Litigation

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The plethora of tools designed to make quick work of searching digital files appear to make most data collection tasks trivial. Products such as Google Desktop Search, DTSearch, Microsoft's Lookout and X1's eponymous set of search tools index digital files and e-mail, while providing fast and accurate search results. Of course, the promise of these tools stands in direct contrast to the warnings that litter industry trade publications, admonishing that anything less than a 'forensic' collection could be considered indefensible ' at best leading to a ruling for adverse inference, and at worst resulting in sanctions.

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Highlights of the latest product liability cases from around the country.

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Since the Food and Drug Administration ('FDA') set forth its pre-emption analysis in the preamble to its Jan. 24, 2006 drug-labeling rule, there has been a flood of judicial opinions analyzing the scope and applicability of the pre-emption defense in prescription drug litigation. The cases have been sharply divided, and the defense now appears likely to be a key issue that will be addressed in all cases going forward. In this continuing coverage, I summarize the pre-emption opinions that have been handed down since my last article in the November 2006 issue of this newsletter. For an analysis of the legal arguments in support of pre-emption and the FDA preamble, <i>see</i> Eric G. Lasker, <i>Prescription Drug Litigation Pre-emption Following the FDA Preamble</i>, LJN's Product Liability Law &amp; Strategy, Vol. 25, No. 4 (October 2006).

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The first part of this article discussed the Delaware court's decision in <i>In re Asbestos Litigation</i>, the role of epidemiology in proving causation, and the interpretation of the <i>Daubert</i> decision by several courts. The conclusion examines the role of courts as gatekeepers.

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Two appellate courts recently ruled that an individual who intentionally visited Web sites to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be convicted or punished for possessing images that were automatically saved due to the Web browser's cache functions. These rulings strike me as badly mistaken, for reasons that I shall explain further below.

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In 1998, Congress passed the Children's Online Privacy Protection Act (COPPA), broadly expanding the Federal Trade Commission's (FTC) enforcement powers in the Internet arena. Since then, states and the FTC have become more active in regulating the collection, use and security of consumer's personal information generally. However, the protection of children's personal information remains a top FTC enforcement goal, and the commission has become more aggressive in enforcement of COPPA each year. Companies that fail to proactively act to ensure COPPA compliance do so at the risk of seven-figure penalties. <br>This article provides Web site operators with suggestions on how to comply with the spirit of COPPA when legal obligations are not crystal clear, as in the case when the operator of the Web site in question believes that it can make a good faith effort to be a 'general audience' Web site, but has reason to believe that the site may attract visitors under the age of 13 and is unsure how the FTC will view and treat the site.

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Anti-Piracy Statutes/Constitutionality<br>Copyright Infringement/Probative and Substantial Similarity<br>Copyright Infringement/Substantial Similarity<br>Trademarks/Right to Sue<br>Video-Game Laws/Constitutionality

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The U.S. District Court for the District of New Jersey preliminarily enjoined further distribution and ordered the recall of the book 'Legit Baller,' which features an allegedly unauthorized, prominent use of photographs of popular R&amp;B singer/producer Marc Dorsey on its covers. But the court declined to order a recall of the defendant publisher's other books that included advertisements of 'Legit Baller.' <i>Dorsey v. Black Pearl Books Inc</i>.