HerringLaw: Civil Rights & Discrimination Law in Iowa

Iowa Civil Rights Act Deadline changed

The Iowa Legislature passed and Governor Culver signed into law SF 2292 which was a bill extending the length of time a person has to submit a complaint of a discriminatory or unfair practice to the Iowa Civil Rights Commission. Previously it was 180 days, but as of July lst [when the law will go into effect] the new timeframe is 300 days, in line with the federal timeline.

Of course, pushing deadlines is not a good idea, but it does allow more time for complainants to perhaps work out a resolution and also to gather evidence to support the complaint.

eDiscovery in Iowa

I have wondered whether Iowa's state laws might also embody the ideas behind the federal eDiscovery rules now found in the Federal Rules of Civil Procedure and found a blogsite which compiles the current state of state law requirements mirroring the federal provisions on eDiscovery, only to find nothing listed for Iowa. 

Watch your FaceBook and MySpace

If you or your clients are prone to letting it all hang out in various social networking sites [younger people gravitate to LiveJournal, MySpace and FaceBook, but there are plenty of places for adults and professionals to make connections] a word of caution: Everything you do and say can, and will, be held against you.

An interesting piece in Law.com's Legal Technology page by Vesna Jaksic explores how lawyers from either side of litigation can put their data-mining skills to good use.

Just as lawyers should always Google their clients for whatever the web will turn up on them, now we should expand those searches to social networking sites. And with the eDiscovery Rules in full bloom, knowing all the websites and email address of clients [and witnesses] is essential.

Is temporarily stored data in RAM subject to eDiscovery?

An interesting case from California was discussed in Law Technology Today involving whether the e-Discovery rules of the Federal Rules of Civil Procedure reach beyond the typically understood types of digital data [e.g., on harddrives, on backup drives, etc.] to the RAM [random access memory] which holds digital data only temporarily. Because of the realities of BitTorrent's file-sharing protocol, the MPAA had to sue on a theory of 'contributory infringement'. And to prove that, the MPAA needed evidence which was stored for only six hours in the RAM of the server. Thus, the quesiton under the Federal Rules is whether this data is "electronically stored information". Because the evidence could only be obtained through preserving and producing the RAM logs and from nowhere else, the magistrate ordered TorrentSpy to preserve and produce those logs. The full discussion at LTT is well worth reading for the details.

An appeal was filed and was heard in mid-August. The magistrate's decision was upheld and the judge adopted a broad reading of "electronically stored information" and upheld the earlier ruling. The positions of the contending parties and the district court's decision is fully discussed at the e-Discovery Team blog.

Private EMails of Employees may no longer be so

A friend recently provided me with the link to a very interesting article pointing out that in some situations employers with employees who not only use their business accounts but also personal accounts to deal with business matters may subject not only the business email accounts but also personal accounts to discovery and review in litigation.   Writing in the  New York Law Journal, Christopher Boehning and Daniel Toal discuss in some detail their research in:  Caution: Private E-Mails Might Turn Public.

The Federal Rules of Civil Procedure [and many state rules] require people and businesses receiving a subpoena or request to produce documents to locate and produce all responsive documents in its "possession, custody or control".  FRCP 26(b), 34(a).  When an employee uses his or her personal account to conduct business, whether it's because they're off on vacation or finishing up loose ends at home, that not only obligates the employer and the employee to respond with relevant business emails but also, sometimes, with access to personal email accounts as well.  As the authors note this blurring has occurred in the political realm as well: 

"The White House and its staffers were subjected to criticism and scrutiny for their use of non-governmental e-mail accounts and BlackBerrys in connection with official business; New York Governor Eliot Spitzer's aides' personal e-mail accounts have been targeted for communications concerning the investigation into the Senate majority leader; and New Jersey Governor Jon Corzine recently declared that he would stop using e-mail entirely in response to legal requests for private e-mails between the governor and his ex-girlfriend."

