Geologist beats Section 31 to Guardian of Forever

Dr. Steven Mueller, the intrepid geologist and my personal friend, has located the Guardian of Forever.

 

On earth, at present, the Guardian is located in Oman, where locals know it as the "Rock of Wishes."

Dr. Mueller's timing is impeccable (as usual, for those who know him), given the recent wrap of Discovery and release of a trailer for Section 31, as Captain Philippa Georgiou has a unique history (1, 2) with the Guardian.

Photos © Steven Mueller, used with permission. Contact author for license.

Denying public access to crash data, did state agency prioritize fear of litigation over public safety?

Map of bicycle and pedestrian accidents
in Providence, R.I., 2009-17, from
Providence Great Streets Master Plan (2020)

Rhode Island authorities appear to have denied public access to road safety data for no reason better than protecting the state from litigation.

For The Providence Journal, Amy Russo reported in June (subscription) on a dispute between the nonprofit advocacy group Providence Streets Coalition (PSC) and the Rhode Island Department of Transportation (RIDOT). According to the story, RIDOT denied a PSC request under state public records law for access to crash data.

To justify the denial, RIDOT pointed to federal law and state court precedent allowing denial of a public record request when a litigant seeks to support a negligence claim against the government, Russo reported. But there is no litigation related to the PSC request.

The relevant rule seems to be of the kind known to some freedom of information acts (FOIAs) that seeks to keep the FOIA process apart from discovery in litigation. Such provisions are not necessarily hostile to public access, but ensure that FOIAs don't undermine civil procedure. Usually a litigant in discovery has better access to relevant government-defendant records than a public-record requester has because FOIA exemptions from access don't apply. Sensitive information that might be FOIA-exempt can be subject to a protective order under the rules of civil procedure, but still must be disclosed.

It rather turns the rule on its head, then, for RIDOT to resist disclosure when there is no alternative track in discovery for the requester to demand access. If that's indeed what happened, then RIDOT is almost certainly overreaching. The state has ample protection from lawsuits in sovereign immunity. Typically, states cannot be sued merely for failure to act affirmatively to ensure public safety, nor for exercising discretion to prioritize public safety relative to finite resources.

Rather, a litigant must show that officials were bound to follow a specific legal standard and negligently failed to do so. If that's what's going on, then lawsuits are precisely the appropriate mechanism for injured persons to see their interests vindicated and the state held accountable.

Whatever RIDOT's motive, withholding vital safety data from the public is plainly at cross-purposes with public interest. Russo's story observed that other states, "including Texas, Colorado, Florida, California, and Massachusetts," make crash data public. She interviewed Eric Jackson, head of the Connecticut Transportation Institute and Transportation Safety Research Center at the University of Connecticut, which partnered with the Connecticut Department of Transportation to build a public crash database in 2010.

Connecticut did worry that "attorneys and ambulance chasers are going to come after us and basically say you have the data that's showing you where crashes are occurring," Jackson said. But "[s]o far, ... that hasn't come to fruition."

And Jackson pointed out what should be obvious: If the problem is road safety, then secreting data is hardly the answer.

The PSC-RIDOT matter won't come to court, Russo wrote, because PSC obtained the data it wanted from the City of Providence.

The story is Amy Russo, A Providence Organization Wanted Crash Data To Make Streets Safer. RIDOT Said It's Private, Providence J. (June 26, 2023) (subscription).

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay

A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

Legislative privilege shields Raimondo records against trucker subpoena in dormant Commerce Clause case

Toll gantry on a bridge in Washington
(Flickr by Wash. State DOT CC BY-NC-ND 2.0)

The First Circuit has quashed a subpoena against Rhode Island state officials, including now-U.S. Commerce Secretary Gina Raimondo, in a dormant Commerce Clause lawsuit over highway tolls supporting infrastructure.

Back in the 2010s, under the leadership of then-Governor Gina Raimondo (I'm a fan), my home state of Rhode Island was looking for cash to help with infrastructure needs.  The smallest state and an essential throughway for road and rail traffic in the vital I-95 corridor of America's Atlantic coast, "Ocean State" Rhode Island bears a burden in maintaining highway and bridge infrastructure that is disproportionately larger than the state's tax base.  The Raimondo administration installed a network of electronic truck tolls to beef up coffers.

My family travels often up and down the east coast to visit relatives, and the parade of tolls through the Atlantic states adds up to a significant expense.  But there are no passenger-car tolls in Rhode Island.  States that wish to impose tolls on federal highways had to strike a sort of deal with the devil, the devil being Uncle Sam, and Rhode Island, exemplifying founder Roger Williams's independent streak, opted out.  We held ourselves clear of Uncle Sam's sticky fingers, but then we found ourselves undermined by potholes and overrun with decaying bridges.

