Maryland Law Firm Seeks Guidance on Whether Electronic Transmission of Data to Legal Process Outsourcing Company in India Waives Fourth Amendment Protections

May 27 2008

The law firm of Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, has filed a federal lawsuit seeking declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted. The complaint explains the nature of the action as follows:

India-based Acumen Legal Services (India) Pvt., Ltd. (“Acumen India”) has solicited Newman McIntosh & Hennessey, LLP (“NMH”) to provide litigation support services to NMH from its offices in India. Acumen India is part of a fast-growing industry of Legal Process Outsourcers (“LPO”) that promise lower litigation support costs through outsourcing litigation support services to foreign nationals who live and work overseas. Acumen India, and other such LPOs (“litigation process outsourcers”), provides its litigation support services through the electronic transmission of documents and other data from U.S.-based law firms to Acumen India’s offices. In its solicitation of NMH’s business, Acumen India informed NMH that it already provides such litigation support to certain District of Columbia and U.S. based attorneys (herein designated as “John Doe, Esq. and Jane Doe, Esq.”). On information and belief, John Doe, Esq. and Jane Doe, Esq. are competitors to NMH or are adverse to NMH clients in litigation.

Amended Complaint, at pp. 1-2.

Acknowledging that “foreign nationals who reside overseas lack Fourth Amendment protections,” and that “the United States Government engages in pervasive surveillance of electronically transmitted data wherein one party to the transmission is a foreign national residing overseas,” the firm seeks declarations as to whether:

1) its own electronic transmission of client data will affect [sic] a waiver of Fourth Amendment protections to that data,

2) John Doe Esq. or Jane Doe, Esq.’s electronic transmission of non-client data (such as data produced to John Doe, Esq. and Jane Doe, Esq. during civil discovery) will waive Fourth Amendment protections to such data,

3) NMH, John Doe, Esq., and Jane Doe, Esq. are required to obtain prior consent of the owner of such data prior to electronically transmitting it to a foreign national residing overseas,

4) LPOs, such as Acumen, have an obligation to disclose the likelihood of Fourth Amendment waiver with respect to data that is electronically transmitted to foreign nationals residing overseas, and

5) President Bush has an obligation to establish intelligence gathering protocols for the purpose of safeguarding Fourth Amendment rights with respect to attorney communications to and from foreign nationals residing overseas.

Amended Complaint, at pp. 2-3.

The case is pending in the United States District Court for the District of Columbia, and is assigned to District Judge Colleen Kollar-Kotelly, who also is the presiding judge of the Foreign Intelligence Surveillance Court. None of the defendants has yet filed an answer or made any other appearance in the case.

The motion to dismiss this lawsuit can be viewed at http://www.sddglobal.com/Acumen_SDDGlobal.pdf

Here’s a summary:

WASHINGTON, D.C. , August 15, 2008 — In a closely-watched legal case, apparently designed by a U.S. law firm to place roadblocks in the way of the fast-growing legal services outsourcing industry in India, the Indian lawyers are fighting back. Newman McIntosh & Hennessy (“NMH”), a U.S. law firm worried about off-shoring of legal work, sued India-based Acumen Legal Services, along with U.S. President George Bush, in the Washington D.C. federal court. In response, Acumen today filed a hard-hitting motion to dismiss.

NMH is suing on the basis of speculation, unsupported by even a single example, that the U.S. government is intercepting all or most of the data sent by U.S. lawyers to foreign legal outsourcing providers, as part of an anti-terrorism campaign. Seizing on that speculation as an excuse, NMH seeks a court order against “all United States-based attorneys” who outsource legal work to India, and “all foreign legal outsourcing providers.”

Thanks to a motion to dismiss and supporting legal brief researched and drafted entirely in India, the NMH law firm is getting an unexpected taste of the kind of high-quality legal work that Indian lawyers can provide, even in the Washington D.C. federal court. In their brief on the motion to dismiss, the legal team for Acumen points out the following:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition. The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad. NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, including in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

In addition, by requesting the Court to issue declarations answering seven hypothetical legal questions, purportedly because the NMH law firm “need[s] guidance,” wants “to gain certainty,” and “must understand” various points of law to help the firm “in an increasingly globalized legal services environment,” NMH seeks relief that is impermissible under well-established principles governing declaratory judgments. The NMH lawyers, in essence, are seeking to outsource their legal research tasks to this Court, and secondarily to Acumen, President Bush and their respective counsel.

NMH’s Complaint is extraordinary, not only for what it contains, but even more so for what it does not. Nowhere in the Complaint does NMH allege:

— any example of an actual or impending injury to itself or to anyone;

— any actual or impending violation of Fourth Amendment rights;

— any instance of an actual or impending waiver of Fourth Amendment rights;

— any basis for finding a waiver of Fourth Amendment rights, given that NMH does not allege that any Fourth Amendment rights are being violated by the supposed government interception of data;

— any instance of an actual or impending breach or waiver of attorney-client privilege or confidentiality;

— any actual or impending example of government interception of data;

— any actual or impending instance of transmission of data to any foreign nationals by anyone;

— any basis for NMH’s speculation that electronic transmissions to foreign nationals are more likely to fall into the hands of the government than are domestic transmissions, which are subject to possible domestic surveillance by law enforcement agencies;

— any examples of actual or impending conduct within the District of Columbia by any of the parties;

— any relationship or interaction of any kind among any identified persons or entities in the District of Columbia or anywhere else, except for the unsuccessful solicitation sent by Acumen in India to NMH in Maryland;

— any monetary dispute or requested monetary relief that could support the “amount in controversy” requirement for NMH’s assertion of diversity jurisdiction;

