quasi in rem

Thursday, May 13, 2004

Creative googlers indeed(lvHB) Howard links to this article in CNEt which points to the fact that Googling has started become the status quo amongst federal judges.

"A federal judge last November threw out Manuel Rodriguez's conviction and granted him a new trial after discovering evidence of potential jury tampering in a review of court records and queries on Web search engine Google. U.S. Magistrate Judge Frank Maas said that his review of the 1988 court transcript, coupled with looking up jurors' names in Google, had revealed that the assistant district attorney had 'improperly' removed Hispanics. "

As a former clerk I can admit to using Google to find extra-record facts on several occassions to pinpoint addresses, find out facts on media sensitive cases, find other circumstances similar to the case at hand. It was a truly useful tool for finding those sort of factrs that the trila court would have simply taken judicial notice of at the time of trial. At no time however did the results in any way shape the outcome of the case but they often gave some more background information that was not necessarily included in the record.

One glaring case that is missing from the article is the recent Partial Birth Abortion evidentiary decision from the Seventh Circuit which I discussed here.

I'll just reprint what I noted then:

There are many fascinating aspects to the opinion in Northwestern Memorial v. Ashcroft but one of the more interesting ones is how Google.com seems to have lowered the bar for undue burden in discovery issues relating to the privacy concerns of plaintiffs and other individuals involved in lawsuits.

Judge Posner states in the opinion:

"Some of these women will be afraid that when their redacted
records are made a part of the trial record in New York,
persons of their acquaintance, or skillful “Googlers,” sifting the
information contained in the medical records concerning each
patient’s medical and sex history,will put two and two together,
“out” the 45 women, and thereby expose them to
threats, humiliation, and obloquy."

Is this the first time that Google itself has been singled out as a otuside force on the law that changes the math when comparing the burden on an individual's privacy interest? (ed. obviously not...)

Has technology changed the way these evidentiary issues should be weighed by Judges and if so, should the Rules Committee look into it? (ed. clearly they must.)

Should the "skillfull googlers" standard be the standard that Federal Judges apply when bancing privacy concerns?(ed. I sure hope not.)

I don't know right now, but in this dawning information age, I cannot imagine that any possible information released might fall into this category. The "skillfull googlers" level is really quite high a level for protection purposes. Believe me, EVERYTHING is out there. And as more and more organizations create extra/intranets to handle all of their data, the level and type of information available will expand exponentially.

(On the other hand, I still can't find out who atrios is despite heavy Googling. Then again male substitute gym teachers with an advanced degree who moved to Philadelphia to teach in the past two years from Orange County, live in a downtown apartment, and own two cats, no kids, attend Hoeffel meetups and married a woman who was raised in a foreign country are not a heavy web presence...)

I think Judge Posner may erred in this case based on the other safegaurds in place in terms of the handling of the material, which is detailed in the fine dissent by Judge Manion.

By the way, this is not the first time that evolving technology has change aspects of federal appellate law, even as it applies to the dissenting judge, Judge Daniel Manion.

"In the Washington Post, July 30 1986, pg A-23, columnist James J. Kilpatrick discussed the nomination and confirmation of Daniel Manion as appellate judge. Manion had been taken to task by some in the Senate as not qualified to be an appellate Judge due to several errors that had been found in briefs that he had filed in court as a private practitioner. Kilpatrick stated at that time:

"In sum, I fear not for the republic, or for the 7th Circuit, when
Manion joins the club. Give him an intelligent clerk and a good word processor, and the gentleman may look forward to many happy years on the bench."

Artificial intelligence, aka a word processor, to supplement the skills of an otherwise well qualified man. It turns out that Kilpatrick was more correct than even he knew. All the Judge really needed was the word processor.


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