ACC Litigation Committee March Newsletter
IN THIS ISSUE...
Message from the Litigation Committee Chair  
Member Spotlight: Dawn Wagner  
Visit to the U.S Supreme Court  
The State of User Privacy Twitter and NJ Become the Latest Contributors to the Debate  
Blog Post: Random Acts of KINDness  
Upcoming Legal Quick Hit  
Meet William (Bill) Hochul, Legal Quick Hits Co-Chair  
Sponsor Highlights  
Networks
Virtual Library
Renew Your Membership
Update Your Records
Upcoming ACC Programs
Search Back Issues

Webcasts
Updates From ACC Committees

Message from the Litigation Committee Chair

Happy New Year!

I would like to welcome you to the ACC Litigation Committee’s first quarterly newsletter! As our first newsletter of 2017, I would like to thank the Litigation Committee’s dedicated leadership team for all of their hard work and enthusiasm out of the gate. Since the ACC’s 2016 Annual Meeting, the leadership team and the Committee’s sponsor, Navigant Consulting, have spent a lot of time identifying and planning to deliver various resources and programs to our members over the coming year, including for this year’s Annual Meeting in Washington, D.C. 

In the last quarter of 2016, the Committee provided great programs on topics such as Trends in Damage Valuations, Beneficial Ownership Disclosures Requirements, and How to Structure a Whistleblower Program. Already in 2017, the Committee has provided a well-timed program on Navigating In-House Opportunities as a Litigator to assist our members who may be considering new career opportunities in 2017 and we have some great programs planned for the rest of the year, including topics such as the Use of Artificial Intelligence and the Regulatory Framework for Using Drones. And we have so much more to come!

I would also like to highlight the Litigation Committee’s refreshed Committee page. If you have not yet visited the Committee’s page, you can Click here to find a lot of useful information about the Committee in the following areas:

·      Chair’s Message

·      Leadership

·      Mission & Charter

·      Interest & Affinity Groups

·      Call for Authors

·     Awards & Past Chairs

·      Job Listings

In addition, you can also find on the Committee’s page, a list of eGroup topics, upcoming Committee events and the Committee’s developed resources for our members.  Also on the page, you find posted information about the Committee’s sponsor and a list of Committee Highlights that identifies committee resources, including a link to both the inhouseACCess.com blog and discussion, and the Litigation Committee’s Cybersecurity Questionnaire and Guide.  We have also included a link that you can use to sign-up to receive recurring meeting invites for the Committee’s monthly calls. Last, but certainly not least, you will also find important information about the Committee’s pro bono imitative with KIND (Kids In Need of Defense), which serves as the leading organization to protect children who enter the U.S. immigration system alone and strives to ensure that no such child appears in immigration court without representation.

I would also be amiss if I failed to mention that we stand ready and willing to support our members who have an interest in exploring opportunities for professional growth and want to exercise their leadership or authoring skills. Please do not hesitate to contact me, or anyone on the leadership team if you have any questions about or suggestions for our Litigation Committee or if you would like to get involved with the Litigation Committee and the many resources that we help provide our members. We’d love to hear from you.

Not yet a member of the Litigation Committee? Then click the "JOIN NOW" button on the Committee’s page to be included in the Committee's invitations and discussions relevant to you.

On behalf of the Litigation Committee’s leadership team, we thank you for your involvement and interest and stress that this Committee is for and about you, our members. We are looking forward to a supporting you and to a successful 2017!

Thank you.

-Bryon
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Member Spotlight: Dawn Wagner
Meet Dawn!

Dawn Wagner is an attorney in the Litigation Practice Group of Zurich North America's Corporate Law department. Dawn began working for Zurich in 2002 and before joining corporate law held various positions within the Excess Casualty Claims department including Claim Specialist and Team Manager. Prior to joining Zurich, Dawn practiced law for six years with defense litigation law firms in Chicago, Illinois handling primarily tort-related matters including automobile liability, medical malpractice and dental malpractice cases. Dawn received her undergraduate degree from Western Illinois University (B.A., Communications, 1993) and her law degree from Northern Illinois University College of Law (J.D., 1996).

