Wednesday, July 13, 2005

~ internet information brokers could get attorneys into hot water ~

The Electronic Privacy Information Center (EPIC) has filed a complaint with the Federal Trade Commission seeking an investigation into the web-based businesses that sell telephone toll records. There is no explicit policy or statute violated when parties sell or obtain telephone call logs without a subpoena. In fact, the U. S. Court Of Appeals, 6th Circuit ruled in favor of the defendants in a case in which an information broker (Action Research Group, Mike Lee), hired by a private investigator, impersonated a telephone company subscriber (Clemons) and obtained that subscriber's toll numbers via fax.[2003 U.S. App. LEXIS 23547,*;82 Fed. Appx. 436ROGER CLEMONS, Plaintiff-Appellant, v. RANDALL WALLER, A ACTION AUTOLINER d/b/a ACTION RESEARCH GROUP, KARL HALL, and MERIDIAN RESOURCES & INVESTIGATIONS, Defendants-Appellees. No. 02-5342] Read at LexisOne (free registration required)

In one of many news stories, EPIC suggests that they have their eyes on attorneys who may be buying this information on the Internet, not just the brokers.

Hoofnagle said EPIC also plans to file complaints with state attorneys general, state regulators of private investigators and attorney bar association ethical committees, because it believes law firms are among the most frequent clients of the online investigation firms.
I've cautioned clients [Law Technology News, July 2005, Cut to the Chase: A primer for using public records databases] (free registration) about purchasing any data obtained by a click of the mouse, not just in order to avoid grey areas of the law, but because you'll waste money on information that is usually stale or inaccurate. And don't even think it meets any standard of due diligence.

Email me for a pdf of the article.

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Thursday, July 07, 2005

~ washington state appellate court decision on due diligence in locating heirs to an estate ~

Not surprisingly, the Court of Appeals upheld the trial court ruling that due diligence must be conducted to locate beneficiaries. Court of Appeals Division I, State of Washington, Docket Number: 54647-3-I, Title of Case: In re the estate of: Martin Little, File Date: 06/06/2005.

We agree with the trial court. Allocating the burden of proof to the executor is more consistent with the executor's role as an 'officer of the court and a fiduciary for the heirs'. Hesthagen, 78 Wn.2d at 941. Because the executor has the fiduciary duty to identify and notify those who are statutorily entitled to receive notice, it logically follows that in the event of a later challenge based on lack of notice, the executor will have the burden of showing that he used reasonable diligence to discharge his duty. Otherwise, and especially where the executor of an estate has a beneficial interest in it, the sense of fiduciary duty might easily give way to a temptation to conduct a superficial search or none at all.11 We conclude that evidence showing how Vannoy could have located the nieces and nephews was not a prerequisite for reopening the estate for lack of notice to them. Vannoy, whose 'best presentation' below included no evidence that he was diligent, was correctly found to have breached his duty to identify and notify these heirs of Martin Little. As a consequence, the decisions made in the probate are void as to these heirs. The court did not err in ordering the reopening of the estate. Affirmed. Vannoy's request for attorney fees on appeal is denied.

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Monday, July 04, 2005

~ michigan appellate digest - by major topics ~

The Michigan Court of Appeals website has this shortcut topical list with links to case summaries.

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Friday, July 01, 2005

~ what's bloggin' on Justice O'Connor and the future of the supreme court ~

Jurist claims President Bush will wait until after July 8 to offer an O'Connor replacement. O'Connor dismisses her importance as a swing vote on the Court suggesting she was just "open to persuasion", according to this Washington Post story.

Not as surprising a move as it seems, at least to the White House, which was circulating a list of possible female candidates last week. I think you can surmise who might be hot based on these biographical summaries. And then...the nomination process...

balkanization points to the bitter fight ahead, more contentious because of O'Connor's pivotal role on the Court. The problems inherent in a Gonzales nomination and Supreme Court statistics you don't need to know are all at SouthernAppeal.

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