Program Coordinator/Moderator:
Charles L. Mudd Jr., Mudd Law Offices, Chicago

agenda

8:55 – 9:00 a.m.  Welcome and Introduction
Charles L. Mudd Jr., Mudd Law Offices, Chicago

9:00 – 9:45 a.m.  When Do You Need an Attorney?
You want to begin a startup or jump into entrepreneurship, but time and money are limited. You may think to handle some of the legal issues yourself. But some early do-it-yourself tasks can have costly or even business-fatal consequences – making it important for you to know when you need an attorney and when you do not. This segment provides guidance on when a startup, founder, and/or entrepreneur needs an attorney, what one can safely do without the assistance of an attorney, and how your characteristics can impact the decision.
Daniel Kegan, Kegan & Kegan, Ltd., Chicago

9:45 – 10:30 a.m.  What You Should Know About Copyright & Trademark
Any startup will likely begin with a name and branding concerns. Moreover, content in the product description, code, or other creative output will need to be protected through copyright.  This presentation discusses basic concepts for entrepreneurs, founders, and startups to consider as they move forward with launching their business.
Joseph T. Nabor, Fitch, Even, Tabin & Flannery, LLP, Chicago

10:30 – 10:45 a.m.  Break (beverages provided)

10:45 – 11:30 a.m.  What are Patents and When Do You Need One?
Get the information you need to know about patents, what you can do yourselves, and when you need an attorney.  Topics include: understanding what a patent is, patent licensing issues, patent issues that can arise in business transactions, and patent litigation.
Eugene F. Friedman, Friedman & Friedman, Ltd., Chicago
Christopher J. McGeehan, McGeehan Technology Law, Ltd., Chicago

11:30 a.m. – 12:00 p.m.  You Can’t Just Call It “Trade Secret”: Understanding Trade Secret Protection
As a possible alternative to patents and to protect the confidential nature of business information, you may consider trade secrets; however, one cannot obtain protection by simply calling information a “trade secret.” Join us for this informative presentation and discover the steps needed to establish a viable argument for trade secret protection.
Stephanie M. Snyder, Mudd Law Offices, Chicago

12:00 – 1:00 p.m.  Lunch (on your own)

1:00 – 1:30 p.m.  Privacy, Internet, Data Protection, and EU Considerations
This comprehensive overview examines a number of privacy issues a startup must consider – from the privacy interests in directing the products and services to the consumers, to employing individuals and expanding outside the geographical boundaries of the startup’s home country.
Theresa V. Johnson, Law Office of Theresa V. Johnson, Westmont

1:30 – 2:00 p.m.  Politics and Non-Disclosure Agreements: Balancing Trade Secrets with Business Development
Many entrepreneurs and startups begin with concepts and ideas believed to be proprietary and novel.  With this belief, many founders and entrepreneurs either want to share all of their ideas with everyone or share the ideas with no one absent an agreement maintaining confidentiality (Non-Disclosure Agreements or NDAs).  Attorneys often will counsel clients to refrain from disclosure until a signed NDA is in hand.  However, requests for NDAs must be timed properly.  Too soon, and business opportunities will quickly evaporate.  Too late, and your ideas may find themselves leaving you behind.   This presentation will address these issues in discussing how to navigate the political aspects of using NDAs. 

Charles L. Mudd Jr., Mudd Law Offices, Chicago

2:00 – 2:45 p.m.  Choosing the Best Business Structure
All startups must determine what form of legal entity will best suit the needs of the startup and its focus. In this session, the speaker addresses important considerations in determining which entity should be employed to facilitate the startup objectives.
William A. Price, Growth Law, Warrenville

2:45 – 3:00 p.m.  Break (refreshments provided)

3:00 – 3:45 p.m.  Labor and Employment Considerations
Gain a better understanding of which labor and employment issues are important for you to consider. Topics include: asking the right questions when trying to hire the right person for the job; documenting the terms and conditions of employment and keeping legally-required records on file; understanding exempt vs. non-exempt employees regarding overtime and complying with wage payment laws; knowing how the employment area is regulated by OSHA standards and other administrative agencies; and the consequences of failing to train managers and supervisors.
Richard A. Russo, Davis & Campbell LLC, Peoria

