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Comment Period for Proposed Amendment to Rule 30(b)(6), Others, Closes February 15

By David Hricik 30(b)(6) depositions are part of the toolkit of any competent patent litigator.  The proposed change would, I think, help with some questions about the rule, but leave others unresolved.  The proposed amendment to Rule 30(b)(6) is below, with the proposed new language not in italics: In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasona...
Tags: Law, Ethics, David Hricik


New Paper on Ethics and Social Media

By David Hricik I’ve long written about ethics and technology (my old paper about email security, I am proud to say, pushed back on the idea that (at least in the 1990s) email was insecure).  For an AIPLA speech I’m giving next month, I wrote a paper on various ethical issues that arise with the use of social media.  It is available here. The issue that I’ve run into a few times now in IP cases is judicial research into facts. I represented people in one of those matters, which was before the OE...
Tags: Law, Social Media, Ethics, Current Affairs, Web/Tech, Weblogs, David Hricik


Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligations

Here is a recent Daily Record column. My past Daily Record articles can be accessed here. ***** Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligation Office water coolers used to be gathering places where people discussed current events and caught up on office gossip. But, like many other time-honored traditions, even water cooler conversations have been affected by technology. Certainly these in-office discussions still occur, but much of the day-to-day discours...
Tags: Facebook, New York, Supreme Court, Law, Court, Social Media, Ethics, Web/Tech, Nopd, Louisiana, Thomson Reuters, Aba, ABA Journal, Gill Pratt, National Guard, Jefferson


"Is a Portland Professor Being Railroaded by His University for Criticizing Social-Justice Research?"

Asks Jesse Singal (at NY Magazine). Excerpt:Last fall, it was revealed that a trio of researchers, the philosopher Peter Boghossian, the mathematician James Lindsay, and the medieval-studies independent scholar Helen Pluckrose, had perpetrated what they viewed as a spiritual successor to the infamous 1996 Sokal hoax: They’d sent out a bunch of ridiculous articles to a number of journals within “grievance studies” fields.... Of the 20 articles the trio submitted, seven were accepted....The resear...
Tags: Law, Ethics, Portland, PSU, Bad Science, Steven Pinker, Jesse Singal, Ann Althouse, Sokal, Boghossian, Peter Boghossian, James Lindsay, Helen Pluckrose, University for Criticizing Social Justice Research, NY Magazine Excerpt


Webinar today on Inequitable Conduct Post-Regeneron

By David Hricik The Intellectual Property Owners Association (IPO) will offer a one-hour webinar entitled “Inequitable Conduct After Regeneron: What Litigators, Patent Prosecutors, and Patent Owners Need to Know” on January 10, 2019 from 2:00 to 3:00 pm (ET).  Kevin Noonan of McDonnell Boehnen Hulbert & Berghoff LLP, and Rohit Singla, Munger of Tolles & Olson LLP and I will discuss the significant ongoing impact of the 2017 Federal Circuit decision in Regeneron v. Merus, which found a patent une...
Tags: Law, Ethics, Federal Circuit, Regeneron, Kevin Noonan, McDonnell Boehnen Hulbert Berghoff LLP, Intellectual Property Owners Association IPO, David Hricik, Merus, Rohit Singla Munger, Tolles Olson LLP


Court denies motion to clarify obligations when making permitted ex parte contacts

By David Hricik The ABA Model Rules and most state rules divide the world into “persons represented by counsel,” who may not be contacted about a matter, and “unrepresented persons,” who may.  Speaking generally, a lawyer may not communicate about a matter with a person who is “represented by counsel” in that particular matter.  See, e.g., A.B.A. Model Rule 4.2.  This is true even if the represented person wants to talk to the lawyer: only the person’s lawyer may consent. If a person is not “rep...
Tags: Law, Court, Ethics, Aba, Fed, Golden, David Hricik, Hoist Fitness Systems Inc, TuffStuff Fitness International Inc, California Code of Professional Conduct, Zwickler


"Now do : large female doctor pushing a stroller with a cat in it."