What are your general responsibilities in your current role?

· Dawn manages “bad faith” cases as well as non-claim litigation including collection matters and employment cases. Dawn also handles complex subpoena responses, provides advice on pre-litigation disputes and supports the Claims organization on corporate and underwriting issues arising in coverage litigation.

What is one litigation issue that keeps you up at night?

· Discovery abuse – I spend a great deal of time managing discovery issues on my litigated matters. The new federal rules on proportionality were much welcomed and look forward to seeing how those rules further evolve from an in-house perspective.

Tell us about a hobby or personal interest.

· Being from Chicago, I am a huge sports fan. I try to attend at least one football, hockey and baseball game each year.

 
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Visit to the U.S Supreme Court

The Litigation Committee is excited to announce that we are planning an ACC member visit to the U.S. Supreme Court in 2017.

We are currently working out the details and will be in touch with additional information on how you can participate.

Stay tuned!
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The State of User Privacy Twitter and NJ Become the Latest Contributors to the Debate
by Fernando M. Pinguelo, Esq. (CIPP/US) and Daniel P. Sodroski, Esq.

In an age where the Internet, cloud computing, and social media are integral components of nearly every modern technology company, concerns over users’ privacy have been at the forefront of their corporate counsels’ agendas.  Apple famously refused to provide government agencies with “back door” access to its devices and services. More recently, Facebook has fought back against government intrusion into its users’ digital lives by challenging search warrants issued pursuant to a criminal investigation, arguing that the warrants were unreasonably overbroad and all-encompassing. These and other similarly situated companies must carefully navigate the narrows between obstruction of justice and user privacy­—a step too far in either direction could lead to liability and dangerous precedent. 

This murky voyage is often made wading through decades-old legislation because these laws were crafted with language specific to the technology of the day, leaving courts to struggle to apply these laws consistently with regard to privacy in the context of modern technologies. As a result, today’s corporate counsel must be ever so cautious and knowledgeable when addressing government and law enforcement requests for electronically stored data, as their companies may be in positions to challenge requests from the government depending on the type of data sought and how it is electronically stored. In fact, many companies have a contractual or other legal obligation to protect such data.  Although the concept of data privacy can be complicated and the outer contours of Internet privacy can be difficult to discern, corporate counsel risk legal action, either from the government or from its customers, if their companies fail to devote significant attention to the legal landscape in relation to their businesses. A recent New Jersey state appellate court decision brings to light the impact that changes in technology has on existing laws and the uncertainties of outcome that befall those who find themselves in the middle of this legal debate.

The Twitter Decision

On February 2, 2017, a state intermediate court of appeals, addressed two issues of first impression within its jurisdiction implicating private communications content held by third-party service providers: (1) whether video and audio data electronically stored on Twitter, Inc.’s servers are considered wire/oral or electronic communications, and (2) whether accessing such electronically stored information constitutes an “interception” as defined by the state wiretap law, the Wiretapping and Electronic Surveillance Control Act (the “NJ Wiretap Act”). In other words, are private Twitter communications more analogous to an active telephone call which would require an onerous wiretap order to enable government access? Or, are these Twitter communications more like a static voicemail which would require an easier warrant to gain access to such communications?

Prosecutors argued that access to Twitter posts or videos did not amount to an “interception” of data under the NJ Wiretap Act because the posts are “stored” on the company's servers and typically accessed after the communication is made. Amicus curiae contended that these communications are more like a telephone call because they are ongoing.  The appellate court sided with prosecutors and reversed the trial judge’s decision to limit access to the Twitter communications.

The NJ Wiretap Act provides for issuance of “communication data warrants” (“CDWs”), which “require the disclosure by a provider of electronic communication service or remote computing service of the contents of an electronic communication without notice to the subscriber or the customer if the law enforcement agency obtains a warrant.” Generally, the law considers “wire” and “oral” communications to be the transfer of the human voice from one point to another by aid of a wire, cable, or similar connection.  While wire and oral communications are almost always those transmitted in real time, the NJ Wiretap Act also classifies wire communications to include those that are stored electronically, such as a voicemail message. The NJ Wiretap Act defines “electronic communications” as all other types of communications not involving the use of a human voice being transferred by wire or similar in real time (e.g., video without an audio component), or communications that would otherwise be considered wire and oral communications but are being stored electronically (i.e., not being transferred in real time). 