3:45 – 4:30 p.m.  Small Business Innovative Research (“SBIR”) Program
Funding and resources need not only come from angel investors or venture capitalists. This segment discusses the Small Business Innovative Research Program (SBIR) as a unique resource for your startup!
Alan R. Singleton, Singleton Law Firm, P.C., Champaign

4:30 – 4:45 p.m.  Closing: Ethical Business & Legal Practice among Startups*
This brief overview promotes best practices among startups and their attorneys.
Charles L. Mudd Jr., Mudd Law Offices, Chicago

Non-Lawyer (No discounts apply):

$290, if received by ISBA prior to Wednesday May 01, 2013

2013-04-02 Transcript

1

1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

3 HONORABLE OTIS D. WRIGHT

4 UNITED STATES DISTRICT JUDGE PRESIDING

5 – - -

6

Ingenuity 13 LLC,                )

7 PLAINTIFF,                             )

)

8 VS.                                    ) NO. CV 12-8333 ODW

)

9 John Doe, et al.,                      )

DEFENDANT,                             )

10 ___________________________________   )

11

12

13 REPORTER’S TRANSCRIPT OF PROCEEDINGS

14 LOS ANGELES, CALIFORNIA

15 TUESDAY, APRIL 2, 2013

16

17

18 _____________________________________

19 KATIE E. THIBODEAUX, CSR 9858

U.S. Official Court Reporter

20 312 North Spring Street, #436

Los Angeles, California 90012

21

22

23

24

25

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

2

1  APPEARANCES OF COUNSEL:

2

3  FOR RESPONDENT GIBBS:

4  WAXLER CARNER BRODSKY LLP

BY: ANDREW J. WAXLER

5  -and- BARRY BRODSKY

1960 E. Grand Avenue

6  Suite 1210

El Segundo, CA 90245

7

8

9  FOR DEFENDANT:

10 THE PIETZ LAW FIRM

BY: MORGAN E. PIETZ

11 3770 Highland Avenue

Suite 206

12 Manhattan Beach, CA 90266

13 -and-

14 NICHOLAS RANALLO LAW OFFICES

BY: NICHOLAS R. RANALLO

15 371 Dogwood Way

Boulder Creek, CA 95006

16

17

18 FOR RESPONDENTS DUFFY, VAN DEN HEMEL & PRENDA LAW:

19 KLINEDINST LAW OFFICES

BY: HEATHER ROSING

20 -and- PHILIP W. VINEYARD III

-and- DAVID M. MAJCHRZAK

21 501 W. Broadway

Suite 600

22 San Diego, CA 92101

23

24

25

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

3

1  APPEARANCES: (Cont’d)

2

3  FOR RESPONDENT HANSMEIER:

4  BAKER, KEENER & NAHRA LLP

BY: PHILLIP A. BAKER

5  -and- DANIEL PATRICK LEONARD

633 West Fifth Street

6  Fifty-fourth Floor

Los Angeles, CA 90071

7

8  FOR RESPONDENT STEELE:

9  MURPHY, PEARSON, BRADLEY & FEENEY

BY: THOMAS P. MAZZUCCO

10 -and- TIMOTHY J. HALLORAN

88 Kearny Street

11 Tenth Floor

San Francisco, CA 94108

12

13

14

15

16

17

18

19

20

21

22

23

24

25

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

4

1 LOS ANGELES, CALIFORNIA; TUESDAY, APRIL 2, 2013

2 10:00 A.M.

3 – - – - -

4

5

6 THE CLERK: Calling Item No. 1, CR 12-8333, ODW,

7 Ingenuity 13, LLC, versus John Doe, et al.

8 Counsel, please state your appearances.

9 MR. PIETZ: Morgan Pietz, P-I-E-T-Z, for the

10 putative John Doe defendant in 12-CV-8333.

11 MR. RANALLO: And Nicholas Ranallo for the same

12 Doe.

13 THE COURT: Morning, counsel.

14 MR. WAXLER: Andrew Waxler and Barry Brodsky, both

15 for Brett Gibbs who is here today.

16 THE COURT: By the way, thank you for your

17 submittal with respect to your efforts to effect service.

18 Thank you.

19 MR. BAKER: Phil Baker and Dan Leonard specially

20 appearing for Paul Hansmeier.