So, the caution for both employers and employees is to be prepared to preserve and provide not only business email accounts and information but also personal accounts where there has been a co-mingling.  Given the ubiquitous use of email these days for business communication not matter where one is, it's a safe bet that some co-mingling has occurred and legitimate discovery requests will have to be met with full disclosure.

Disclosures in E-Mail, fairly meaningless

Sure, we see them all the time but are they at all controlling? An interesting blog comment by Carol Shepherd, at Arborlaw makes a good point that they hardly bind the email sender or recipient. As she summarizes, "In most cases where email disclaimers and similar boilerplate language are being deployed, the language is presented to the other party after the fact. Even in a case where the parties do intend to form a contract, the common law and the Uniform Commercial Code (UCC) are clear that terms supplied after a contract has already been formed do not automatically become part of the contract." The full post is well worth reading to figure out how best to protect the confidential information you share with others.

As for my method, I don't have a disclosure. I have a provision in my fee agreement and in my initial client communication that explains: "Because of what I am pointing out in paragraph 1, I put in the subject line of all my email communications "CONFIDENTIAL - [the client's last name, in caps also]". This way, we can easily separate any communications between us in case a legitimate request is made for digital information. Of course, we do not need to communicate by email, but it is frequently the most efficient and effective. I leave the choice to do so up to you. " In my email program [primarily Eudora, still] I have stationary for each confidential relationship which I can select and use each time I have to send something. And the emails to and from the client are filtered into that client's email mailbox.

How to deal with Junk Faxes

I was researching something recently regarding Junk Faxes and found this helpful website.

A helpful freebie from Findlaw for lawyers

I was reading one blog, then clicked and went to another and kept on moving and came across this 'tool' that might be of use and interest to lawyers dealing with e-Discovery issues, Wizard: The Electronic Discovery Rule Wizard at Findlaw.

e-Discovery a Trap for Lawyers and Clients

As many/most lawyers know, the Federal Rules of Civil Procedure were recently amended to provide for methods of handling the discovery of digital information. In the 'old' days [and at present, still] the main place discoverable information resided was in paper records filling a plethora of filecabinets. However, over the years companies and to a lesser extent, individuals, have begun storing information in a digital format on a computer, harddrive, tape system or some other such storage method. Now, if a lawsuit is filed in federal court [and even before that once the litigants are aware of possible litigation] both parties have to retain and be able to provide access to discoverable information in whatever form it is. An article which I read recently at ABANet.org discussed some of the pitfalls and steps that need to be taken in that case: Document Collection.

While this article at times does seem to be more marketing in nature, and perhaps oriented toward the concerns of a defendant, it is helpful in pointing out some of the issues that lawyers and parties in federal court litigation will face: Is there a data retention policy and is it followed? Where are all the versions and copies of the discoverable data stored? How do you pull out legitimately non-discoverable materials from a huge group of documents? How do you identify documents so they can be found down the road?

There are many more issues present under the new Rules and it will take some time to work them out, but starting to think about where all your digital data is would be a good idea for everyone. Both in case you become involved in litigation and because a rational back-up structure is required as well. Nothing lives forever, even digital data.

Injunctive Powers of the Iowa Civil Rights Commission

In a decision reached in March 2007, the Iowa Supreme Court confirmed that the Iowa Civil Rights Commission had broad powers to prevent and remedy discrimination in housing. In State v. Burch, the Court ruled that the judge correctly awarded damages, a civil penalty and a permanent injunction, although the court narrowed the reach of the injunction. This is not the first time the Supreme Court has recognized the Commission’s ability to obtain injunctions in civil rights cases. See Downs v. Board of Trustees of Police Retirement System, 312 N.W.2d 563 (Iowa 1981) and Iowa Code § 601A.5(4)(2005). But this is the most recent discussion of why the power is an important one for the Commission to have.

[all images © Victoria L. Herring]