Richmond Journal of Law and Technology

The first exclusively online law review.

Month: March 2018

John Henry, the Steam Drill, and the Increasing Demands of Rule 26(g)

By: Kate Bauer,

John Henry, well, he told his captain /

“Captain, a man, he ain’t nothing but a man /

Before I let your steam drill /

beat me down /

I’m gonna die with a hammer /

in my hand, Lord, Lord /

I’ll die with a hammer in my hand”[1]


John Henry cut through a mountain, exerting extraordinary effort to beat the steam drill.  The price was steep, costing Henry his life.[2]  Today new technologies providing reliable, cost-effective alternatives to routine human tasks seem to crop up daily.  Innovators wield data to justify adopting the new technology; once adopted, technology’s capabilities eventually become the standard against which human efforts are measured.  Even superb workers struggle to compete with machines that do not eat, do not sleep, and do not tire.

John Henry’s story is currently playing out in the eDiscovery field.  When identifying responsive documents for production, responding parties have a duty under Rule 26(g) to make a reasonable inquiry.[3]  Requirements for a reasonable inquiry have been evolving in recent years.  In the past, having humans manually review the documents was assumed to be accurate, with courts deferring to an attorney’s professional judgment that he had made a reasonable inquiry unless the requesting party could show a deficiency.[4]  The increasing use of technology-assisted review (TAR)—computer algorithms that analyze relevance decisions humans make on a small set of documents, and then extrapolate those decisions to the document collection[5]—has led to an increased emphasis on statistically validating the quality of the production set up front.[6]  These validation requirements were initially intended to objectively verify the accuracy of TAR algorithms, ensuring their results constituted a reasonable inquiry.[7]  Now, at least one court has proposed requiring statistical validation of manual review as well, with threshold recommendations for what values constitute a “high-quality” review.[8]  While research indicates that TAR can probably meet these requirements with ease, the accuracy demands will likely tax the capabilities of human reviewers.

Humans, meet the steam drill.  Good luck keeping up.

 Reasonable Inquiry: Historically, a Deferential Standard

The Rules require an attorney to conduct a reasonable inquiry when putting together a production set.[9] A reasonable production must be substantially complete, as “[a]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[10]  To determine whether an inquiry is reasonable, the court looks to the totality of the circumstances.[11]  The most common remedy for an inadequate production is a motion to compel, with sanctions generally reserved for when an attorney has failed to discover the obvious,[12] when a party fails to timely disclose relevant information,[13] or when a party obstructs access to relevant information.[14]  Absent a showing of deficiency by the requesting party, courts treated a responding party’s assertion of reasonableness deferentially.[15]

To meet the “reasonable inquiry” requirement, it was standard to hire armies of review attorneys to examine potentially relevant documents for privilege and production.[16]  Although utilizing massive review teams was generally considered reasonable if the team was adequately staffed and trained,[17] the exhaustive review approach became increasingly unsustainable from a cost perspective as document volumes continued to grow.

TAR: Reasonable Inquiry Requires Verification

At the turn of the 21st century, document discovery was an area ripe for innovation.  The document review process was painfully expensive: a 1998 study of federal cases found that discovery amounted to at least half of all litigation expenses, and discovery represented 90% of total litigation costs in the most expensive cases.[18]  By 2014, most Fortune 1000 corporations were spending between $5 million and $10 million annually on eDiscovery costs, with seventy percent of those costs spent on document review.[19]  Several companies reported spending as much as $30 million on eDiscovery.[20]

Innovators developed technology-assisted review to address the increasing data volume.  These computer algorithms promised to drastically reduce the time and cost of document discovery by “learning” from attorney decisions regarding relevance for a subset of documents, then applying the same designations to similar documents in the review set.[21]  Attorneys initially regarded these machine-learning claims with skepticism, so TAR advocates plied statistics to make the case that TAR was at least as accurate as exhaustive human review, and possibly more so.[22]  On top of its documented accuracy, on average TAR saved parties 45% of the costs of a traditional document review.[23]  Like the steam drill operators of old, small teams of specialists using TAR could replace the armies of human reviewers laying eyes on every document.[24]

Today TAR advocates have largely succeeded: numerous courts have embraced TAR usage, albeit usually with caveats.[25]  In contrast to the historical deference to human judgment, when TAR was first adopted courts had concerns about its accuracy.  Though academic studies had demonstrated impressive results for certain TAR solutions, the wide variety of solutions purporting to be TAR created fears about the “black box” of the technology.[26]  That one TAR solution worked did not mean a different one would.  Courts were therefore interested in objective statistical measurements such as precision and recall[27] that would help them in determining whether the TAR process had worked (i.e. whether it was reasonable).[28]  Statistical validation allows parties to determine whether TAR is making good predictions or bad ones without verifying TAR’s predictions for every document in the document set.[29]

To ensure TAR was reasonable, courts encouraged parties to be more transparent with TAR productions.[30]  Rather than accepting an attorney’s representation that he had conducted a reasonable inquiry, courts advocated (and at times required) that parties disclose unprecedented access detailing exactly how accurate their review had been.[31]  This approach, though understandable, broke with the deferential approach courts had historically taken to manual review.