21 MR. LEONARD: Morning, your Honor.

22 MR. BAKER: And he is present today.

23 THE COURT: Where?

24 MR. BAKER: Mr. Hansmeier, will you stand up.

25 THE COURT: Front row.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

5

1 MR. HALLORAN: Morning your Honor. My name is Tim

2 Halloran, Thomas Mazzacco on behalf of John Steele who is

3 also present.

4 THE COURT: Mr. Steele.

5 MR. STEELE: Yes.

6 MS. ROSING: Morning, your Honor. Heather Rosing

7 with Klinedinst PC with my colleagues Phil Vineyard and

8 Dave Majchrzak appearing on behalf of Paul Duffy, Angela

9 Van Den Hemel and Prenda Law, and Mr. Duffy and

10 Ms. Van Den Hemel are in the audience today.

11 THE COURT: Thank you.

12 Is that it?

13 MR. BAKER: Your Honor?

14 THE COURT: Yes.

15 MR. BAKER: There are other individuals pursuant

16 to your order here. They are not represented.

17 THE COURT: Mark Lutz?

18 MR. BAKER: Yes, he is present.

19 MR. LUTZ: Yes.

20 THE COURT: Mr. Lutz, welcome, sir. Did Alan –

21 well, do we have an Alan Cooper? Any Alan Cooper?

22 (No response.)

23 THE COURT: All right. Peter Hansmeier?

24 MR. HANSMEIER: Yes, your Honor.

25 THE COURT: Good morning, sir.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

6

1 MR. HANSMEIER: Morning.

2 THE COURT: Any representatives of any other

3 representatives of Prenda Law, Livewire Holdings, AF

4 Holdings other than Mr. Lutz, Ingenuity 13 other than

5 Mr. Lutz and 6881 Forensics, LLC.

6 MS. ROSING: Mr. Duffy is appearing on behalf of

7 Prenda Law, your Honor.

8 THE COURT: All right. Here is my interest, and

9 we can proceed in any way that seems to make sense. I am

10 pleasantly surprised that we have everyone here.

11 Otherwise, I was going to be forced to draw reasonable

12 inferences from the facts as I know them.

13 It should be clear by now that this court’s

14 focus has now shifted dramatically from the area of

15 protecting intellectual property rights to attorney

16 misconduct such misconduct which I think brings discredit

17 to the profession. That is much more of a concern now to

18 this court than what this litigation initially was about.

19 Mr. Steele — well, let me do it this way. I

20 have questions of Mr. Steele. Mr. Steele can choose to

21 answer those questions or not. The same applies for

22 Mr. Duffy and Mr. Hansmeier.

23 Now, as the attorneys, how do you all propose

24 we proceed?

25 MR. BAKER: May I take the podium, your Honor?

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

7

1 THE COURT: Well, actually, we don’t have one, but

2 we do have a lecturn and you are free to use it.

3 MR. MAZZUCCO: Thomas Mazzucco on behalf of

4 Mr. Steele.

5 Your Honor, in light of some of the

6 information that was in the transcript of March 11th,

7 2013 in this courtroom and some of the concerns that this

8 court has mentioned, at this point in time, if Mr. Steele

9 is called to testify, he is going to exercise his Fifth

10 Amendment privilege against forced testimony.

11 And we state for two reasons, one, there were

12 serious allegations made by the court and others of not

13 just attorney misconduct but the word fraud was used

14 several times in the transcript.

15 THE COURT: Should have been.

16 MR. MAZZUCCO: The next step is there is also an

17 issue involving attorney-client privilege. If Mr. Steele

18 was to testify, that privilege belongs to the client.

19 THE COURT: Which client might that be?

20 MR. MAZZUCCO: That would be several of his

21 clients. Mr. Halloran is going to handle that part of

22 the argument, but that is a two pronged argument, your

23 Honor.

24 THE COURT: Are you talking about AF Holdings,

25 Ingenuity 13, those clients?

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

8

1 MR. MAZZUCCO: Yes.

2 THE COURT: And you think there is a difference

3 between those clients and Mr. Steele?

4 MR. MAZZUCCO: I think there is, your Honor, yes.

5 THE COURT: From what I know about this case,

6 there is no difference at all, but that is why I am glad

7 Mr. Steele is here. Maybe he can clarify some of those

8 things, but if you say answering those kinds of questions

9 would incriminate him, I’ll take you at your word.