Link to tweet. [Author: [email protected] (Ann Althouse)]
Tags: Technology, Law, Ethics, Ann Althouse


Matt Whitaker Deciding To Cosplay As A.G. Is How I Imagine Most Blackface Decisions Come To Pass

Whitaker ignored an ethics opinion and pretended to be A.G. anyway.
Tags: Law, Government, Ethics, Department Of Justice, Whitaker, Matt Whitaker, Ethics LOL


GDPR and Requests by EU Clients to be Forgotten

Prosecution for foreign clients presents several ethical issues, and the recently enacted EU General Data Protect Regulation (“GDPR”) presents some fun ones.  In Maryland State Bar Association Ethics Opinion 2018-06 (here), the committee tackled how a firm can abide by an EU client’s request to be “forgotten” — and so delete all records of having represented the client — and  yet after that run conflicts checks to make sure the firm isn’t being adverse to that former client in a substantially re...
Tags: Law, Eu, Ethics, Bob, Bob Smith, Maryland State Bar Association, EU General Data Protect Regulation, Bob Smith Bob


Just in Time for Christmas

By David Hricik Practitioner Robert Moll posted a review of one of my books, this one co-authored with Mercedes Meyer, on ethical issues in patent prosecution. His review is here.
Tags: Law, Ethics, David Hricik Practitioner Robert Moll, Mercedes Meyer


An Interesting Opinion on the Right to Jury Trial that Can Relate to 101 and 285

By David Hricik In the three prior posts (hey, it’s a trend!) on Section 285, I pointed out the need for lawyers to advise principals of patentees that they may, personally, be on the hook for liability for fee shifting.  For example, if the patentee is an asset-less shell corporation, the accused infringer may seek (perhaps should seek, promptly) to join principals of the patentee in the event that the case is found exceptional.  Likewise, given the long-standing line of cases (going back to Ul...
Tags: Facebook, Law, Virginia, Ethics, North Dakota, John Adams, Adams, Harvard Law School, Kirkland Ellis, Brandon, UMKC, Fargo North Dakota, Rader, Strahan, Yale University Press, Sidley Austin LLP


Australian legal ethics (and police) scandal

In more than 300 cases, a defense attorney in the Australian state of Victoria acted as a police informant to undermine her clients’ interests [Chris Vedelago, Cameron Houston & Tammy Mills/Sydney Morning Herald, Houston, Mills & Vedelago/Melbourne Age followup, Rohan Smith/news.com.au on Informer 3838 affair] Tags: Australia, ethics, police
Tags: Law, Australia, Police, Uncategorized, Ethics, Victoria, Rohan Smith, Chris Vedelago Cameron Houston Tammy Mills


More on Fee Awards and Competent Billing and Motion Practice

By David Hricik In my last post, I mentioned being thoughtful about billing records and some other issues about Section 285.  As if on cue, a court issued an opinion which denied an award of some fees because the time had been block billed.  As a result, the court could not determine if the time had been incurred as part of the defense of an exceptional suit or were incurred in a covered business method proceeding which the court had concluded was not within the scope of compensable fees. The ca...
Tags: Law, Ethics, David Hricik, Kinkeade, SAP AMERICA INC, InvestPic LLC


Liability roundup

Big win for scientific rigor in the courts as New Jersey joins 40 other states in adopting Daubert standards for expert testimony, in In re Accutane Litigation [Washington Legal Foundation: Evan Tager and Surya Kundu, Joe Hollingsworth and Robert Johnston] With the long domination of the Florida Supreme Court by its liberal bloc soon to end, is it too much to hope that Florida joins the national trend too? [Evan Tager and Matthew Waring, WLF] California lawyers sue electric scooter companie...
Tags: Florida, Law, Congress, California, Uncategorized, Ethics, New Jersey, James Bond, Autos, Florida Supreme Court, Daubert, Robert Johnston, Cyrus Farivar ArsTechnica, Stephen McConnell, Eriq Gardner Hollywood, Labaton Sucharow


285, Claim Construction and Lessons from Fee Awards

By David Hricik First off, happy holidays to everyone. I’ve had some health issues and have been very intermittent in posting.  Other than getting old (a good thing), I am happy to report that I am fine. Second, a lot has been going on in 285. Long ago, I posted here about how prevailing parties were beginning to try to either (a) join lawyers for the losing party to the case to impose fees against them or (b) simply (somehow) have the lawyers held liable without joining them.  In addition, more...
Tags: Law, Ethics, MicroStrategy, David Hricik, Markman, DataTern


