Electronic Surveillance and Offshore Legal Communications
On August 14, 2008, Acumen Legal Services filed a comprehensive motion to dismiss the lawsuit brought by Newman, McIntosh & Hennesey, LLP, a Maryland law firm, arguing that the court has neither subject matter nor personal jurisdiction. NMH v. Bush, Acumen Legal Services (India) Pvt. Ltd., et al., Civ. No. 08-00787 (CKK) (D.D.C., Amended Cmplt. filed May 7, 2008). As most readers will already know, NMH’s lawsuit claims that alleged, anti-terrorism, governmental interception of communications between the U.S. and any foreign terminus waives confidentiality, privilege, and Fourth Amendment privacy rights that otherwise may have applied to documents or information transmitted to overseas LPOs through the web or other electronic channels. The memorandum in support of the motion to dismiss catalogues a broad array of serious defects in NMH’s pleading, including lack of standing; no causation, injury in fact, or actual case or controversy; parties in interest not served or named; no factual or legal support for the requested declaratory and injunctive relief; and insufficient contact with D.C. to support long arm jurisdiction. In light of the length of this list of defects and the fact that NMH did not cure them when it amended its complaint, the motion seeks dismissal with prejudice. And the motion also makes express what many followers of the case have concluded: “NMH’s unwarranted focus on foreign competitors suggests that NMH is not genuinely interested in any comprehensive solution to any problem regarding waiver of attorney-client or Fourth Amendment privileges.” Mem. in Support at 13.
In late June, I prepared and published on the Aphelion website a white paper criticizing the lawsuit and NMH’s related requests to the Ethics Committees of the Maryland and D.C. Bars for advisory opinions. That initial white paper focused on procedural and policy issues as a way of emphasizing that NMH’s lawsuit, if successful, would affect not only the LPO industry, but also every law firm with a foreign office and every client with business abroad requiring foreign legal counsel. Most responses to that white paper contained a general theme: Showing that the requested relief will affect myriad other entities besides LPOs does not prove that the law should not have such effects, whether on LPOs or anyone else. Accordingly, I have amended the white paper to address the substantive defects of NMH’s waiver claims. And although the motion to dismiss beat me to the punch by a couple days, its focus on jurisdictional issues rather than failure to state a claim means that the amended white paper still contributes news as part of the ongoing consideration and discussion of the case. You can download a pdf of the revised white paper, or read a text version below. Continue reading ‘Electronic Surveillance and Offshore Legal Communications’ »