So when I heard about the Raimondo truck-toll plan, I admit, it sounded great to me.  The possible dormant Commerce Clause issue did gather in the dark recesses of my mind.  Anyone who tells you that we Rhode Islanders were not keen to have through-trucks pay their fair share for wear and tear on our roads and nerves as we circulate on our congested connectors is lying.  If the boon could be had without adding to my family's toll bills, I was willing to suppress any nagging concern I might have otherwise about a made-up constitutional rule.

Lawyers for the trade industry in trucking were not so generous of mind or pocket, and, after the tolls went live in 2018, they sued.  The plaintiffs argue violation of the dormant Commerce Clause, the constitutional theory that implies a federal prohibition on state action that excessively burdens interstate commerce even when Congress has not legislated a prohibition under its Article I power.

The First Circuit explained, "the Supreme Court has recently reiterated that the dormant Commerce Clause 'reflect[s] a "central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation"'" (quoting 2005 and 2019 precedents).

Flickr by Taber Andrew Bain CC BY 2.0

If the truckers can show that Rhode Island officials calculated the tolling program to burden out-of-state payers while sparing Rhode Islanders, the showing will strengthen—but significantly, not dispositively prove—the plaintiff position in the dormant Commerce Clause analysis.  I've kind of already admitted that burdening through-traffic was my reason for liking the toll program, but I'm just a taxpayer.  Unfortunately, there are some public statements by state officials indicating that they viewed the tolls the same way.

The plaintiff-truckers understandably want to dig deeper.  So they sent subpoenas to state officials, including the Office of the Governer and legislators, and to CDM Smith, a key private consultant to the state in the toll program, "RhodeWorks."  The First Circuit enumerated:

Specifically, the subpoenas sought materials relating to: (1) any efforts to mitigate the economic impact on Rhode Island citizens; (2) the expected or actual impact of the toll caps on in-state vs. out-of-state truckers; (3) the expected or actual impact of tolling only certain classes of trucks on in-state vs. out-of-state truckers; (4) the potential impact on interstate commerce; (5) alternative methods for raising funds; (6) drafts of RhodeWorks and related, failed bills, including mark-ups, comments, red-lines, revisions, etc.; (7) communications between the former Governor and legislators regarding RhodeWorks or other methods of raising funds; and (8) the public statements made by the movants and others.

State officials argued that legislative privilege required quashing of the subpoenas.  The district court was willing to override the privileges, ruling that the discovery interest outweighed officials' need of confidentiality in deliberative process.  On interlocutory appeal, the First Circuit disagreed and reversed.

The First Circuit began its discussion with the Speech or Debate Clause of the federal Constitution.  That's interesting, because the D.C. Circuit just recently applied the clause to thwart the efforts of Judicial Watch to probe the congressional investigation of the Trump Administration.  That decision made waves in the FOI community not so much for the result, but for a passionate concurrence in which U.S. Circuit Judge Karen LeCraft Henderson thoughtfully indulged the potential scope of common law access to the legislature.

However, the First Circuit opined:

Assertions of legislative immunity and privilege by state lawmakers stand on different footing. For starters, they are governed by federal common law rather than the Speech or Debate Clause, which by its terms applies only to federal legislators.... And the common-law legislative immunity and privilege are less protective than their constitutional counterparts....  That is because the separation-of-powers rationale underpinning the Speech or Debate Clause does not apply when it is a state lawmaker claiming legislative immunity or privilege.

In other words, the court recognized a constitutional constraint in horizontal separation of powers, but not, here, in vertical separation of powers, or federalism.  Nevertheless, the court reasoned that "federal common law" was constrained by the principle of comity, "[a]nd the interests in legislative independence served by the Speech or Debate Clause remain relevant."

The court was not impressed with the truckers' assertion that a federal interest in dormant Commerce Clause enforcement bolstered the private cause of action.

[Plaintiff's] argument suggests a broad exception overriding the important comity considerations that undergird the assertion of a legislative privilege by state lawmakers. Many cases in federal courts assert violations of federal law by state legislators who are not joined as parties to the litigation. Were we to find the mere assertion of a federal claim sufficient, even one that addresses a central concern of the Framers, the privilege would be pretty much unavailable largely whenever it is needed.