Reevaluating Reasonable Inquiry: From Deference to Verification for Manual Review

The same statistics that supported TAR’s superiority also exposed an uncomfortable truth: exhaustive human review is not the “gold standard” it had previously been assumed to be.[32]  In fact, research shows that manual human review is fraught with inconsistency: information retrieval professionals disagree about whether a document is relevant at least as often as they agree.[33]  Attorneys fare even worse: in one study, attorneys agreed on relevance, at best, a mere 28.1% of the time.[34]  Alternative methods to reduce document volume such as using search terms, or “keywords,” also have significant shortcomings.[35]

Nevertheless, before TAR’s emphasis on statistical validation, little effort was expended to measure the accuracy of attorney coding decisions.[36]  Absent a showing to the contrary, courts accepted an attorney’s professional judgment that a review was complete,[37] which was embodied in the Rule 26(g) certification.[38]  A requesting party who disagreed had the burden of showing that the responding party’s production was inadequate before a motion to compel would be granted.[39]

The widespread usage of statistics to validate machine predictions has caused some to suggest applying a similar approach to manual review.  As TAR became more mainstream, so too did awareness about the statistical metrics necessary to evaluate its performance.[40]  The Rule 26(g) reasonableness inquiry is an objective one: what could be more objective than statistical validation?[41]

Special Master Maura Grossman recently ordered parties to apply statistical validation to manual review in In Re Broiler Chicken Antitrust Litigation, a class action currently pending in the Northern District of Illinois.[42]  Anticipating document-intensive discovery, Magistrate Judge Jeffrey Gilbert brought in Grossman, a well-known TAR expert, to arbitrate eDiscovery disputes.[43]  On January 3, 2018, Grossman issued a comprehensive Order governing processing, search methods, and validation.[44]  The Order observes that “[t]he review process should incorporate quality-control and quality-assurance procedures to ensure a reasonable production consistent with the requirements of Federal Rule of Civil Procedure 26(g).”[45]  Uniquely, the Order requires parties to use a Subject Matter Expert (SME) to calculate recall regardless of whether the parties use manual review or TAR.[46]  While recognizing that recall alone is not dispositive, the Order states that “a recall estimate on the order of 70% to 80% is consistent with, but not the sole indicator of, an adequate (i.e., high-quality) review.”[47]

The Broiler Chicken validation provisions weigh heavily in favor of choosing TAR over manual review.  Research shows that manual review tends to produce a wide range of recall values.[48]  For example, in their influential 2011 JOLT study Maura Grossman and Gordon Cormack compared the results of a TAR methodology against a manual review for five different review topics.[49]  While the TAR algorithms averaged a recall of 78.7% across all five categories (ranging from 67.3% to 86.5%), the human reviewers finished with an average recall of 59.3% (ranging from 25.2% to 79.9%).[50]  Similarly, in another study, researchers found that the recall of manual review ranged from 52.8% to 83.6%.[51]  Contrasting the wide range of manual review recall values with the tight band of TAR recall values supports the conclusion that manual review runs a greater risk of failing the Broiler Chicken recall validation protocol.

In addition to the increased risk of failing the Broiler Chicken validation protocol, manual human review involves a costly level of effort. While Rule 1 asserts that the Rules “should be construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding,”[52] purely human efforts generally involve greater time and expense than TAR.[53]  As shown by the JOLT study, the increased time and expense of human review is unlikely to translate into greater accuracy than TAR provides.[54]

Electing human review over TAR will usually run afoul of Rule 1’s objectives to increase the speedy determination of actions while reducing costs and preserving justice.[55]  Most obviously, manual review takes longer and incurs higher costs that TAR.[56]  Manual review is usually billed at a per-reviewer hourly rate, or on a per-document basis across the entire corpus of potentially relevant documents.[57]  TAR, by contrast, only requires human review of a small subset of documents, with the technology eliminating the need to manually review large portions of the document set.[58]  Additionally, when more reviewers are used, there is a greater chance that their interpretations of relevance will vary, increasing the risk of low recall.[59]  In contrast, a small number of SMEs using TAR to extrapolate their judgments will likely have a more consistent view of relevance than dozens of reviewers.[60]  Lastly, if the recall of the manual review is not at an acceptable level, the existing coding must be manually reevaluated on a document-by-document basis—a laborious and costly process.  However, correcting a TAR algorithm’s incorrect predictions is simple: just change the coding designation on the document the algorithm used to make its prediction.  Within hours (if not minutes) the algorithm will adjust its predictions for all related documents in the document set.  Not even the John Henrys of the document review world can compete with such speed.

Broiler Chicken: A Pecking Order for the Future?

Does Broiler Chicken portend a shift in how courts will assess the Rule 26(g) reasonable inquiry going forward?  Though the Order permits parties to choose either manual review or TAR, there is little doubt that the validation protocol favors TAR usage.  Academic studies and in-the-field usage have established that using TAR is less expensive and faster than manual review, while being at least as accurate (if not more so).[61]  A party who chooses manual review risks (1) falling short of the accuracy mark after incurring substantial time and expense, and (2) having to reevaluate its coding decisions one-by-one.

TAR has not yet entirely surpassed human capabilities, but that time may be coming.  In the Grossman and Cormack JOLT study, on one topic the humans did outperform the algorithm.[62]  Though less than 1% separated man from machine,[63] this slim win for human accuracy shows that traditional methods are not yet obsolete.  For now, courts generally accept that “[r]esponding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process.”[64]  Still, the time may be coming when “it might be unreasonable for a party to decline to use TAR.”[65]  After all, John Henrys are rare, but the technology to rival him is cheap, fast, and readily available.


[1] Bruce Springsteen with the Seeger Sessions Band, BBC Four Sessions (2008) (covering Pete Seeger’s song “John Henry”),

[2] For an alternative theory, see William Grimes, Taking Swings at a Myth, With John Henry the Man, N.Y. Times (Oct. 18, 2006) (“A smoothly coordinated human team had an advantage over the early drills, which constantly broke down.  The machines were highly efficient, however, at generating clouds of silicon dust. Contrary to the picture presented by the ballads, John Henry would have died not of exhaustion or a burst heart, but of silicosis, a fatal, fast-moving lung disease that took the lives of hundreds of railroad workers.”).

[3] Fed. R. Civ. P. 26(g).