Hey, that's our stuff: Maasai tribespeople tackle Oxford's Pitt Rivers Museum

Western museums are full of plundered objects. So what happened when a Maasai delegation travelled to the UK to discover where their sacred belongings ended up?Around a large table in a bright room in the University of Oxford’s Pitt Rivers Museum, four members of the Maasai tribe from east Africa are inspecting a small object. It has been carefully placed in front of them by a curator wearing special handling gloves. The Maasai say that it is a bracelet, an orkatar. They talk between themselves,...
Tags: Amazon, Art, UK, India, Africa, Religion, Society, UK News, World news, Culture, Canada, Ethics, Art and design, Museums, Sculpture, Anthropology


Hey, that's our stuff: Masaai tribespeople tackle Oxford's Pitt Rivers museum

Western museums are full of plundered objects. So what happened when a Masaai delegation travelled to the UK to discover where their sacred belongings ended up?Around a large table in a bright room in the University of Oxford’s Pitt Rivers Museum, four members of the Maasai tribe from east Africa are inspecting a small object. It has been carefully placed in front of them by a curator wearing special handling gloves. The Maasai say that it is a bracelet, an orkatar. They talk between themselves,...
Tags: Amazon, Art, UK, India, Africa, Religion, Society, UK News, World news, Culture, Canada, Ethics, Art and design, Museums, Sculpture, Anthropology


SDF Podcast 23: Pretty crazy ideas about the Facebook

“The ever-present function of propaganda in modern life is in large measure attributable to the social disorganization which has been precipitated by the rapid advent of technological changes.” This is not the latest comment on the perpetual missteps, mishaps and misuse of Facebook, but a quote from Harold D. Lasswell, eminent media scholar and creator of the eponymous and never-aging model and formula to determine media effects: who says what to whom in which channel with what effect? Who said...
Tags: Facebook, Mark Zuckerberg, Business, Politics, London, Social Networks, Stanford, Germany, Marketing, Communication, Public Relations, Unilever, Society, Blogging, Web, Software


How to use science fiction to teach tech ethics

Science fiction writer/lawyer Casey Fiesler is a maven in the field of tech ethics education (she maintains the of tech-ethics syllabi); she uses science fiction stories as a jumping-off point for her own classroom discussions of ethics in technology. In a fascinating essay for How We Get To Next, Fiesler describes how speculative fiction has given her students the tools to contemplate both the unforeseen potential for harm and for good in different kinds of technology, and to think thro...
Tags: Post, Happy Mutants, Science Fiction, News, Education, Law, Ethics, Engineering, Scholarship, Pedagogy, Computer Science, Casey Fiesler, Tech Ethics


Updated Paper on Conflicts of Interest in Patent Practice

By David Hricik Thought I’d share this paper with you all, which addresses recent cases in conflicts of interest in patent litigation, patent prosecution, and opinion work. And, I’ll be doing a panel for Strafford Publications on December 4, which you can read about here.
Tags: Law, Ethics, David Hricik, Strafford Publications


Round Up: Secure Communication, Cybersecurity, Podcasts for Lawyers, and More

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from October 2018: Check out some secure communication and collaboration tools for lawyers - ABA Journal (October 2018) Product Note: Mixcder E7 Active Noise-Canceling Bluetooth Headphones - ABA GPSolo eReport (October 2018) Asked And Answ...
Tags: Law, Ethics, Web/Tech, Aba, Legal Practice, Daily Record, Law & Technology, NBlack, Web resources


"Freebirth, or home birth without assistance,... has gone from a back-of-the-cab accident to a conscious lifestyle choice."

"In blog posts and viral videos, its adherents extoll the benefits of birthing at home or even in the wild. There are entire podcasts dedicated to freebirthing, with women discussing the 'ecstatic' experience of giving birth in a snowed-in yurt or on a remote Hawaiian island... [T]he Free Birth Society was the largest unassisted-birth page on Facebook before it closed down.... Members rejoiced in each other’s pregnancies, answered each other’s questions, and commiserated over those who didn’t un...
Tags: Facebook, Medicine, Law, Pregnancy, Blogging, Ethics, Lisa, Ann Althouse, Katie Paulson, Patheos Paulson


Buzzfeed News profiles Marc Randazza and explores his high-profile, controversial cases

Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon. The […]
Tags: Law, Ethics, Free Speech, First Amendment, Misc, BuzzFeed News, Marc Randazza, Law Practice, Internet Law