10 MR. MAZZUCCO: No, your Honor. I’m not saying

11 they are going to incriminate him. I said it is his

12 Fifth Amendment privilege against forced testimony.

13 There was language on the record from March 11th where

14 this court made some accusatory statements about fraud

15 upon the court, things that were in the transcript.

16 THE COURT: Yes.

17 MR. MAZZUCCO: You leave my client with no

18 alternative but.

19 THE COURT: To rebut those statements.

20 MR. MAZZUCCO: He can rebut those statements in

21 the proper venue, your Honor. This is an order to show

22 cause in front of this court.

23 THE COURT: Let’s cut to the chase. I am really

24 not interested in — I want to know if some of my

25 conjecture is accurate. The only way I can find out is

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

9

1 to have the principles here and answer those questions.

2 Now, if you say he will not answer those

3 questions, then I will draw whatever inferences I think

4 are reasonable from the facts as I know them. This is an

5 opportunity for him to protect himself, to defend and

6 protect himself. It is up to him. So you are saying he

7 doesn’t want to answer any questions, fine. I am not

8 going to go through the charade of asking the questions

9 and have him assert the Fifth.

10 MR. MAZZUCCO: Your Honor, he is not going to

11 respond to your questions.

12 THE COURT: All right. Fine.

13 What about Mr. Hansmeier? What is his

14 position, the same?

15 MR. BAKER: The exact same, your Honor.

16 THE COURT: All right. You may be seated.

17 Mr. Duffy.

18 MS. ROSING: Your Honor, Mr. Duffy and

19 Ms. Van Den Hemel will also be taking the fifth

20 amendment. Though, in response to your desire for

21 additional information, I do have approximately 25

22 minutes of argument, and I do have some exhibits that are

23 judicially noticeable.

24 THE COURT: On what? Relevant to what?

25 MS. ROSING: To the seven issues pending before

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

10

1 this court.

2 THE COURT: Give me the Cliff Note version. Just

3 give me a summary, what it is that you would like to –

4 MS. ROSING: Well, your Honor, what I would like

5 to argue because my clients are entitled to a reasonable

6 opportunity to be heard, we weren’t allowed –

7 THE COURT: Excuse me. They are giving up that

8 right to be heard. Now, what have you got to say that is

9 under oath?

10 MS. ROSING: Well, your Honor, my arguments are

11 legal arguments.

12 THE COURT: I know. I am looking for facts. I

13 really am. I am not a looking for legal arguments.

14 MS. ROSING: Well, your Honor –

15 THE COURT: Can you tell me, for example, who

16 directs the litigation here in California? Who makes the

17 decision as to whether or not cases are dismissed or

18 settled for how much money? Can you tell me that?

19 MS. ROSING: Your Honor, I can’t testify.

20 THE COURT: “Yes” or “no”, please. Because we

21 need to move through this. Can you tell me that?

22 MS. ROSING: I personally cannot tell you that,

23 your Honor.

24 THE COURT: All right. Do you know whether or not

25 there is another Alan Cooper other than the one that was

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

11

1 here at the last hearing?

2 MS. ROSING: I am not aware of another Alan

3 Cooper, your Honor.

4 THE COURT: All right. Good.

5 What happens to the settlement money?

6 MS. ROSING: Your Honor, obviously, I represent

7 Mr. Duffy and Ms. Van Den Hemel. I don’t have personal

8 knowledge of any of this.

9 THE COURT: Why weren’t notices of related cases

10 filed? Who made the decision to hide from the court the

11 fact that all of these cases were related.

12 MS. ROSING: I do have a judicially noticeable

13 document on that, your Honor, where the Northern District

14 declined to relate the cases.

15 THE COURT: That is a different thing. That is

16 consolidating them.

17 MS. ROSING: It is actually an order declining to

18 relate them.

19 THE COURT: Same plaintiff, same film, same causes

20 of action, and they are not related? Excuse me?

21 Okay. Tell me this. Who made the decision

22 not to disclose to the court the fact that the law firms

23 have a financial interest in the outcome of this

24 litigation?

25 MS. ROSING: Your Honor, there is no evidence

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

12

1 before this court at all that the law firm or any, well,

2 certainly, my clients, Paul Duffy or Angela Van Den

3 Hemel, have any financial interest in the outcome of this

4 litigation.