[4] See Herbert L. Roitblat, The Pendulum Swings: Practical Measurement in eDiscovery, OrcaBlog (Nov. 4, 2014, 3:57 PM), (“We have gone from assessing eDiscovery on the basis of an attorney’s opinion: ‘I’m a professional and I conducted a professional enquiry,’ to . . . a perceived need to ‘prov[e] that we have obtained a certain level of recall.’”); see also Hyles v. New York City, No. 10CIV3119ATAJP, 2016 WL 4077114 at *3 (S.D.N.Y. Aug. 1, 2016); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427–28 (D.N.J. 2009); The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 52 (2018) (“The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.”).

[5] Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 1, 32 (2013) (Technology-assisted review is a “process for Prioritizing or Coding a Collection of Documents using a computerized system that harnesses human judgments of one or more Subject Matter Expert(s) on a smaller set of Documents and then extrapolates those judgments to the remaining Document Collection.”).

[6] See Roitblat, supra at note 4.

[7] See Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182, 192 (S.D.N.Y. 2012) (“[I]t is unlikely that courts will be able to determine or approve a party’s proposal as to when review and production can stop until the computer-assisted review software has been trained and the results are quality control verified. Only at that point can the parties and the Court see where there is a clear drop off from highly relevant to marginally relevant to not likely to be relevant documents.”).

[8] In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 at *50–51 (N.D. Ill. Jan. 3, 2018).

[9] Fed. R. Civ. P. 26(g).

[10] See Fed. R. Civ. P. 37(a)(4).

[11] Fed. R. Civ. P. 26 advisory committee notes to the 1983 amendments.

[12] R & R Sails Inc. v. Ins. Co. of Penn., 251 F.R.D. 520, 525 (S.D. Cal. 2008).

[13] Gucci America, Inc. v. Costco Wholesale, No. 02 Civ. 3190 (DAB) (RLE), 2003 WL 21018832 at *2 (S.D.N.Y. May 6, 2003).

[14] St. Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).

[15] See The Sedona Conference, supra note 4, at 52.

[16] See, e.g., Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535 EDL, 2011 WL 866993 at *4 (N.D. Cal. Mar. 11, 2011) (finding that party took reasonable steps to prevent disclosure of privileged documents including providing review attorneys with written instructions and a tutorial for the review); Kandel v. Brother Int’l Corp., 683 F. Supp. 2d 1076, 1085–86 (C.D. Cal. 2010) (finding that party had taken reasonable steps to prevent disclosure of privileged documents by staffing and training a document-review team).

[17] See Datel, 2011 WL 866993 at *4; Kandel, F. Supp. 2d at 1085–86.

[18] Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in A Digital Age, 58 Duke L.J. 889, 892 (2009).

[19] Jennifer Booton, Don’t Send Another Email Until You Read This, MarketWatch (Mar. 9, 2015, 10:10 AM),

[20] Id.

[21] See Grossman & Cormack, supra note 5.

[22] See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 1, 37 (2011) (reporting that manual reviewers identified between 25% and 80% of relevant documents, while technology-assisted review returned between 67% and 86%); see also Herbert L. Roitblat et al., Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, J. of Am. Soc’y for Info.  Sci. & Tech. 70, 79 (2010) (performing an empirical assessment to “answer the question of whether there was a benefit to engaging in a traditional human review or whether computer systems could be relied on to produce comparable results,” and concluding that “[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review.”).

[23] eDiscovery Institute Survey on Predictive Coding, eDiscovery Institute 3 (Oct. 21, 2010),

[24] Anne Kershaw & Joseph Howie, Crash or Soar? Will the Legal Community Accept “Predictive Coding?”, L. Tech News, Oct. 2010,

[25] See, e.g., Green v. Am. Modern Home Ins. Co., No. 14–CV–04074, 2014 WL 6668422 at *1 (W.D. Ark. Nov. 24, 2014); Dynamo Holdings Ltd. P’Ship v. Comm’r of Internal Revenue, 143 T.C. 183, 185 (T.C. Sept. 17, 2014); Aurora Coop. Elevator Co. v. Aventine Renewable Energy–Aurora W. LLC, No. 12 Civ. 0230, Dkt. No. 147 (D. Neb. Mar. 10, 2014); Edwards v. Nat’l Milk Producers Fed’n, No. 11 Civ. 4766, Dkt. No. 154: Joint Stip. & Order (N.D. Cal. Apr. 16, 2013); Bridgestone Am., Inc. v. IBM Corp., No. 13–1196, 2014 WL 4923014 (M.D. Tenn. July 22, 2014); Fed. Hous. Fin. Agency v. HSBC N.A. Holdings, Inc., 11 Civ. 6189, 2014 WL 584300 at *3 (S.D.N.Y. Feb. 14, 2014); EORHB, Inc. v. HOA Holdings LLC, No. Civ. A. 7409, 2013 WL 1960621 (Del. Ch. May 6, 2013); In re Actos (Pioglitazone) Prods. Liab. Litig, No. 6:11–MD–2299, 2012 WL 7861249 (W.D. La. July 27, 2012) (Stip. & Case Mgmt. Order); Global Aerospace Inc. v. Landow Aviation LP, No. CL 61040, 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012); Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012).

[26] Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, 25, 29 (“[I]f the use of predictive coding is challenged in a case before me, I will want to know what was done and why that produced defensible results. I may be less interested in the science behind the ‘black box’ of the vendor’s software than in whether it produced responsive documents with reasonably high recall and high precision.”).

[27] To calculate recall, a party must review a mix of relevant and irrelevant documents.  The party then codes the documents for relevance and compares its decisions about relevance against the algorithm’s predictions about relevance.  The more alignment between human reviewer and the algorithm’s predictions, the better the recall. See Grossman & Cormack, supra note 5 at 27 (defining “recall” as “[t]he fraction of Relevant Documents that are identified as Relevant by a search or review effort.”).