Here it mattered that the Governor's and lawmakers' alleged discriminatory intentions would not be dispositive of the constitutional question.  Rather, the court opined, the Supreme Court has emphasized the primacy of discriminatory effect over discriminatory purpose in dormant Commerce Clause analysis.  Intentions would prove only the latter and not necessarily amount to a constitutional offense.  Moreover, the court recited a familiar conundrum in the construction of legislative intent, that individual motives do not necessarily reveal the purpose of "the legislature as a whole."

In sum, even assuming that a state's legislative privilege might yield in a civil suit brought by a private party in the face of an important federal interest, the need for the discovery requested here is simply too little to justify such a breach of comity. At base, this is a case in which the proof is very likely in the eating, and not in the cook's intentions.

The court refused, however, to quash the subpoena against the private consultant, CDM Smith, even if state records might be revealed.  The provision of state records to a third party diminished the claim of privilege, the court reasoned, and thus rendered the question unripe for interlocutory appeal.

The case is American Trucking Associations, Inc. v. Alviti, No. 20-2120 (1st Cir. Sept. 21, 2021).  U.S. Circuit Judge William Kayatta wrote the opinion for a unanimous panel that also comprised U.S. Circuit Judge O. Rogeriee Thompson, a Rhode Islander, and, sitting by designation, U.S. District of Massachusetts Judge Douglas P. Woodlock.

Court: Family of elder-care resident may use rare 'bill for discovery' to investigate how broken foot occurred

In an unusual case last week, the Massachusetts Appeals Court allowed a "bill for discovery" to proceed despite its arguable incompatibility with rules of civil procedure.

Mary T. Atchue, an elderly resident in an assisted living facility in Worcester, Massachusetts, sustained a broken foot while being moved.  In an action maintained by her family since her death, Atchue filed a "complaint for discovery," based in equity.

Marie Van den Broeck, BE (CC BY 3.0)

The court held that the complaint could proceed, despite objection from defendant Benchmark Senior Living, LLC, that the claim would not be allowed by the state rule of civil procedure for pre-litigation discovery.  Discovery processes specified by statute and rule supersede the historic bill for discovery in equity insofar as they pertain, the court reasoned, but the bill remains available to supplement modern practice where it does not pertain.

The viability of a bill for discovery is dependent on the viability of the underlying potential claim in litigation, the court further held.  Atchue has a viable theory on tolling the statute of limitations, and her claims survive her death under the state survival statute.  So a bill for discovery remains available.

I don't usually dig into civil procedure cases, but this one caught my eye because of the unusual disposition in pre-litigation discovery.  I've written with approval about the use of the access to information law, or freedom of information act, in South Africa having been used as a pre-litigation discovery device, specifically, in fact, for a potential plaintiff to investigate the possibility of negligence in healthcare services.

Shaped by the experience of apartheid, the South African law, and comparable laws elsewhere in Africa modeled on it, allow access to information in the private sector when the complainant can demonstrate sufficient need grounded in civil rights.

The court vacated dismissal and remanded.

The case is Atchue v. Benchmark Senior Living LLC, No. 19-P-125 (Mass. App. Ct. Oct. 5, 2020).  Justice Vickie L. Henry wrote the opinion for a panel that also comprised Justices Rubin and Wolohojian.

Tort litigation as means to truth about the Troubles, authors propose; approach parallels access theory

A new article from researchers in Newcastle, England, posits the use of tort litigation to exonerate the right to truth in relation to the Troubles in Northern Ireland.

The authors are Conall Mallory, University of Northumbria at Newcastle,  Sean Molloy, Newcastle University, and Colin Murray, Newcastle University Law School.  Their article is Tort, Truth Recovery and the Northern Ireland Conflict, forthcoming 2020 in the European Human Rights Law Review and available on SSRN.  (Hat tip @ Steve Hedley, Private Law Theory.)  Here is an excerpt of the abstract.

Northern Ireland has no effective process to address [the] legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones.... One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a "witch-hunt."

Derry clash, Apr. 1971 (N. Ire. public record)

The right to truth is a piece in the puzzle of truth-and-reconciliation strategies as they have been implemented with variable success in post-conflict venues around the world.  The strategies are predicated on the notion that the revelation of truth has value in of itself to victims and survivors.  The conventional legal system, focused as it tends to be on compensation, often accomplishes nothing when compensation fails to materialize, or even nothing in the way of meaningful remedy if compensation does happen.  Thus truth proceedings are regarded as a hallmark legal innovation to clear the decks and allow peoples and nations to move forward.  So well regarded is this principle that human rights instruments and institutions have come to recognize "the right to truth" as a human right, a necessary corollary to the right to life.

