What’s the word? This week, a federal district court in Virginia decided that clicking a Facebook “Like” button was not constitutionally protected speech. In this case, six people claimed a sheriff fired them because they supported his opponent during his re-election campaign. After the sheriff won re-election, he terminated their employment. The employees sued, claiming their termination violated their First Amendment rights. The judge determined that clicking the “like” button is not expressive speech, unlike writing a post on the site. Noted legal scholar Eugene Volokh disagreed with the ruling, explaining that “liking” something counts as speech since it conveys a message, much like a thumbs-up gesture. Mark our word—this is not the last time we’ll be hearing about this thorny issue.

Another federal court recently took a stab at interpreting the words in the federal statute governing the taxation of costs, 28 U.S.C. § 1920(4). In In re Online DVD Rental Antitrust Litigation, No. M 09-2029 PJH, 2012 U.S. Dist. LEXIS 55951, (N.D. Cal. Apr. 20, 2012), a class action involving claims that Netflix had reached an agreement with Walmart to divide the market for sales and online rentals of DVDs, Netflix won summary judgment and filed a motion seeking to recover its costs, including those relating to e-discovery. After the clerk awarded the costs, the plaintiff subscribers filed a motion with the court seeking review of the award. In denying the plaintiffs’ request to limit the costs, the U.S. District Court for the District of Northern California rejected the Third Circuit’s narrow view of 28 U.S.C. § 1920(4) as expressed in its recent decision in the Race Tires America, Inc. v. Hoosier Racing Tire Corp. case, which vacated the district court’s approval of many e-discovery costs. Although the court noted the Third Circuit’s “well-reasoned opinion,” the California court concluded that “in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order in connection with the Blockbuster subscriber plaintiffs’ motion for review of the clerk's taxation of costs, broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.” Ultimately, the court awarded defendants slightly more than $700,000 in costs.

And even when you try not to open your mouth, your words can sometimes come back to haunt you. In Roger Clemens’s perjury trial, currently going on in federal court in the District of Columbia, a careless e-discovery blunder revealed the dangers associated with redaction. When Clemens responded to the government’s sealed motion in limine, his lawyers submitted his response as a Microsoft Word file instead of a PDF file. Therefore, the lawyers’ intended redactions of confidential material from the divorce records of Clemens’s personal trainer, Brian McNamee, were made public. By copying and pasting the motion into a new Word file, the redactions disappeared, so anyone could read the text of the motion, revealing the ex-wife’s allegations that McNamee “‘secretly gained entry’ into her home, that he had a substance abuse problem at the time he said he was injecting Clemens with steroids and that McNamee was involved in prescription drug fraud and distribution.” Apparently, mum’s no longer the word in that case.

As always, we hope you enjoy our content and welcome your feedback.

Jon Resnick

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