[28] Da Silva Moore, 287 F.R.D. at 185 (“The Court explained that ‘where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results,’ since ‘[p]roportionality requires consideration of results as well as costs.’”).

[29] John Tredennick, Ask Catalyst: In TAR, What Is Validation And Why Is It Important?, Catalyst (Sept. 27, 2016),

[30] See id.; see also Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128–29 (S.D.N.Y. 2015); Bridgestone, 2014 U.S. Dist. WL 4923014 at *1 (“[O]penness and transparency in what Plaintiff is doing will be of critical importance. Plaintiff has advised that they will provide the seed documents they are initially using to set up predictive coding. The Magistrate Judge expects full openness in this matter.”); Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467 at *11 (declining to allow predictive coding when counsel was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . . .”); Transcript of Record at 9, 14, Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., No. 1:11-cv-06188 (S.D.N.Y. July 24, 2012) (bench decision requiring transparency and cooperation, including giving the plaintiff full access to the seed set’s responsive and non-responsive documents except privileged).

[31] See sources cited supra note 30.

[32] See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 199 (2007) (“[T]here appears to be a myth that manual review by humans of large amounts of information is as accurate and complete as possible– perhaps even perfect–and constitutes the gold standard by which all searches should be measured.”).

[33] Ellen M. Voorhees, Variations in Relevance Judgments and the Measurement of Retrieval Effectiveness, 36 Info. Processing & Mgmt. 697, 701 (2000) (concluding that assessors disagree that a document is relevant at least as often as they agree).

[34] Roitblat et al., supra note 22, at 74.

[35] David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 28 Commc’ns Ass’n Computing Mach. 289, 295–96 (1985) (finding that paralegals who thought they had retrieved 75% of relevant documents using iterative keyword searches had only found 20%).

[36] Roitblat, supra note 4.

[38] See sources cited supra note 4.

[39] See sources cited supra note 4.

[40] See John Tredennick, Measuring Recall in E-Discovery Review, Part Two: No Easy Answers, Catalyst (Dec. 5, 2014),; Ralph Losey, Visualizing Data in a Predictive Coding Project, e-Discovery Team (Nov. 9, 2014, 8:10 PM),; Herbert L. Roitblat, The Pendulum Swings: Practical Measurement in eDiscovery, OrcaBlog (Nov. 4, 2014, 3:57 PM),; John Tredennick, Measuring Recall in E-Discovery Review, Part One: A Tougher Problem Than You Might Realize, Catalyst (Oct. 15, 2014),

[41] Too bad for the people who became lawyers because they were told there would be no math.

[42] In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 (N.D. Ill. Jan. 3, 2018).

[43] Michele C. S. Lange, TAR Protocol Rules the Roost: In Re Broiler Chicken, The ACEDS eDiscovery Voice (Feb. 8, 2018),

[44] Broiler Chicken, No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 at *45, *47 (N.D. Ill. Jan. 3, 2018).

[45] Id. at *45.

[46] Id. at *45, *47.

[47] Id. at *50–51.

[48] See Grossman & Cormack, supra note 22 at 37; Roitblat et al., supra note 22 at 79.

[49] Grossman & Cormack, supra note 22 at 37.

[50] Id.

[51] Roitblat et al., supra note 22, at 79.

[52] Fed. R. Civ. P. 1.

[53] See eDiscovery Institute Survey on Predictive Coding, eDiscovery Institute, ii, 3 (Oct. 21, 2010),

[54] See Grossman & Cormack, supra note 22 at 37; Roitblat et al., supra note 22 at 79.

[55] See Fed. R. Civ. P. 1.

[56] See eDiscovery Institute, supra note 53.

[57] See, e.g., Patrick Oot et. al., Mandating Reasonableness in A Reasonable Inquiry, 87 Denv. U. L. Rev. 533, 548 (2010) (“[To review 1.6 million documents] [i]t took the attorneys four months, working sixteen hours per day seven days per week, for a total cost of $13,598,872.61 or about $8.50 per document.”).

[58] See Grossman & Cormack, supra note 5.

[59] See Roitblat et al., supra note 22, at 74.

[60] See Voorhees, supra note 33.

[61] See Grossman & Cormack, supra note 22, at 37; Roitblat et al., supra note 22, at 79.

[62] Grossman & Cormack, supra note 22, at 37.

[63] Id.

[64] See, e.g., Hyles v. New York City, No. 10CIV3119ATAJP, 2016 WL 4077114 at *3 (S.D.N.Y. Aug. 1, 2016); Kleen Prod. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465 at *5 (N.D. Ill. Sept. 28, 2012); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009); see also The Sedona Conference, supra note 4, at 52.

[65] Hyles, 2016 WL 4077114 at *3.

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Digital Accessibility for Disability

By: Eli Hill,

Under the Americans with Disabilities Act (“ADA”), private entities, including businesses and nonprofits, must provide individuals with disabilities equal access to the services they offer.[1]  When a private entity uses a space for a public gathering with the purpose of education, sales, recreation, or presentation, that service is considered a public accommodation.[2]  Since the dawn of the digital age, the courts have continued to grapple with whether website operations should be classified as a “public accommodation”.[3]

The  courts have been hesitant to classify any business operation within cyberspace as a public accommodation.[4]  At the time the ADA was enacted in 1990, society was not as reliant on the Internet as today.[5]  Listed examples of public accommodations in the policy itself only include services that are offered within “brick and mortar” buildings.[6]  As businesses extended their brands and marketing online, disability advocates pressed the courts to reconcile this shift against the ADA language and intentions.[7]