In this article, the authors lament that there has been no effective, systematic truth process following the Troubles.  To the contrary, they posit, the U.K. government has as often thrown up roadblocks to truthful revelation.  A patchwork of legal mechanisms has nonetheless allowed truth to surface, they explain, and they review the efficacy of legal actions such as human rights litigation and information requests under the U.K. Freedom of Information Act.

Tort litigation offers another, as yet underutilized avenue, they propose.  For reference, they point to the Alien Tort Statute in U.S. jurisprudence, though, I add, it has lately fallen on hard times in the U.S. Supreme Court; and they point to U.K. agreements in recent years to pay claimants in Kenya and Cyprus in compensation for violent colonial suppression in the 1950s.  Survivors of the Troubles, even those who were children at the time, may press tort claims, such as battery, trespass, and civil conspiracy, against violent actors in the Troubles, whether British security officials, IRA fighters, or other paramilitarists.

British Army patrol in Kenya during 1950s Mau Mau Uprising
(Imperial War Museums)

Tort litigation in the proposed vein is not a new idea, but stumbles amid many hurdles, not the least of which is sovereign immunity.  But immunity can be overcome in actions against persons, whether non-governmental or gone rogue.  And there is ample evidence of both in the history of the Troubles.  An IRA defendant, for example, may be a purely private actor, and a British official who inflicted violence might be sufficiently dissociated from government policy as to negate immunity.  There's a fine line anyway between tort litigation and human rights claims, see Stefan Somers's whole book on the subject, the two more or less coinciding in the United States in the area of "constitutional tort."

Anyway, the authors claims, the plaintiffs in these tort actions do not actually have to win; they just have to survive dismissal to get to discovery.  Because their aim, remember, is truth, not compensation.  So the authors are really proposing that tort litigation be used for its discovery methods, regardless of the outcome of the case.  They moreover suggest that the litigation might shake loose answers from the government to avoid the prospect of compensation, or at least the cost of litigating, and they illustrate that having happened already in select cases.

The idea of using tort litigation for its discovery mechanism rather than with the aim of compensation is dicey, but not wholly objectionable.  Ethically a lawyer should not file an action that isn't winnable upon some rational theory.  But these cases wouldn't fail that test; there's no rule against having a multitude of aims in the fight, even if you think you'll lose on decision.  Of course, American tort lawyers are often criticized (whether it's true or not, discussion for another day) for playing fast and loose with that understanding, using the litigation process and its hefty transaction costs to shake down defendants on barely credible claims.  Here at least the aim is truth, rather than a pay day, so an aim with some sanction in civil rights.

The proposed litigation strategy reminds me of the work I've been doing lately (e.g., U.S. reform proposal) on the freedom of information, or right to access to information, in South African law.  There, a provision of law allows access to private sector records upon stringent prerequisites, namely, the exoneration of human rights.  The right to truth is one right that should fit that bill, a co-author and I have posited (abstract on SSRN, blog).  In a conventional South African FOI case, the courts allowed access to the records of a public steel company to investigate the exploitation of Apartheid labor.  It's a short leap from there to investigation of a private company with similarly sinister secrets.

Moreover, the South African courts have put some mileage on the private-sector-access law as a tool for "pre-discovery," before tort litigation is filed, to help a would-be plaintiff test the evidentiary waters.  That approach can only make litigation more efficient, more than one South African court has reasoned, by filtering out non-viable causes.

Those twin rationales, the right to truth and the validity of pre-discovery, seem incidentally to countenance the repurposing of tort law to the aim that Mallory, Molloy, and Murray here propose.  A comprehensive and government-sponsored approach to truth-finding would be more satisfying to those of us who like to call something what it is.  But maybe this is a way that tort law can exert policy pressure to bring about, in time, a coherent legal approach to the right to truth.

Info reg round-up: French feud, global injunction, foreign discovery, and literal grains of paradise

I've lately been swamped by developments in global information regulation.  Here's a round-up of highlights with links to read more.

Google-France feud.  Fresh on the heels of Google v. CNIL (read more), tensions are heating up again between Google and France, as Google refuses to play ball with France's new copyright law.  The 2019 EU Directive on Copyright in the Digital Single Market aimed, inter alia, to protect publishers from the scraping of their news product for aggregators' clips and snippets without compensation.  France was the first country, and only so far, to transpose the directive's article 15 (né draft article 11) into national law.  Effective this month, the French law would compel an aggregator such as Google to pay news publishers for the content that appears in Google search results.  How much money Google makes from Google News is disputed, but it's a lot.  Google contends that news providers are well compensated by traffic driven to their websites.  The news industry doesn't feel that way and blames aggregators for killing the business model of news, public interest journalism along with it.  Now Google has said that search results in France will exclude content that would require payment under the new copyright law.  The News Media Alliance, a U.S. industry association, has called Google's move "extortion."