To intercept wire, oral, and electronic communications being transferred in real time, law enforcement must meet the heavy burden of (1) a showing of necessity because normal investigative procedures have failed, and (2) probable cause to obtain a wiretap order. By contrast, law enforcement need only obtain a warrant upon a showing of probable cause to be permitted access to wire, oral, and electronic communications that are stored electronically.  Additionally, warrants for electronic communications can be issued for any purpose, which is far less restrictive than wiretap orders, which may only be issued to intercept communications pertaining to the commission of certain crimes.

Here, the state prosecutor filed ex parte applications for two CDWs, which sought access to videos and audio communications posted by two users on their Twitter accounts that could otherwise not be accessed.  The users had configured their Twitter accounts to restrict public access to the content of their Tweets. The lower court had granted the state prosecutor’s applications, but restricted the CDWs to include only the visual component of video messages, specifically leaving out any audio data.  The state moved for leave to appeal the restriction on its CDWs.

Relying heavily on Title III of the Omnibus Crime Control and Safe Streets Act (the “Federal Wiretap Act”), the Electronic Communications Privacy Act (“ECPA”), the Stored Communications Act (“SCA”), and federal caselaw to assist in applying the complex and convoluted nature of social media, and in particular Twitter, to the NJ Wiretap Act, the appellate court ordered that the CDWs be entered without any limitations. 

Recognizing the blurred distinction between wire and electronic communications, since by definition both require a sound of some kind to be transferred in whole or in part by a wire, the appellate court ultimately held that the Twitter postings constituted “electronic communications” under the NJ Wiretap Act because that act provided for a broad range of communications that included the transfer of non-aural (e.g., signs, signals, writing, and data) communications. The court noted that it did not find the presence of a human voice to be dispositive of whether a wire was involved in transmittance, which would trigger the requirement of a wiretap order.

The appellate court also concluded that, since Twitter postings were considered electronic communications that were stored on Twitter’s servers, a wiretap order was not required to provide law enforcement access to the data and content of said postings.  The court noted that a wiretap order would only be required for obtaining an electronic communication being made contemporaneously with its transmission.  Instead, since the data was already stored on Twitter’s servers, and not being actively transmitted from one point to another, a CDW based on probable cause would suffice to compel Twitter to provide law enforcement with access without having to notify the owners of the targeted accounts.

While this state appellate court’s decision is not binding on sister jurisdictions, it provides perspective on how laws among jurisdictions may differ and offers a preview of what is to come in federal and state arenas.  In light of this recent decision, the key takeaway for electronic communication service companies and social media platforms is that audio and audio-visual data stored on one’s servers is susceptible to law enforcement intrusion, and that the conventional notions associated with wiretapping laws and their restrictions may not apply in Internet and social media contexts.  Social media companies, and those that do business with them, must be able to segregate vulnerable data from employee and customer information; otherwise, even a narrowly-tailored warrant or subpoena could unnecessarily invade their users’ privacy.

Key Takeaways

·  While not directly at issue in the New Jersey Twitter decision discussed above, the NJ Wiretap Act is derived from the Federal Wiretap Act, the ECPA and the SCA.  The Twitter Decision could have troubling ramifications for communications common carriers or social media platforms who have an interest in protecting their users’ correspondence, communications, and privacy.

· “Electronic communication service companies” can include, but are not limited to, companies that provide a medium or platform for sending video and audio messages (e.g., Twitter, Facebook, Snapchat, WhatsApp, Instagram).

· Corporate counsel should be knowledgeable about the type of audio-visual data that is stored on its company’s servers, as this type of data may be more vulnerable to government intrusion under federal and state laws.

· Service contracts with third parties to electronically store audio-visual data should warn of government accessibility regardless of ownership.

 Fernando M. Pinguelo, Esq. (CIPP/US) 

 Daniel P. Sodroski, Esq.