To date, business websites are still not counted as a public accommodation on its own.[8] However, the courts have found that websites which offer information on physical store locations are a beneficial support for the public accommodation provided in-store.[9]  Expanding this idea further, the courts are exploring the idea of websites as gateways to actual business interactions.[10]   The intangible barriers are earning attention alongside the tangible ones and so committees are again pushing for a more progressive analysis of the ADA.[11]

As the construction of websites grossly outpaces physical space constructions, the obstructions in access to the digital portals require equal attention.[12]  More and more companies continue to abandon the physical storefront model of operation and build their corporate strategies around purely web-based models. [13]  Accordingly, a dynamic interpretation of the ADA against an equally dynamic digital sphere will remain a necessary platform of judicial review.[14]


[1] 28 C.F.R. § 35. 104, 35.160 Lexis (Feb. 2, 2018)

[2] See U.S. Dept. of Justice: Civil Rights Div., Title III Technical Assistance Manual III-1 (2000),

[3] See Joseph L. Friedman & Gary C. Norman, The Norman/Friedman Principle: Equal Rights to Information and Technology Access, 18 Tex. J. on c.l. & c.r. 47, 48-9 (Fall 2012).

[4] Id. at 47.

[5] See id.

[6] See 42 U.S.C.S. § 12181 Lexis (Feb. 26, 2018) (listing out examples of public accommodations).

[7] See, Rendon v. Valleycrest Prods., 294 F.3d 1279, 1283 (11th Cir. 2002).

[8] See e.g., Gomez v. Bang & Olufsen Am., Inc., No. 1:16-cv-23801 LEXIS, 15457 (S.D. Fla. Feb. 2, 2017).

[9] See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); see also Earll v. Ebay, Inc., 599 F. App’x 695 (9th Cir. 2015) (finding that there must be a connection between the good and service offered by a public accommodation and an actual physical space).

[10] See generally Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) (comparing “brick and mortar” walls and websites as offering boundaries from which customers operate within).

[11] See Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) (referencing the need to address website accessibility).

[12] See Bradley Allan Arehart & Michael Ashley Stein, Integrating the Internet, 83 Geo. Wash. L. Rev. 449, 454 (Feb, 2015).

[13] See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (finding by jury trial for the first time the need to recognize websites as a nexus to the business operation).

[14] See id.

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Are FBI Anti-Piracy Warnings More Bark Than Bite?

By: James DeSantis,

Thanks to its ubiquitous placement at the beginning and end of commercially released films, the criminality of copyright infringement is perhaps the most widely viewed criminal statute in the United States.[1] Despite its prominent place in the American psyche, the very existence of criminal liability for violating copyright laws is of relatively recent origin and one that has only ever been intermittently enforced.[2] It is important to distinguish between civil and criminal liability for copyright infringement. Civil action by one party against another is by far the most common way of protecting copyright infringement; whereas, criminal action for copyright infringement requires enforcement by government agencies and can lead to prison sentences.[3] Criminal liability for copyright abuse follows a consistent pattern of periodically raising fines and penalties while simultaneously lowering the legal thresholds for what types of activities constitute criminal infringement. Despite the increasingly stiffer penalties, expanded prosecutorial powers, and wide public awareness, criminal enforcement for copyright infringement is more honored in the breach than the observance− rarely does a breach result in serious liability.

Under the Constitution’s Copyright Clause, Congress has the power “to promote the Progress of Science and the useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries.[4]” The first criminal provision in U.S. copyright law was introduced 1897, which made it a misdemeanor for the “unlawful performances and representations of copyrighted dramatic and musical compositions” as long as the violation had been “willful and for profit.[5]” Until the implementation of criminal penalties for copyright infringement, copyright concerns were entirely a civil rather than a criminal matter.[6] The idea was that copyright violations were of private financial concerns rather then the purview of the criminal justice system, especially considering that many types of copyright infringement can be beneficial to the public.[7]

As the entertainment industry grew and the technology advanced, the financial gains for reproducing another’s successful work became an ever increasing concern and criminal penalties for copyright infringement were greatly expanded in 1909 with amendments to the Copyright Act.[8] The Act expanded the copyright law to include all copyrighted material and added penalties of up to one year in prison.[9] Over the years, Congress periodically raised the statutory punishment for criminal copyright violations. First, in 1948, fines were increased from $1,000 to $10,000 and again in 1976, fines were raised from $10,000 to $25,000.[10] However, it was not until 1982, coinciding with the advent of home video and compact cassettes, that congress made copyright infringement for audio and visual recordings a felony punishable by both a $250,000 fine and five years imprisonment.[11] While criminal punishments exist on paper, criminal charges for copyright infringement are rarely enforced.[12] Of the 3300 published copyright cases between 1948 and 1997, only sixty-eight (two percent) involved criminal charges.[13]

The first major court decision of the then nascent issue of mass online copyright infringement occurred in United States v. LaMacchia, which exposed the legal limitations the government faced in attempting to enforce criminal copyright laws in the digital age.[14] The 1994 ruling dismissed a criminal action against a 21-year-old MIT student who made copyrighted software freely available for download through his electronic bulletin board.[15] Despite causing over $1,000,000 in losses to the software companies, LaMacchia could not be prosecuted under the existing law because it could not be shown that he personally profited from the scheme.[16] In response to the Supreme Court’s ruling in LaMacchia, which became known as the “LaMacchia loophole,” Congress passed the No Electronic Theft Act (NET Act) in 1997, amending the language requiring “commercial gain” to any “receipt, or expectation of receipt, of anything of value.”[17]

Originally heralded as a major legislative victory for the software and entertainment industries, the NET Act has been so rarely enforced by the Department of Justice (DOJ) that is widely seen as a major disappointment.[18] Despite no shortage of potential prosecutions that could be pursued, the NET Act is emblematic of how the mere existence of a law on the books is of little value, if the law is never actually enforced.[19]

