The VLW Blog

Spam, i.e., unwanted e-mail, won’t go away. At least the spammers are getting funnier.

Check out your spam filter some time to see what’s been blocked. Use the same care and caution you’d use when opening a full trash can that’s been sitting out in the summer sun a few days. You can’t be sure what’s in there.

Okay, quickly delete the usual enhancement product items and anything that mentions Lindsay Lohan or Britney Spears.

Don’t bother to ponder how “Christian debt consolidation” differs from heathen bankruptcy.

Ignore the items with insults in the message line: “Hey [your name] you look pretty stupid.”

Some spammers have a new tactic in their efforts to get you to open their messages: humor. In the past month, my spam filter caught all of the following items, which come in the guise of a phony news alert:

“Three Italian college students purchase Kansas City Royals for 500 euros.” With their record, you’d believe it.

“Stonehenge was ‘Part of Crazy Golf Course for Giant Race of Humans.’” And the English Channel is a water hazard?

“Bush sells Louisiana back to France.” Here’s hoping he got a good price.

And my personal favorite:

“Led Zeppelin’s Stairway to Heaven not up to code.” Now there’s a premises claim in the making….

By Paul Fletcher

A tourism PR director who says he was fired for sending e-mails to various state officials cannot sue those officials for his termination, the 4th U.S. Circuit Court of Appeals said yesterday in ruling on the director’s civil rights suit.

Public relations director L. Meriwether German worked for the Shenandoah Valley Travel Association, a private non-profit that promotes tourism in the Valley. When members of the association complained to German about the temporary relocation of an Interstate 81 welcome center, German fired off a series of e-mails with the SVTA signature block to a Virginia state senator, a VDOT employee and to Alisa Bailey, president of the Virginia Tourism Corporation, a state agency.

In his suit under 42 U.S.C. § 1983, German alleged that state employee Bailey, who was unhappy with the e-mails, coerced private actors into firing him. She allegedly told German’s boss to get him to “back off.”

Private action sometimes can be attributed to the state, the 4th Circuit said in its unpublished per curiam opinion in German v. Fox. But even when a private entity is heavily regulated by or receives funding from the state, that relationship doesn’t necessarily translate into state action.

German could not show that Bailey, despite her alleged close connection with his superiors, ordered that German be fired, or that she wanted or expected him to be fired, the 4th Circuit said. It upheld U.S. District Judge Glen Conrad’s dismissal of the suit.

Any “grace period” litigators have had since the new e-discovery rules went into effect in December 2006 may be coming to a close.

“Courts are becoming increasingly intolerant of e-discovery errors and omissions,” says Jeane Thomas, a Washington D.C. lawyer and expert on e-discovery. Thomas was on a panel program June 15 at Virginia Beach presented by the Intellectual Property Law Section of the Virginia State Bar.

“We’re getting to the end of any grace period,” and seeing more monetary sanctions and adverse inference rulings or preclusion of evidence, Thomas said. “In a few instances, default judgments have been entered. The costs can skyrocket. … Sanctions are not reserved for deliberate misconduct.”

Eastern District U.S. Magistrate Judge Thomas Rawles Jones Jr. describes the e-discovery rules not as a sea change, but as a “useful additional set of traffic rules.” Jones said courts have been “seeing people still unprepared, but not really seeing the consequences. We’re reaching the time right now” when people can expect to see consequences for failure to comply.

As parties figure out how to use the new rules tactically, motions practice will increase, the panel predicted.

What else is hot?

“Text messages and instant messages are becoming the new area to search for ‘smoking guns,’” Thomas said. “A lot of people have gotten better about writing e-mails, but IMs are now a new area of focus. People are typing back and forth and then when they close the box,” they may think the data disappears. “Not always,” she said. It could be linked into an office system or backed up on a provider’s server.

Any “grace period” litigators have had since the new e-discovery rules went into effect in December 2006 may be coming to a close.

“Courts are becoming increasingly intolerant of e-discovery errors and omissions,” says Jeane Thomas, a Washington D.C. lawyer and expert on e-discovery. Thomas was on a panel program June 15 at Virginia Beach presented by the Intellectual Property Law Section of the Virginia State Bar.

“We’re getting to the end of any grace period,” and seeing more monetary sanctions and adverse inference rulings or preclusion of evidence, Thomas said. “In a few instances, default judgments have been entered. The costs can skyrocket. … Sanctions are not reserved for deliberate misconduct.”

Eastern District U.S. Magistrate Judge Thomas Rawles Jones Jr. describes the e-discovery rules not as a sea change, but as a “useful additional set of traffic rules.” Jones said courts have been “seeing people still unprepared, but not really seeing the consequences. We’re reaching the time right now” when people can expect to see consequences for failure to comply.

As parties figure out how to use the new rules tactically, motions practice will increase, the panel predicted.

What else is hot?

“Text messages and instant messages are becoming the new area to search for ‘smoking guns,’” Thomas said. “A lot of people have gotten better about writing e-mails, but IMs are now a new area of focus. People are typing back and forth and then when they close the box,” they may think the data disappears. “Not always,” she said. It could be linked into an office system or backed up on a provider’s server.

Is using your office e-mail with its signature stamp the same as using office letterhead?

Should anyone down a chain of distribution that you can’t control assume that your e-mail speaks for your employer?

Office e-mail comes pretty close to company letterhead, according to one federal judge who considered the question in an unpublished opinion in Bowers v. Rector and Visitors of the University of Virginia (VLW 007-3-092), a case that has generated some buzz in Charlottesville over the past two years

“The law on the use of office e-mail systems is in its infancy,” said U.S. District Judge Norman K. Moon. He drew on precedent involving more traditional modes of communication to dismiss the First Amendment suit filed by Dena Bowers, a former employee of the human relations department at U.Va.

Bowers had used her university e-mail account to send a coworker and fellow NAACP member documents generated by that group that purportedly were critical of a university restructuring proposal. The e-mail was successively forwarded and ultimately went to hundreds of people, according to the court opinion.

The university contended that Bowers had been less than cooperative in helping to clear up the matter, and several weeks later it fired her.

In deciding how much protection the law afforded Bowers’ speech, Moon said his most serious concern arose “from the use of the signature or ‘stamp’ at the end of the e-mail that identified the sender” as a university HR employee.

Moon said that although Bowers “was not officially authorized to speak for the University, her e-mail misled others into thinking that she was,” and the court had to “hold her to the standards of those who are actually permitted to speak for government agencies: she must stick to the party line or face discipline,” Moon wrote.

“[N]obody would think to use University letterhead for personal messages, and e-mail signatures like the one in this case resemble official letterhead closely enough that the two should be treated the same way,” the judge said.

Bowers’ associational claims were not so easily dismissed, Moon wrote.

She “was justified in defending her rights and those of her fellow opponents of University restructuring by refusing to answer questions about the sources of data and preparation of her e-mail attachments.” But the associational right Bowers asserted was not clearly established, so the defendants were entitled to qualified immunity, Moon ruled.

Bowers has noted an appeal.