Ride the Lightning

SENDING EDD DOCUMENTS ABROAD FOR REVIEW? HAVE YOU WAIVED FOURTH AMENDMENT PROTECTION?

May 27, 2008

K&L Gates had a really fascinating post today about a new federal lawsuit in which the law firm of Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, is seeking declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted.

This issue has long been a thorn, frequently debated by experts. You lower costs by foreign review but at what risk? The fact pattern is pretty interesting since the Indian litigation support company  (Acumen India) has not only solicited Newman McIntosh but might have data from competing or opposing law firms.

The case is pending in the United States District Court for the District of Columbia, and is assigned to District Judge Colleen Kollar-Kotelly, who also is the presiding judge of the Foreign Intelligence Surveillance Court.

As a cynic’s cynic, I was particularly amused by the request for a declaration as to whether “President Bush has an obligation to establish intelligence gathering protocols for the purpose of safeguarding Fourth Amendment rights with respect to attorney communications to and from foreign nationals residing overseas.” Wrong President to ask this of – try again next year guys.

The full K&L posting may be found at http://tinyurl.com/5sjaus

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