(Click here to download the article)

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Blog Post: Random Acts of KINDness

Click here to view the blog post by committee member Jeri Weschler as she describes her recent experience working with Kids In Need of Defense.
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Upcoming Legal Quick Hit

Date: Tuesday March 28, 2017 at 4:00 PM EST/ 8:00 PM GMT

Title: "The activists are coming! The activists are coming!" How to prepare for the possibility that an activist stockholder seeks influence over your board

Description: Institutional investors holding small but focused positions in public companies are increasingly running aggressive campaigns to influence board decision making. After acquiring relatively small positions in companies, these “activists” often demand substantial concessions from corporate boards, including representation on the board, changes in strategy, and new efforts to sell part of all of a company. This program will describe activist campaigns at a high level, including the legal maneuvering that comes with them, and discuss how corporate counsel can prepare for an possible activist campaign and where to turn if an activist appears.

Speaker: Erik Olson, Partner at Morrison Foerster.

Dial-in: 1-877-647-3411

Passcode: 9834932123

Click here to register!
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Meet William (Bill) Hochul, Legal Quick Hits Co-Chair
Welcome Bill to the Execultive Leadership Team!

William J. Hochul Jr. serves as General Counsel and Secretary for Delaware North, a global leader in hospitality and food service. With over 60,000 employees and operating on four continents, Delaware North is one of the most admired, privately-held companies in the world.  Delaware North also owns and operates businesses involved in gaming, sports, resorts, travel and more.  

As General Counsel and Secretary, Hochul manages the legal function for the company and provides advice and counsel to senior management in all legal matters involving Delaware North or its operating companies. His responsibilities include oversight of the company’s numerous regulatory and legal compliance requirements, along with its vast array of licenses throughout the world.

Prior to joining Delaware North in 2016, Hochul served as United States attorney for the Western District of New York – a position he began in 2010, when the U.S. Senate unanimously confirmed him following nomination by President Barack Obama. Hochul managed a staff of more than 100 attorneys, paralegals, and support personnel while overseeing the prosecution of all federal criminal cases brought within the 17 counties of Western New York. His office also represented the United States in all civil matters brought within the district.

Under Hochul’s leadership, the office successfully implemented numerous strategies, organizational initiatives, and public outreach programs designed to keep the community safe, and also successfully prosecuted crimes involving terrorism, narcotics, the environment, identity theft, and cyber-related offenses. The office’s civil litigation returned hundreds of millions of dollars to U.S. taxpayers. Hochul also served as the chief federal law enforcement official for the area.

Hochul began his legal career as a law clerk to a Maryland Court of Appeals judge, and thereafter joined the litigation section at the Washington office of a large international law firm, where he represented a wide variety of clients in complex civil litigation matters. Hochul joined the U.S. Department of Justice in 1987 as an Assistant U.S. attorney for the District of Columbia before moving to the Western District of New York in 1991. Hochul became chief of the office’s anti-terrorism unit following September 11, 2001, and chief of the national security division in 2006. He served as lead prosecutor in several high-profile international terrorism cases, including the highly successful prosecution of the internationally known Lackawanna Six, the first known instance of Americans traveling to train with al-Qaeda.

Hochul has received well over three dozen awards and honors for his work, including co-recipient of the 2003 Attorney General’s Award for Exceptional Service – the highest award of the U.S. Department of Justice. He served as an adjunct professor at the State University of New York at Buffalo School of Law, Hilbert College and Niagara University, and has also lectured widely, both domestically and abroad, on an extensive variety of topics including anti-money laundering, counter-terrorism, public corruption, rule of law, and more.

Hochul graduated cum laude from the University of Notre Dame in 1981, and earned his law degree from the State University of New York at Buffalo Law School in 1984. Hochul also received recently his mini-MBA from Boston University, Questrom School of Business. Hochul is married to Kathy, the current New York State Lieutenant Governor and a former Member of Congress. 
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Sponsor Highlights

Many thanks to our wonderful committee sponsor, Navigant Consulting for the valuable resources and support they provide throughout the year!
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