— any legal or factual basis upon which this court could grant the sweeping declaratory and injunctive relief sought against millions of non-parties, such as every lawyer in the United States, and every foreign legal outsourcing company;

— any reason why NMH cannot avoid the speculative dangers it alleges by simply (a) continuing to refrain from using foreign legal outsourcing providers, and (b) seeking a protective order in any litigation where NMH believes that its clients’ data may be sent by adversaries to such providers;

— any legal or factual basis upon which the court could require the Executive Branch to “prevent the waiver of Fourth Amendment rights” or “safeguard the attorney-client privilege and client communications and client confidences and secrets;” or

— any reason why protection is needed beyond the statutory protection already provided by Congress, under which “[n]o otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the [applicable government surveillance provisions] shall lose its privileged character.” See e.g. 18 U.S.C. § 2517(4); 50 U.S.C. § 1806(a).

In short, as further discussed in the remainder of this brief, NMH has not come close to meeting the most basic requirements for standing or personal jurisdiction.

3 Comments

Mark Redman says:

May 30, 2008 at 1:22 pm

What is known about this law firm and the motivation behind the law suit?
Hiren Patel says:

June 13, 2008 at 12:23 pm

My colleague Michael Geske prepared a response addressing NMH’s claims. The approach NMH has taken and the requests they have lodged with the ethics committees and the DC court have consequences significantly beyond the LPO industry. The full text of Geske’s response can be found here:

http://www.aphelionlegal.com/News/NMHResponse.htm
Russell Smith says:

August 15, 2008 at 3:53 am

The motion to dismiss this lawsuit can be viewed at http://www.sddglobal.com/Acumen_SDDGlobal.pdf

Here’s a summary:

WASHINGTON, D.C. , August 15, 2008 — In a closely-watched legal case, apparently designed by a U.S. law firm to place roadblocks in the way of the fast-growing legal services outsourcing industry in India, the Indian lawyers are fighting back. Newman McIntosh & Hennessy (“NMH”), a U.S. law firm worried about off-shoring of legal work, sued India-based Acumen Legal Services, along with U.S. President George Bush, in the Washington D.C. federal court. In response, Acumen today filed a hard-hitting motion to dismiss.

NMH is suing on the basis of speculation, unsupported by even a single example, that the U.S. government is intercepting all or most of the data sent by U.S. lawyers to foreign legal outsourcing providers, as part of an anti-terrorism campaign. Seizing on that speculation as an excuse, NMH seeks a court order against “all United States-based attorneys” who outsource legal work to India, and “all foreign legal outsourcing providers.”

Thanks to a motion to dismiss and supporting legal brief researched and drafted entirely in India, the NMH law firm is getting an unexpected taste of the kind of high-quality legal work that Indian lawyers can provide, even in the Washington D.C. federal court. In their brief on the motion to dismiss, the legal team for Acumen points out the following:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition. The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad. NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, including in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

In addition, by requesting the Court to issue declarations answering seven hypothetical legal questions, purportedly because the NMH law firm “need[s] guidance,” wants “to gain certainty,” and “must understand” various points of law to help the firm “in an increasingly globalized legal services environment,” NMH seeks relief that is impermissible under well-established principles governing declaratory judgments. The NMH lawyers, in essence, are seeking to outsource their legal research tasks to this Court, and secondarily to Acumen, President Bush and their respective counsel.

NMH’s Complaint is extraordinary, not only for what it contains, but even more so for what it does not. Nowhere in the Complaint does NMH allege:

— any example of an actual or impending injury to itself or to anyone;

— any actual or impending violation of Fourth Amendment rights;

— any instance of an actual or impending waiver of Fourth Amendment rights;

— any basis for finding a waiver of Fourth Amendment rights, given that NMH does not allege that any Fourth Amendment rights are being violated by the supposed government interception of data;

— any instance of an actual or impending breach or waiver of attorney-client privilege or confidentiality;

— any actual or impending example of government interception of data;

— any actual or impending instance of transmission of data to any foreign nationals by anyone;

— any basis for NMH’s speculation that electronic transmissions to foreign nationals are more likely to fall into the hands of the government than are domestic transmissions, which are subject to possible domestic surveillance by law enforcement agencies;

— any examples of actual or impending conduct within the District of Columbia by any of the parties;

— any relationship or interaction of any kind among any identified persons or entities in the District of Columbia or anywhere else, except for the unsuccessful solicitation sent by Acumen in India to NMH in Maryland;

— any monetary dispute or requested monetary relief that could support the “amount in controversy” requirement for NMH’s assertion of diversity jurisdiction;

— any legal or factual basis upon which this court could grant the sweeping declaratory and injunctive relief sought against millions of non-parties, such as every lawyer in the United States, and every foreign legal outsourcing company;

— any reason why NMH cannot avoid the speculative dangers it alleges by simply (a) continuing to refrain from using foreign legal outsourcing providers, and (b) seeking a protective order in any litigation where NMH believes that its clients’ data may be sent by adversaries to such providers;

— any legal or factual basis upon which the court could require the Executive Branch to “prevent the waiver of Fourth Amendment rights” or “safeguard the attorney-client privilege and client communications and client confidences and secrets;” or

— any reason why protection is needed beyond the statutory protection already provided by Congress, under which “[n]o otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the [applicable government surveillance provisions] shall lose its privileged character.” See e.g. 18 U.S.C. § 2517(4); 50 U.S.C. § 1806(a).

In short, as further discussed in the remainder of this brief, NMH has not come close to meeting the most basic requirements for standing or personal jurisdiction.