5 THE COURT: Excuse me. Did you read Hansmeier’s

6 deposition?

7 MS. ROSING: Yes, I did, your Honor.

8 THE COURT: And then you make the statement you

9 just made?

10 MS. ROSING: Your Honor, there is no evidence that

11 Mr. Duffy or Ms. Van Den Hemel who is a W2 paralegal at

12 Prenda Law –

13 THE COURT: I understand that.

14 MS. ROSING: And I would be happy –

15 THE COURT: Wait a minute. The money goes to

16 Prenda Law’s trust account; right?

17 MS. ROSING: Your Honor, I have no personal

18 knowledge, and I can’t testify. But I do have an

19 argument I would like to present to your Honor.

20 THE COURT: Relative to what? To anything I just

21 asked?

22 MS. ROSING: Well, your Honor, it is a legal

23 argument with some objections and some judicially

24 noticeable documents.

25 THE COURT: Relative to what?

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

13

1 MS. ROSING: Well, the seven issues before the

2 court, the Alan Cooper issue, the discovery order issue,

3 the Wagar investigation, the Denton investigation, Form

4 CV30, the relationships, and March 11, the things that

5 are noticed in this court’s OSC.

6 But, your Honor, we would be happy to submit

7 this in a brief if that would be more –

8 THE COURT: Good. Do that. Thank you.

9 We are done.

10 (Proceedings concluded.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

1 CERTIFICATE

2

3

4 I hereby certify that pursuant to Section 753, Title 28,

5 United States Code, the foregoing is a true and correct

6 transcript of the stenographically reported proceedings held

7 in the above-entitled matter and that the transcript page

8 format is in conformance with the regulations of the

9 Judicial Conference of the United States.

10 Date: April 5, 2013

11

12 /s/ Katie Thibodeaux, CSR No. 9858, RPR, CRR

Apps and Privacy

A Pew Internet and American Life Project survey found more than half of those surveyed have decided not to install an app over privacy concerns.

Cloud Computing

On the issue of attorneys and cloud computing, the American Bar Association makes available a compendium of ethics opinions on cloud computing from around the country.

Disclosure of Client Information

Attorneys should be concerned about disclosure of client information in the use of social media and marketing in the context of professional rules of conduct and ethics, particularly Utah Rule 1.6.

White House Privacy Report

The White House issued a report on Consumer Privacy in a Networked World.

One of the most distressing discoveries on the Internet is that someone else is pretending to be you.  Whether someone created one email account to impersonate you by sending electronic communications or whether an entire profile has been created purporting to be you, the impact of fake or fraudulent social media accounts can be significant.  The impact can be personal by causing undue distress and anxiety.  The impact can also be public by affecting one’s reputation online and offline.

It is essential to speak with an attorney or lawyer who has knowledge related to these matters to facilitate the expeditious resolution of the content.  That being said, this post provides some general comments.  It is not meant to be specific legal advice to any individual as all circumstances may warrant specific, specialized action.

Preservation of Evidence

The first thing you should do when discovering a fraudulent account is to preserve as much information as possible.  Ideally, you can have someone other than yourself preserve the information.

With respect to emails, this will involve ensuring you preserve the entire header.  The header of an email contains valuable information about the transmission and delivery of the email.  While many people see headers as containing simply the fields “From”, “To”, “Subject”, and/or “Date”, a full header contains much more information.  In particular, the full header will contain Internet Protocol or IP addresses.  Most email clients will allow you to view the entire header of an email.  Try it.

[As an example: For Mac Mail, select "Preferences" from the "File" menu.  Then choose the "Viewing" icon.  Where it states "Show header detail," choose "All."  If you have never done this, you will be amazed at the information you will see.]

For webpages such as a fake Facebook page or fake LinkedIn page, you should save each page as a PDF document.  Be sure to review the saved PDF document to ensure that it has saved the webpage as you see it live.  At the very minimum, you should ensure that the content you want to preserve has been saved in the PDF.  Where pictures happen to be involved, you need to ensure the pictures appear in the saved PDF.  After ensuring the content has been saved, you need to make sure that the footer or header information of the PDF contains the uniform resource locator or url (e.g. for this page, http://blog.muddlawoffices.com/mloblog/2012/07/27/mudd-law-offices-how-to-take-down-fake-facebook-page) as well as the date and time of printing (or preservation).