ABA Issues Opinion on Lawyers’ Obligations after Electronic Data Breach

ABA Formal Ethics Opinion 483 (Oct. 17, 2018) is here.  Like many ABA opinions, it provides a useful roadmap to the issues and how to respond to them (and, in this opinion, some good proactive advice).  The opinion addressed the narrow issue of a data breach which results in disclosure of, or destruction of, client confidences as opposed to “ransomware” attacks and the like, where access is denied but the data is not compromised, or access to data is otherwise inhibited or delayed. The first tak...
Tags: Law, US, Ethics, Aba, Electronic Data Breach


Emerging tech: Your bookmark for 2019

“We know from human history that developments in technologies over the centuries, ranging from the Industrial Revolution through to the invention of the automobile, then airplanes and so forth, the landscape of progress is littered with human casualties. People die because of these things being tested.” A provocative statement, the first thing you hear in episode 1 in the third season of the Digital Download podcast that I did with host Paul Sutton last month in which we discussed emerging tech...
Tags: Google, Business, UK, Science, Technology, Hardware, Microsoft, Workplace, Wikipedia, America, Barack Obama, Trends, Siri, Communication, Public Relations, Society


Portus’s suit against Kenyon & Kenyon Dodges Dismissal on Pleadings

Portus filed suit against the now defunct (I think) firm of Kenyon & Kenyon. The complaint has morphed but now alleges, basically, that the firm failed to timely seek PTA and at the time it did so, had a conflict of interest by representing another company in the same “domain.”  The amended complaint is here.  The denial of the motion for judgment on the pleadings is here, from June. It is not clear to me what, if anything, the impact of the alleged conflict is.  The case looks, in some respects...
Tags: Law, Ethics, Foley Lardner, PTA, Kenyon, Kenyon Kenyon, Portus, Kenyon Dodges Dismissal, Vaxxion


A 2012 Connecticut Informal Ethics Opinion that is a Doozy!

Here’s the fact pattern: Company A and Company B each have its own lawyers. They form an agreement whereby Company A is in charge of prosecution, subject to input from Company B.  In a perfect world, the agreement says that Company A gets to pick the lawyers and they only represent Company A (or it says the lawyers represent both Company A and Company B, but it’s clear.  Clarity is good). Assume it says Company A’s lawyers only represent it, but to further a common interest privilege communicati...
Tags: Law, Ethics, Connecticut


Texas Ethics Committee: Unethical to Consult with Potential Expert When Purpose is not to Hire but to Disqualify

The committee was asked if a lawyer could disclose confidential information to a person where there was no substantial purpose other than to preclude the other side from hiring the expert, and held “no.”  Tex. St. B. Prof. Eth. Comm. Op. 676 (Aug. 2018) (here). I’ve had lawyers do this to me, or at least that’s how it seemed, and it’s an irritating but understandable tactic when there’s only a few people in a field who know what they’re doing. But don’t do it!  
Tags: Law, Ethics, Texas Ethics Committee


Should Your Engagement Letters Require Indemnification for 285-Fee Shifting?

As I’ve written, district courts are beginning to hold that if a case is exceptional under 285, fees can be imposed on, not just the losing patentee or infringer, but its lawyers (and principals).  I’ve written before that I have grave doubts this is permitted by the statutory text, and some courts so hold, but others are interpreting 285 to allow for it. (If an opposing party seeks to shift fees onto you under 285 consider the conflicts that it creates, as discussed in my prior posts.) The Utah...
Tags: Law, Ethics, Utah Bar Association, Utah Ethics Advisory Opinion Committee


McKool Smith Prosecution Bar Saga Continues… a year later…

Almost exactly one year ago (here), I explained that McKool Smith had been accused of violating a prosecution bar based upon a disagreement, or misunderstanding, about when the bar-dated ended.  While we do not yet have, “the rest of the story,” (you old folks will get the Paul Harvey reference), in an order dated September 18, 2018, Judge Corley in Eolast Tech., Inc. v. Amazon.com, Inc. (here) shows the matter is still on-going. In it, apparently after McKool and its client produced documents i...
Tags: Law, Ethics, Amazon com Inc, Corley, McKool Smith, Paul Harvey, McKool, McKool Smith Prosecution Bar Saga Continues, Eolast Tech Inc



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