Out of frustration with the lack of governmental assistance in combating rampant online piracy, the entertainment and software industries have aggressively lobbied congress to expropriate federal funds to go after online pirates and to allow the DOJ file civil suits against suspected pirates.[20] These lobbying efforts have had limited legislative success, and the chance that an individual in the United States will be criminally accountable for engaging in online piracy is negligible.[21] For all the efforts lobbying the U.S. government to take a more aggressive role in prosecuting online copyright infringers under federal criminal statutes, the most noticeable effect is the use ever more intimidating anti-piracy banners shown before films and on the back of CDs.[22] While Hollywood and the music industry aggressively warn customers of the criminal repercussions for illegally sharing a copyrighted work, in reality, governmental enforcement against online copyright infringement is rare.[23] So rare that the next time you see the FBI’s intimidating warning label you should see it as a public service announcement on behalf of entertainment companies rather than a genuine threat of prosecution from the U.S.’s highest law enforcement agency.


[1] (Public interest in FBI Warning screens is so high that they have even developed their own cult following as evidenced by their own Wikia fan page.)

[2] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

[3] 18 U.S. Code § 2319.

[4] U.S. Const. Art. I, § 8, cl. 8.

[5] Act of Jan. 6, 1897, ch. 4, 29 Stat. 481-82.

[6] See 17 U.S.C. §§ 502-505.

[7] Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, 83 B.U. L. Rev. 731, 733 (2003). (Copyright laws have always been a balance between private interests and benefits that accrue to the public).

[8] The Criminalization of Copyright Infringement in the Digital Age, 112 Har. L. R. 7, 1705, 1707 (1999).

[9] The Copyright Act of 1909 § 28.

[11] Piracy and Counterfeiting Amendments Act of 1982, Pub. L. 97-180, 96 Stat. 91

[12] Lawrence M. Solan, Statutory Inflation and Institutional Choice, 44 Wm. & Mary L. Rev. 2209 (2003).

[13] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA 527, 529 (1999).

[14] United Sates v. LaMacchia, 871 F. Supp. 535 (D. Mass 1994).

[15] Benj Edwards, The Lost Civilization of Dial-Up Bulletin Board Systems, The Atlantic (Nov. 4, 2016) (Bulletin Board Systems (BBS) were a precursor to the modern Internet in which individuals had their own servers that could be accessed remotely. The advent of Internet service providers and dial up modems destroyed the market for BBS in matter of months).

[16] United States v. LaMacchia, 871 F. Supp. at 542.

[17] No Electronic Theft Act (NET Act) Pub. L. 105-147. 111 Stat. 2678 (1997). (Making it a crime to willfully upload copyrighted materials to the Internet regardless of presence or absence of a profit motive).

[18] See Virginia Man Sentenced for Violation of the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet (March 3, 2000); First Criminal Copyright Conviction Under the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet,

[19] Stuart Biegel, Beyond our Control?: Confronting the Limits of our Legal System in the Age of the Internet, The MIT Press, (2013).

[20] See The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (Aptly titled the PIRATE Act, the bill would allow federal prosecutors to file civil lawsuits against suspected copyright infringers and would allocate federal funds specifically for combating online piracy.); see also, Internet Property Enforcement Act of 2007, S.2317; Contra, Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279)

[21] See Kevin Paulson, Guilty Verdict in First Criminal Trial for Online Music Piracy, WIRED, May 23, 2008


[23] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

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New Hope for the Environmental Law Enforcement?

By: Daria Ivanova,

The field of environmental conservation has never been the most technologically advanced one, partially because of the lack of funds and partially because of the lack of motivation on behalf of the conservation community.[1] This, generally, old-school community has been attempting to solve main problems by extending protected areas and investing in ecosystem services, such as water purification.[2] However, a younger generation of conservation actors believes that this is not enough to address exponentially growing and ever-changing environmental problems.[3] Alex Dehgan and Paul Bunje perceived this problem in the environmental conservation field and seized the opportunity.[4] They figured that if technology can help solve wildlife extinction, why can’t they use it?[5] In fact, they believe in the power of technology to the extent that they claim that “[w]e’ll need a tribe of hackers, makers, economists, engineers, and entrepreneurs to help a sometimes technophobic conservation community reverse the sixth mass extinction.”[6]

A device Conservation X Labs has been developing is a child of the problem it is being created to eradicate. Conservation X Labs was awarded $159,000 to work on the development of the device which could analyze the origin and the species of timber imports.[7] These funds were obtained from a giant lumber company, Lumber Liquidators, which violated the Lacey Act protecting wildlife and plants from illegal harvesting.[8] The investigation purporting to uncover those illegal activities spanned for several years.[9] The Environmental Investigation Agency agents have been traveling from across the world to China to find out who smuggled Russian timber there.[10] This all could have been prevented if the law enforcement personnel had a device which could identify the type of timber smugglers were attempting to illegally introduce into the market.[11] Now it seems to be closer to reality.

One of the reasons why the scientific community has not used the technology that much was the price. However, nowadays, it is becoming more accessible. For example, in Biodiversity Conservation All. v. United States Forest Serv., 765 F.3d 1264 (10th Cir. 2014), Biodiversity Conservation Alliance contested the United States Forest Service’s decision to change one of Wyoming’s trails. The Forest Service used satellite imagery to identify the number of fens which could be affected by the change and the plant life in fens.[12] Even though the technology in that case did not necessarily work to preserve the environment, the Conservation X Labs’ device promises incredibly beneficial uses.