Of course, the same process should be used for webpages on the Internet containing defamatory or private information about you.

You should also save the webpages onto your computer.  For more advanced preservation techniques involving an entire website, you can use tools such as WebDevil to preserve an entire site.  However, you need to be familiar with the options and preferences involved in such software applications to ensure the information has been preserved properly.  Once you have contacted an attorney, an attorney can help preserve the website in such a manner.

The essential aspect of this is to preserve information prior to proceeding to take down the webpage.  You do not want to lose content that may be deleted at a later time by Facebook, LinkedIn, or other hosting site after you have requested the page(s) be removed.

Contacting An Attorney

After preserving the information, you should contact an attorney experienced in handling matters involving defamation, privacy, impersonation, and the Internet.  Mudd Law Offices has represented individuals in these situations for several years.  Although it has attorneys licensed in Illinois, Indiana, Connecticut and Utah, and also admitted to federal courts in Colorado, Michigan, and Florida, it has appeared in litigation matters throughout the United States by being admitted for a particular case, or what is often referred to as pro hac vice.

In any case, you should ensure that the attorney has experience in the particular issue or matter with which you happen to be dealing.  Not only will this help be efficient and economical, it will help ensure the prompt protection of your reputation.

Sending a Take Down and Preservation Letter

After obtaining an attorney, a take down and preservation letter should be sent to the host of the content.  Reference to “host” does not necessarily mean the individual(s) who posted the content.  Rather, it refers to the site that hosts the content (e.g. Facebook, LinkedIn, etc.).  The letter should be pleasant but to the point.  Under 47 U.S.C. § 230, the host will likely have immunity for the content posted by third parties.  As such, it does not help to threaten the host with litigation (in most circumstances; an attorney or lawyer with experience in this area of law will understand when a more forceful approach can be used).

The letter should contain specific elements.  It should identify the content specifically by referring to the url.  If an account is involved, the account name should be identified.  For many hosts, there will be specific codes and numbers that may help identify the content.  Consequently, again, it is essential to use an attorney experienced in these matters.

The letter should explain that the content has not been authorized and represents an impersonation of the subject.  The letter should also contain additional specific items related to this argument.

The letter should request that the content and any related account information (such as IP addresses) be preserved and then removed.

As a founding member of the Cyberlaw Leadership Summit, Attorney Charles Mudd has attended each of the Summits.  This past May, Charles spoke to the members on issues of electronic surveillance laws and BitTorrent litigation.

Attorney Mark A. Petrolis attended the Cyberlaw Leadership Summit for the first time in May 2012.  He spoke with Charles on BitTorrent litigation.

Both Charles and Mark will be returning to the Summit in November 2012 to join the other select Internet lawyers in discussing the emerging and nuances areas of Internet law.

Mudd Law Offices practices nationwide; has attorneys licensed in Illinois, Indiana, Connecticut and Utah; and maintains offices in Chicago, Illinois and Park City, Utah.

With smartphones, digital images, ease of technology, and the ubiquitous nature of the Internet comes the ever emerging dark side of reputational harm and invasions of privacy.  Among the varied legal issues with which Mudd Law Offices has developed experience, the unauthorized publication of nude, naked, explicit, intimate or otherwise private photographs on the Internet stands out for many reasons.  Foremost, the publication of such photos (often casually termed ‘pics’) invades an individual’s most private space – their bodies – and often amounts to a significant betrayal of trust.

When our firm receives inquiries from victims of photos being posted online, the first objective for the individual will most often be removal of the photos from the Internet.  However, though removal must occur quickly, it will also be imperative to develop a sound strategy to preserve evidence, remove the content, and ensure the publication of the photos will not occur again.

Most of the time the subject of the photographs will know who posted them online.  Other times, the person in the photos will not know who posted them on the Internet.  Beyond this, many victims will actually be unaware that photos or video had been obtained of them.  Each of these factors plays into developing a strategic response to the content online.

It will be essential for anyone who has had nude, intimate, explicit, or private video or photos posted online on the Internet to consult with an attorney who is well-versed in this type of law and knows how to protect the individual’s anonymity as well as preserve the relevant evidence.