Eva Glawischnig-Piesczek, Austrian Green

EU: Global injunction of one country's "defamation."  The European Union (EU) continues to amp up internet service provider (ISP) accountability.  A chamber of the Court of Justice of the EU (CJEU) ruled that European law—including EU information market directive, the Treaty on the Functioning of the EU, and the freedom of expression—does not preclude a member state from issuing a global injunction to take down unlawful content.

The facts reveal the problematic scope of the state power implicated, as the case arose from a Facebook post disparaging, e.g., "traitor," an Austrian politician.  The disparagement was regarded as defamation in the Austrian courts, but would be protected as core political commentary or hyperbolic opinion in the United States and many other countries.  The prospect of a state order with global reach was raised by the recent CJEU decision in Google v. CNIL.  Slate's take took no prisoners: "In so ruling, the court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules."

The case is Glawischnig-Piesczek v. Facebook Ireland Ltd., No. C-18/18 (Oct. 3, 2019).

US: Extraterritorial discovery.  The Second Circuit meanwhile published an opinion that pushes outward against the territorial bounds of U.S. law.  The court ruled that statutory civil procedure under 28 U.S.C. § 1782 may reach records held outside the United States and is co-extensive in scope with the maximum long-arm personal jurisdiction of constitutional due process.

The case arose from Banco Santander's acquisition of Banco Popular Español (BPE) after a criminal investigation and government-forced sale of the latter.  Mexican nationals and investors opposing the acquisition sought discovery in the U.S. District Court in New York against Santander and its New York-based affiliate, Santander Investment Securities (SIS), under § 1782.  The law compels discovery against a person or legal entity that "resides or is found" in the U.S. jurisdiction.

Santander New York (© Google Earth)

The court rejected Santander's contention, supported by academic opinion, that the language could not reach a mere "sojourner" in the jurisdiction.  The court furthermore held that the presumption against extraterritoriality of statutory interpretation does not apply to a jurisdictional statute, and even if it did, the design of the Federal Rules of Civil Procedure, with which the statute fits, plainly and expressly encompasses extraterritorial reach.

However, the court held, only SIS, not Santander, was within the reach of long-arm personal jurisdiction.  SIS was subject to general jurisdiction, but was not meaningfully involved in the BPE acquisition.  Santander had hired New York consultants to contemplate an acquisition of BPE, which could subject Santander to specific jurisdiction, but that was an entirely different transaction, prior to the government-forced sale of BPE.

Though the case deals with conventional discovery, it has important implications for transnational business in the age of e-discovery.  Expansive U.S. discovery practice is incompatible with more restrictive norms in much of the world, Europe included.  Section 1782 is a potentially powerful tool for savvy litigants to get their hands on opponents' materials when foreign courts won't allow it.  That's bound to rub transnational business and foreign regulators the wrong way.

The case is In re Del Valle Ruiz, No. 18-3226 (2d Cir. Oct. 7, 2019).  Hat tip to New York attorney Ken Rashbaum, at Barton LLP, who telephonically visited my Comparative Law class and referenced the case, and will be writing more about it soon. 

Gin labeling and grains of paradise.  OK, this is more about misinformation than information, and it is globally important.  Law and gin, two great international cultural forces and loves of my life, come together in a recently filed lawsuit over grains of paradise.  You can't make up stuff this dry yet thirst-quenching.

Bombay Sapphire Bottle (by @Justintoxicate)

In a class-action complaint removed to the U.S. Southern District of Florida in mid-September, plaintiffs accuse Bacardi USA, maker of Bombay Sapphire Gin, and Winn-Dixie supermarkets of selling "adulterated" product, because Bombay gin contains a botanical literally called "grains of paradise."  According to the complaint, grains of paradise, scientific name Aframomum melegueta, "is an herbaceous perennial plant native to swampy habitats along the West African coast."  Turns out, it's illegal under Florida law, section 562.455.

The ABA Journal explained: "The 150-year-old Florida law was passed when people thought grains of paradise was a poisonous drug. The misconception likely arose when home distillers added other, dangerous ingredients to gin to 'mask the awful distilling and make more money,' according to Olivier Ward, a British gin expert and consultant who spoke with the Miami Herald."  Bacardi is not hiding anything and maintains that its products comply with all health and safety regulations.  The complaint itself states that grains of paradise are listed in the ingredients and actually etched on the gin's blue bottle.

The case is Marrache v. Bacardi, U.S.A., Inc., No. 1:19-cv-23856 (S.D. Fla. docketed Sept. 16, 2019).