The Conservative X device looks like a video game joystick, but it is actually a hand-held scanner which is not as expensive as similar modern prototypes.[13] The system behind using the scanner is following. Living cells have a part which the scientists call a “barcode.”[14] The “barcode” is a sequence of DNA located in mitochondria which has 648 base-pair region.[15] The University of Guelph in Ontario contains the Barcode of Life Database which has the mitochondrial DNA of 275,000 species.[16] Using this database, scientists can identify the sequences specific to a certain species, then synthesize it and freeze-dry onto reference chips.[17] The people using the scanner would insert a small piece of a ground-up tissue mixed with a drop of water in a one of two kinds of microfluidic chips.[18] One type of chip would simply say yes or no, whereas the other type could compare to up to several references chips.[19] Introducing this type of device would not only offer the enforcement agencies a way to efficiently prevent numerous violations, but would it also encourage the innovation in the environmental enforcement field. By showing that technology can be both affordable and beneficial for protecting the environment, Conservation X Labs and other similar entities do way more than just creating technological help for the conservation community. It forces a strong culture clash within the whole community.[20]


[1] Scott Dance, Concerned Activists, Lawmakers Waiting for Delayed Data on Maryland’s Environmental Law Enforcement, (Oct. 31, 2016 06:42PM),

[2] Richard Leakey, Conservation Alone ‘Is Not Enough’, BBCNews (Sep. 10, 2007),

[3] Eillie Anzilotti, Bold Conservation Ideas Go from Concept to Reality on This New Collaboration Platform, Fast (Sep. 20, 2017),

[4] Virginia Gewin, A Handheld DNA Scanner Could Crack Down on Wildlife Identity Theft, The (Feb. 9, 2018),

[5] Julia Luthringer, Who Are Tomorrow’s Leaders in Ocean Conservation?, The Blog (Sep. 15, 2016, 03:17PM),

[6] Gewin, supra note 4.

[7] Id.

[8] Kiken v. Lumber Liquidators Holdings, Inc., 155 F. Supp. 3d 593 (E.D. Va. 2015).

[9] Jani Actman, From Trees to Tigers, Case Shows Cost of Illegal Logging, National (Nov. 10, 2015),

[10] Id.

[11] Ian Evans, Deeply Talks: Fighting Illegal Fishing With Big Data, Robots and A.I., (Feb.14, 2018),

[12] Biodiversity Conservation All. v. U. S. Forest Serv., 765 F.3d 1264 (10th Cir. 2014).

[13] Gewin, supra note 4.

[14] Nick Lane, Biodiversity: On the Origin of Bar Codes, Nature.Com (Nov. 18, 2009),

[15] Nicola Davis, How DNA Barcodes Can Beat the Wildlife Traffickers, The Guardian (Aug. 16, 2014),

[16] Sue Palminteri, Portable DNA Analysis Tool Identifies Species on Site to Help Combat Wildlife Crime, Mongabay (Dec. 6, 2017),

[17] Gewin, supra note 4.

[18] Id.

[19] Id.

[20] Id.

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How Private Spaceflight May Collide with Space Law

By: Helen Vu,

On February 6, 2018, SpaceX launched its first Falcon Heavy rocket into outer space with a Tesla Roadster attached to it and a spacesuit-wearing mannequin named “Starman” strapped into the car’s driver’s seat.[1] The rocket and the Roadster launched out of Kennedy Space Center at Cape Canaveral, Florida, and are expected to eventually reach Mars after entering into orbit around the sun.[2] This feat was groundbreaking, not only because it involved a convertible hurtling through outer space, but also because it was a private spaceflight company rather than a national government agency that funded the development of the world’s most powerful rocket.[3]

When it comes to competition in the field of space exploration, most people think of the post-Cold War Space Race between the United States and the Soviet Union.[4] At the start of the 1950’s, people around the world watched carefully to see which country would beat the other to the final frontier of outer space.[5] After the United States effectively won the race by putting the first man on the moon in 1969, the public’s interest in space travel slowly waned.[6] However, at the beginning of the 21st century, a handful of private entities entered the realm of space exploration and began competing amongst themselves to be the company that revolutionizes space travel.[7]

This privatization of space exploration and increased competition will inevitably lead to faster development of technology at lower costs. However, such rapid growth also means that our current body of space law will quickly become outdated and fail to meet the regulatory needs of a newly privatized market. The Outer Space Treaty, an agreement established in 1967 by the United Nations, provides a framework for governance of the shared use of outer space.[8] It was modeled after other treaties dealing with maritime activities and the exploration of Antarctica, and sought to mitigate any risks that accompany the study of new frontiers.[9] Under the Treaty, a state is internationally liable for any damage caused by a space object launched from its territory, even if the space object was operated by a private entity.[10] While this policy leads to a clear demarcation of state liability, imposing liability upon a country merely because it allows a company to launch an object into space from within its borders does not seem like an equitable or feasible solution. Holding a country accountable for its own actions in outer space is drastically different from holding a country accountable for the actions of a private entity. Further questions arise when companies someday facilitate space travel for private individuals who might perform acts while in space that lead to damage. Must a country’s economy face the consequences of what would likely be the monstrously expensive actions of a single person? How could we reasonably expect an individual to pay for the high cost of damages done in outer space?

A possible solution lies in the combination of insurance and indemnification policies. Before Russia’s Federal Space Agency sent the world’s first space tourist, Dennis Tito, into outer space in 2001, the country took out a $100,000 insurance policy on Tito.[11] An additional step could be to contract with private spaceflight companies in advance to ensure that they reimburse the state for any damages that may arise out of the launch.[12] By taking out insurance policies on space flights in addition to entering into indemnification contracts with the countries they launch out of, private companies may be able to mitigate some of the risk that arises out of their space exploration.