Where the Poster is Unknown

Where the individual who posted the content is unknown, the most likely action will involve sending letters to the sites on which the photographs have been posted and filing litigation against an anonymous party.  However, in doing so, it will be essential to file suit in a manner that protects the plaintiff’s privacy.  After filing suit and following certain procedural protocol, discovery will be implemented in efforts to determine the identity of the individual posting the unauthorized photographs. Many issues come into play in seeking the identity of unknown individuals who posted content on the Internet.

At the same time, one can seek an order from the court seeking preservation and removal of the content.

Knowing the Poster

Where an individual knows the identity of the person posting the content, there exist several strategies to explore.  To begin with, an attorney could send an immediate demand letter to remove the material. Depending on the individual at issue, this may or may not work. Often, the client would know best how a letter from an attorney would be received.

In other cases, you may want to file litigation promptly and seek an order compelling preservation of evidence – both in possession of the individual posting the material and the relevant websites.  Every situation will demand a unique strategic response.

During resolution efforts with the individual who posted the content, there will also be steps to take to attempt to remove the content from the Internet. Taking the right approach often secures results better than taking the wrong approach.

Should a Criminal Complaint Be Filed

You can also file a police report. However, this often may exacerbate the situation where an effort to resolve the matter may more quickly secure the desired result. Nonetheless, a police report and/or charges may be necessary in certain circumstances. Many state ethics rules, however, preclude threatening such an approach for purposes of settling with the individual. Again, the right strategy must be developed for your circumstances.

You may also speak to an attorney about No Contact Orders, Cyberstalking, and other remedies.

When we do file suit civilly on behalf of our clients, any number of privacy, defamation, stalking, and other claims may be available.

Charles Mudd, our principal attorney, is licensed to practice law in Utah.

Defamation in Utah

In Utah, a defamation plaintiff must allege and establish the following elements: (1) The defendant published the alleged defamatory statements in print (often referred to as libel) or in oral communications (often referred to as slander); (2) the alleged defamatory statements are false; (3) the defendant failed to have a privilege to make the alleged defamatory statements; (4) the defendant published the alleged defamatory statements with the “requisite degree of fault;” and (5) the alleged defamatory statements resulted in the plaintiff suffering damages.  Jacob v. Bezzant, 2009 UT 37, P21 (Utah 2009) (citation omitted)

The term “publication” in defamation constitutes a legal term of art meaning that it has a particular use within the legal context.  Specifically, in the defamation context, publication means any communication of a defamatory statement to a third person.  Smith v. Nu Skin Enters., 2008 U.S. Dist. LEXIS 90560, at *8 (D. Utah Nov. 5, 2008) (citing Restatement (Second) Of Torts § 577(1)).

As to the requisite degree of fault, this varies depending on the nature of the plaintiff.  If a Plaintiff is a private person, or in other words not a public figure, the “requisite degree of fault” is negligence.  Oman v. Davis Sch. Dist., 2008 UT 70, P69 (Utah 2008).  If the plaintiff is a public figure, like a politician or a celebrity, then the plaintiff must show that the defendant made the statements with “actual malice.”   O’Connor v. Burningham, 2007 UT 58, P8 (Utah 2007).

Actual malice represents another term of art that means publishing a statement knowing it to be false or “with a reckless disregard for the truth.”  Id.  The actual malice standard is stricter than the negligence standard.  Although there exist several reasons behind this elevated or heightened standard, the arguably most important reason is that a heightened standard for public officials encourages people to engage in public discourse involving public figures without fearing that they could be liable for defamation if they happen to be negligently incorrect in their statements.

As stated above, libel and slander constitute two distinct types of defamation.  Generally, written or visual defamation will be libel, and oral defamation will be slander.  It should be noted that it could be more difficult to prevail on a defamation claim involving slander than libel.

Statute of Limitations for Civil Defamation

Pursuant to Utah Code § 78 B-2-302, a claim for defamation (whether libel or slander) must be brought within one year.

 Criminal Defamation

Utah also provides for criminal defamation, which is a Class B Misdemeanor.  Pursuant to Utah Criminal Code § 76-9-404: “A person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule.”

Pursuant to Utah Code § 76-1-302, there exists a two year statute of limitations for criminal defamation.

Written by Mark A. Petrolis, Associate, Mudd Law Offices with contributions from Charles Lee Mudd Jr.

