elected official and a public employee that contain personal communications may be redacted to comply with the disclosure of open records, the Colorado Supreme Court held on Sept. 12. The Denver Publishing Co. v. The Bd. of County Commissioners of the County of Arapahoe, Colo., No. 03SC783. A Board of County Commissioners of Arapahoe County investigation of the Arapahoe County Clerk and Recorder’s Office over allegations of impropriety focused on an extramarital relationship between County Clerk and Recorder Tracy Baker and Assistant Chief Deputy Clerk Leesa Sale. A private investigator hired by the county made an extensive report that included 622 e-mail messages between Baker and Sale, many of which were sexually explicit. The board released a redacted version of the report, without the sexually explicit messages. Following requests from media outlets for release of the nonredacted report, the board filed a petition for a judicial determination of whether the requested version could be released. A trial court ruled that the redacted messages were public records under CORA and ordered their release. An intermediate appellate court reversed, holding that, although the sexually explicit e-mails were public records, they were exempt under the constitutional right to privacy. The Colorado Supreme Court affirmed, holding that, while some of the e-mails addressed the performance of public functions and did not contain any private communications and others contained private communications and did not address the performance of public functions, some contained a mixture of both. Since the CORA doesn’t require that e-mail records be disclosed in complete form or not at all, the court concluded that redacting the personal content from these mixed e-mails balances the competing interests of democratic government and individual privacy. INTELLECTUAL PROPERTY Trademark not breached by across-the-room error Initial-interest confusion in a trademark infringement case cannot be based on a consumer’s mistaken across-the-room identification of a similar product, a divided 6th U.S. Circuit Court of Appeals ruled on Sept. 12. Gibson Guitar Corp. v. Paul Reed Smith Guitars, nos. 04-5836/5837. Gibson Guitars Corp. makes electric guitars of a distinctive style sold with the Les Paul name. Gibson has a trademark for the look of the guitar, called “LP.” In 2000, Paul Reed Smith Guitars introduced a similarly designed guitar at an industry trade show. Gibson sued Paul Reed for trademark infringement, whereupon Paul Reed filed a countersuit saying that the LP mark was invalid and unenforceable. Working from a two-dimensional drawing of Gibson’s guitar, a Tennessee district court granted Gibson’s motion for summary judgment based on trademark infringement of the whole guitar and imposed a permanent injunction against Paul Reed. The 6th Circuit reversed. The court said, first, that the district court was wrong to give trademark protection to the whole guitar instead of just the image depicted in the silhouette drawing submitted with the trademark application. Second, that Gibson did not establish evidence of actual consumer confusion, post-sale confusion or initial-interest confusion. In particular, initial-interest confusion applies only to consumer confusion about a product’s origin, not, as Gibson argues, to confusion a consumer might experience upon seeing a similarly shaped Les Paul guitar from across the room and not realizing until he got up close that it was not a Gibson guitar. LEGAL PROFESSION Prosecutor immune from suit over her motives A prosecutor has absolute immunity from a court’s scrutiny into her motives for pursuing a particular case, the 2d U.S. Circuit Court of Appeals ruled on Sept. 14. Shmueli v. City of New York, No. 03-0287. New York City police brought a 93-count complaint against Sarit Shmueli for allegedly harassing her former domestic partner, Martin Lieberman, and Lieberman’s ex-wife. The case was eventually dismissed for speedy-trial reasons. Shmueli sued two former assistant district attorneys, Linda Fairstein and Stacey Mitchell. Shmueli claimed that Fairstein pursued the prosecution, even though she knew the allegations were false, because she was a personal friend of Lieberman. The district court refused to dismiss the 42 U.S.C. 1983 and state law claims of malicious prosecution. The district court rejected the prosecutors’ invocation of absolute immunity for prosecutorial decisions. The 2d Circuit reversed. Though a prosecutor is not absolutely immune from bringing a case that is outside the office’s jurisdiction, she is absolutely immune from cases that question her motives for pursuing certain cases. Suspensions are right for prosecutorial misconduct Suspensions of 120 days and 60 days were appropriate sanctions for prosecutorial misconduct where prosecutors seized notes from a criminal defendant during a deposition, the Indiana Supreme Court held on Sept. 13. In re Winkler; In re Goode, nos. 88S00-0408-DI-346 and 88S00-0408-DI-347. While prosecutors Cynthia Winkler and Blaine Goode were deposing a criminal defendant, Goode ripped pages of notes from a legal pad the defendant had been using to send notes to his counsel. The prosecutors wanted to use the notes to identify the defendant’s handwriting. Goode passed the notes to Winkler, who attempted to conceal them. When the defendant and his counsel attempted to find the notes, the prosecutors denied knowing where they were, and refused to admit their theft until the defendant spotted the edge of his notes protruding from Winkler’s files. After the filing of a Verified Complaint for Disciplinary Action against Winkler and Goode, an Indiana Supreme Court hearing officer recommended a 90-day suspension for Winkler and a 60-day suspension for Goode. Although the Indiana Supreme Court accepted the hearing officer’s 60-day recommended suspension for Goode, the court held that the 90-day suspension for Winkler was not an adequate sanction for her misconduct. Suspending her for 120 days, the court declared that she had violated multiple state ethics rules. The court said, “Blinded by their zealous quest to prosecute the defendant, respondents lost sight of basic ethical considerations. It is important that all lawyers understand that it is unacceptable to tolerate litigation premised on ‘the end justifies the means.’ “ TORTS Stadium owners liable for injuries in the stands Stadium owners owe a duty to attendees to provide screening in the most dangerous parts of the stands, the New Jersey Supreme Court ruled on Sept. 13. Maisonave v. Newark Bears Professional Baseball Club Inc., No. A-59/60-04. Louis Maisonave was hit in the face with a foul ball as he was purchasing something from a vending cart located in an open walking area along the first-base side of the Newark Bears’ stadium. Maisonave sued the Bears organization for negligence. The trial court ruled for the Bears, relying on the first prong of an appellate-level case that said that a stadium owner must offer protected seats in areas where fans may be expected to go. Because there were at least two vending carts behind home plate in a protected area, as Schneider v. America Hockey & Ice Skating Center discussed, the organization had met its limited duty. An intermediate appellate court reversed, saying that providing screened-in seats behind home plate is not the only thing a stadium owner has to do to meet his limited duty. The New Jersey Supreme Court affirmed, though for different reasons. A stadium owner/operator must provide screening in the most dangerous sections of the stands. The stands include the stairs providing access to the seats as well as the areas immediately adjacent to the stands dedicated solely to viewing the game. As for other areas of a stadium, the business invitee rule, under which the owner or operator owes a duty of reasonable care to guard against any dangerous conditions on the property that he or she either knows about or should have discovered, applies.

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