And They'll Guess Your Weight for a Quarter, Too!

Life is full of uncertainty, so I understand the urge to approach Federal courts for anticipatory reassurance when one faces a foggy crossroads.  Who wouldn't like to run to Dad for advice when drunk, grief-stricken Mr. Gower might be putting something bad in the capsules?  Having lately endured the final installment of the Indiana Jones franchise, "Indiana Jones and The Two Hours and Nine Bucks I'll Never Get Back Again," I'd welcome advisory opinions from the Federal bench about movies, restaurants, vacation hotspots, EDD preservation duties and Indian outsourcing.

.

But, alas, our underpaid Federal bench isn't willing to offer advisory opinions (or lifestyle tips), stodgily preferring to adjudicate only real cases and controversies.

Yet, hope springs eternal, and in two recent cases--one shot down and the other due for a sound drubbing--attorneys have headed to court seeking declaratory relief before there was a dispute ripe for litigation.

.

The first, Texas v. City of Frisco, 2008 WL 828055 E.D. Tex. Mar. 27, 2008), involved my home state's efforts to be relieved of electronic evidence preservation obligations precipitated by a pre-litigation preservation demand from the City of Frisco.  Fearing it might get the preservation porridge too hot or too cold, the State wanted the court to say how much preservation was just right long before anyone paid a filing fee for the latent litigation.  Wisely, Magistrate Judge Bush declined to venture down that slippery slope of advisory opinion and simply instructed the parties to act in good faith. 

.

The City of Frisco case is merely the e-discovery pivot point from which to segue to discussion of a newly filed dec action that smacks of being an attention-seeking waste of scarce judicial resources. 

.

While the State of Texas in the City of Frisco case was grappling with hard choices that would subject it to substantial and immediate expense, it's harder to discern a substantial controversy of immediacy and reality in Newman McIntosh & Hennessey, LLP v. Hon. George W. Bush, Acumen Legal Services (India) Pvt., Ltd. and John Doe, Esq and Jane Doe, Esq.  It just seems...so...trumped up. 

.

The gist of it is that NMH, the pro se plaintiff law firm (red flag), was approached by Acumen, a company based in India that offered litigation support services.  NMH didn't purchase Acumen's services but instead sued the Indian company, all U.S. lawyers who might be its customers (hence the Does, Esquire) and (naturally) the President of the United States, contending that the law firm was entitled to declaratory and injunctive relief from the Bogeyman that, if it used Acumen, its clients'™data (lacking 4^th Amendment protection) might be monitored by the United States government as it moved to and from India.

Here, I very much want to whisper, "Encryption" into someone's ear, but I suspect no one is looking very hard for easy answers.

.

Now, I don't know what drives lawyers to file something like this.  Indeed, it could be a sincere concern for our Constitutional prerogatives.  Or, it could be an effort to protect lucrative practices against incursions by smart competitors who, heeding Tom Friedman and taking a page from the corporate playbook, are lowering costs by using offshore talent.  Or it could be that the firm has clients whose interests are served by drawing attention to the "risks" of using offshore support.  Whatever the reason, it has a bad smell about it--a whiff of grandstanding and the scent of publicity hound in a case that will likely be summarily dismissed as not ripe for adjudication. 
.

Thanks to K&L Gates' splendid ediscoverylaw.com blog for hosting the embedded links to the filings.

Comments

[Russell Smith]

The motion to dismiss the lawsuit in NMH v. Bush can be found at
http://www.sddglobal.com/Acumen_SDDGlobal.pdf

Here's a summary:

WASHINGTON, D.C. , August 15, 2008 — In a closely-watched legal case, apparently designed by a U.S. law firm to place roadblocks in the way of the fast-growing legal services outsourcing industry in India, the Indian lawyers are fighting back. Newman McIntosh & Hennessy (“NMH”), a U.S. law firm worried about off-shoring of legal work, sued India-based Acumen Legal Services, along with U.S. President George Bush, in the Washington D.C. federal court. In response, Acumen today filed a hard-hitting motion to dismiss.

NMH is suing on the basis of speculation, unsupported by even a single example, that the U.S. government is intercepting all or most of the data sent by U.S. lawyers to foreign legal outsourcing providers, as part of an anti-terrorism campaign. Seizing on that speculation as an excuse, NMH seeks a court order against “all United States-based attorneys” who outsource legal work to India, and “all foreign legal outsourcing providers.”

Thanks to a motion to dismiss and supporting legal brief researched and drafted entirely in India, the NMH law firm is getting an unexpected taste of the kind of high-quality legal work that Indian lawyers can provide, even in the Washington D.C. federal court. In their brief on the motion to dismiss, the legal team for Acumen points out the following:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition. The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad. NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, including in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

In addition, by requesting the Court to issue declarations answering seven hypothetical legal questions, purportedly because the NMH law firm “need[s] guidance,” wants “to gain certainty,” and “must understand” various points of law to help the firm “in an increasingly globalized legal services environment,” NMH seeks relief that is impermissible under well-established principles governing declaratory judgments. The NMH lawyers, in essence, are seeking to outsource their legal research tasks to this Court, and secondarily to Acumen, President Bush and their respective counsel.

NMH’s Complaint is extraordinary, not only for what it contains, but even more so for what it does not. Nowhere in the Complaint does NMH allege:

-- any example of an actual or impending injury to itself or to anyone;

-- any actual or impending violation of Fourth Amendment rights;

-- any instance of an actual or impending waiver of Fourth Amendment rights;

-- any basis for finding a waiver of Fourth Amendment rights, given that NMH does not allege that any Fourth Amendment rights are being violated by the supposed government interception of data;

-- any instance of an actual or impending breach or waiver of attorney-client privilege or confidentiality;

-- any actual or impending example of government interception of data;

-- any actual or impending instance of transmission of data to any foreign nationals by anyone;

-- any basis for NMH’s speculation that electronic transmissions to foreign nationals are more likely to fall into the hands of the government than are domestic transmissions, which are subject to possible domestic surveillance by law enforcement agencies;

-- any examples of actual or impending conduct within the District of Columbia by any of the parties;

-- any relationship or interaction of any kind among any identified persons or entities in the District of Columbia or anywhere else, except for the unsuccessful solicitation sent by Acumen in India to NMH in Maryland;

-- any monetary dispute or requested monetary relief that could support the “amount in controversy” requirement for NMH’s assertion of diversity jurisdiction;

-- any legal or factual basis upon which this court could grant the sweeping declaratory and injunctive relief sought against millions of non-parties, such as every lawyer in the United States, and every foreign legal outsourcing company;

-- any reason why NMH cannot avoid the speculative dangers it alleges by simply (a) continuing to refrain from using foreign legal outsourcing providers, and (b) seeking a protective order in any litigation where NMH believes that its clients’ data may be sent by adversaries to such providers;

-- any legal or factual basis upon which the court could require the Executive Branch to “prevent the waiver of Fourth Amendment rights” or “safeguard the attorney-client privilege and client communications and client confidences and secrets;” or

-- any reason why protection is needed beyond the statutory protection already provided by Congress, under which “[n]o otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the [applicable government surveillance provisions] shall lose its privileged character.” See e.g. 18 U.S.C. § 2517(4); 50 U.S.C. § 1806(a).

In short, as further discussed in the remainder of this brief, NMH has not come close to meeting the most basic requirements for standing or personal jurisdiction.