The Principal of Mudd Law Offices, Charles Mudd, is licensed in Utah.

They substituted for a discussion on online contracting with materials Exhibit A, Exhibit B, Exhibit C, Exhibit D, and Exhibit E.

To begin with, it should be remembered that defamation encompasses both libel and slander.  Libel represents written defamation, while slander represents oral defamation.

To establish a claim for defamation in Indiana, a person must prove the existence of a communication with defamatory imputation, malice, publication, and damages. Defamatory imputation means that the statement tends to harm a person’s reputation by lowering the person in the community’s estimation, or by deterring third persons from associating or dealing with the person. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010).

Defamation can be either defamation per se or defamation per quod.  In an instance of defamation per se, the defamed person does not have to prove any actual damages. A statement is considered to be defamatory per se in Indiana if it imputes one of the following: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person’s profession or occupation; or (4) sexual misconduct.  Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007).  Should a statement fall into one of the four defamation per se categories, the plaintiff need not prove any actual damages, as the damages will be presumed to have occurred.

Any defamatory statement not constituting defamation per se will be defamation per quod.  For defamation per quod, a plaintiff must plead and prove actual damages.

Perhaps most importantly, defamation claims in Indiana are subject to a two year statute of limitations. Ind. Code Sec. 34-11-2-4.  In contrast to some other states, though, the statute of limitations on a claim for defamation in Indiana does not begin to run until the damage caused by the defamatory statement is “susceptible to ascertainment” or, at least, due diligence on the part of the plaintiff would have resulted in ascertainment of that damage.  Burks v. Rushmore, 534 N.E.2d 1101, 1103 (Ind. 1989).

Defamation on the Internet can pose particular problems in the statute of limitations area.  Specifically, there exists a debate as to whether or not publication of a defamatory statement on the Internet is considered to be a “continuous publication” for the purposes of determining when the statute of limitations begins to run.  Some states have adopted the “single publication rule” to address that issue.  Under the single publication rule, the publication for purposes of a statute of limitations begins when the statement is first published.  Indiana courts, however, have never addressed whether or not the single publication rule applies to online defamation affecting Indiana residents.  Because of the “ascertainment” rule in Indiana, though, it’s possible that the courts may never have to reach this rule.  Nonetheless, to preserve one’s rights, it remains prudent to file within the statute of limitations.  To be most conservative, in Indiana, a plaintiff or defamation victim should file their claim within two (2) years of the initial publication of the statement.

In addition to the foregoing, there exist certain heightened standards where the dispute involves a public figure or matters of public interest.  A public figure who claims to have been defamed faces a higher hurdle than the average citizen. The United States Supreme Court has held that the public figure plaintiff must be able to prove actual malice on the part of the speaker, meaning that the speaker either knew that the statement was false, or acted with reckless disregard for the truth or falsity of his statement. New York Times v. Sullivan, 376 U.S. 254 (1964), Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

When the matter discussed in the allegedly defamatory statement is one of public concern, the plaintiff must again prove the speaker’s actual malice regardless of his status as either a public or private figure.  Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind. 1999).

In all cases, should you believe you have been defamed, you should consult with an attorney who practices defamation law.  In particular when the defamation (whether libel or slander) appears on the Internet, you should consult with a defamation lawyer experience in the context of the Internet.

Written by Stephanie M. Snyder, Associate, Mudd Law Offices with contributions from Charles Lee Mudd Jr.

The Principal of Mudd Law Offices, Charles Mudd, is licensed in Indiana.

In addition, Charles will speak on “Employer Regulation of and Response to Employee-Avatars in Virtual Worlds” and provide a live demonstration using Second Life.  As Charles will explain, “virtual worlds open up unique opportunities for businesses to extend their reach into various markets.”  However, “an employee’s use of an online avatar – whether as a private individual or business representative – creates an unusual dilemma for employers in controlling market identity, as well as the consumer’s perception of the business.” In his presentation, Charles will explore the employer’s predicament in responding to and regulating employee avatars.

Charles will also discuss cyberbullying and remedies to address cyberbullying both before and after litigation.

Additional topics at the Cyberlaw Symposium will be open source software; creative commons licensing; litigation trends involving patent, trademark, and copyright “trolls”; politics and intellectual property; hosting information on the Internet; cloud computing; and more.