Before the launch of the Falcon Heavy, Elon Musk, the CEO of SpaceX, stated that there was “an extremely tiny” chance that the rocket could hit Mars.[13] Although the possibility of that happening is almost zero, we will still cross our fingers and hope that Starman and his Roadster don’t cross paths with any litigation-happy extraterrestrial creatures on his journey.


[1] See Tariq Maliq, Success! SpaceX Launches Falcon Heavy Rocket on Historic Maiden Voyage, (Feb. 6, 2018),

[2] See id.

[3] See Nell Greenfieldboyce, SpaceX Set To Launch World’s Most Powerful Rocket, The Two-way (Feb. 5, 2018),

[4] See The Space Race, (2010),

[5] See id.

[6] See id.

[7] See Timeline: 50 Years of SpaceFlight, (Sept. 28, 2012),

[8] Monica Grady, Private companies are launching a space race – here’s what to expect,

[9] See id.

[10] Dr. Frans G. von der Dunk, Passing the Buck to Rogers: International Liability Issues in Private Spaceflight, 86 Neb. L. Rev. 400, 409 (2007).

[11] See id.

[12] See id.

[13] See Loren Grush, Elon Musk’s Tesla Overshot Mars’ Orbit, but it Won’t Reach the Asteroid Belt as Claimed, The Verge (Feb. 8, 2018),

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Has the RIAA Given Up on Combating End-User Internet Piracy?

By: James DeSantis,

The battle against Internet piracy has been raging for almost two decades. The release of Napster in June 1999 marked the beginning of a Golden Age of peer-to-peer file sharing where billions and billions of dollars of copyrighted materials were plundered with near impunity. Blindsided by a precipitous drop in album sales, the Recording Industry Association of America (RIAA), a trade organization representing the recording industry, has consistently tried to stop the hemorrhaging of industry revenue by any means necessary.

Initially spending years focusing their legal efforts at shutting down P2P file-sharing services, legal action against individuals, or end-users, engaging in the illegal sharing of copyrighted material began en masse in 2003 when the RIAA filed hundreds of lawsuits against individuals identified to have committed Internet piracy.[1] Over the next five years, the RIAA would go on to file more than 30,000 lawsuits targeting alleged copyright infringers comprising a significant percentage of all intellectual property litigation in the country.[2] Aimed at striking fear into the heart of would-be downloaders, the RIAA lawsuits relied on filling mass “John Doe” copyright infringement lawsuits listing hundreds of defendants at a time.[3]

Mass John Doe lawsuits are an ingenious legal strategy utilized almost exclusively to prosecute copyright infringement. First the plaintiff identifies the unauthorized downloader’s Internet protocol address (IP address) and then files hundreds, sometimes thousands, of lawsuits against John Doe, or an otherwise unknown defendant. The plaintiff is able to file a single lawsuit against multiple defendants by invoking Rule 20 of the Federal Rules of Civil Procedure for the permissive joinder of parties.[4] After the lawsuits has been filed, the plaintiff asks for a court ordered subpoena compelling the Internet service provider (ISPs) to provide individual account holder information matching the IP address.[5] Once the ISPs turn over the individual user’s relevant identifying information (i.e. their name and address), the RIAA uses the threat of litigation to extract a settlement from the user.[6] The RIAA’s end user lawsuits were usually settled for $2500; the intrepid individuals who tried fight the RIAA lawsuits were highly publicized for subjecting low level offenders to lengthy court battles and excessive damages.[7]

Although it is impossible to determine the long term net effect of RIAA’s mass fillings of lawsuits against individual music fans had in tackling the issue of music piracy, one indication that the policy was of limited success is the RIAA’s decision to abandon the strategy in 2008 for other approaches.[8]

One of the RIAA’s more recent concerted efforts to tackle piracy, known as the “six strikes initiative” or Copyright Alert System, involved a cooperation between the five biggest ISPs and copyright owners that entailed sending warning notices to individual customers caught violating copyrights. The more strikes a customer receives the more threatening the letters become with the fifth and sixth letters alerting the copyright offender that his internet speed will be temporarily reduced to 256kpbs for two to three days as punishment.[9] In total, the “six strikes policy” sent out 13 million copyright notices with offenders becoming less and less likely to offend with every subsequent notice. Despite the promising data, the Copyright Alert System lasted four years before being shelved in early 2017.[10]

As of 2018, the RIAA is does not have any plans to go after individual copyright infringers instead focusing their efforts on prosecuting torrent sites and their administrators. It seems that the RIAA has learned that just because a battle should be fought does not mean that it can be won.


[1] David Kravets, File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation, Wired, Sept. 4, 2008,

[2] Matthew Sag, IP Litigation in United States District Courts: 1994 to 2014 (January 14, 2016), 101 Iowa L. R. 1065 (2016).

[3] Id. at 113.

[4] Fed. R. Civ. P. 20(a)(2).

[5] Felicia Boyd, The End of John Doe Copyright Suits in the US?, Intellectual Property Magazine (Sept. 2012),

[6] Sean B. Karunaratne, e-Case against Combating BitTorrent Piracy through Mass John Doe Copyright In infringement Lawsuits, 111 Mich. L. Rev. 283 (2012).

[7] Jemima Kiss, BitTorrent: Copyright Lawyers Favorite Target Reaches 200,000 Lawsuits, The Guardian (Aug. 9, 2011).

[8] Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits; The Wall Street Journal (Dec. 19, 2008).

[9] Adrianne Jeffries, Internet Providers Launch Controversial Copyright Alert System, Promise ‘Education’ Over Lawsuits, The Verge (Feb. 25, 2013) (256kbps is a little bit faster then typical dialup speed).

[10] Corinne Reichert, Copyright Infringement Alert System Abandoned in US, The Verge (Jan. 30, 2017).

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