A future with domestic drones may be inevitable. While civilian drone use is currently limited to government agencies and some public universities, a law passed by Congress last year requires the Federal Aviation Administration to allow widespread drone flights in the U.S. by 2015. According to FAA estimates, as many as 7,500 civilian drones could be in use within five years.

“Technology is great — as long as it’s used the right and proper way,” Rep. Jason Chaffetz, R-Utah, said at a House Judiciary subcommittee hearing May 17 on the issues surrounding drones — which can be as small as a bird and as large as a plane.

Congress isn’t alone in seeking to address the issues: Since January, drone-related legislation has been introduced in more than 30 states, largely in response to privacy concerns.

Rep. James Sensenbrenner, R-Wis., said it was important for new standards to address the privacy issues associated with use of drones. With Rep. Zoe Lofgren, D-Calif., and Rep. Ted Poe, R-Texas, he is sponsoring legislation that would codify due process protections for Americans in cases involving drones and make flying armed drones in the U.S. sky illegal.

“Every advancement in crime fighting technology, from wiretaps to DNA, has resulted in courts carving out the Constitutional limits within which the police operate,” Sensenbrenner said.

The subcommittee heard from experts who were divided on what actions Congress should take to address the new technology. But the four witnesses all agreed that drones raised new, often unprecedented questions about domestic surveillance.

“Current law has yet to catch up to this new technology,” said Chris Calabrese, legislative counsel for the American Civil Liberties Union.

Calabrese said he supported immediate regulation of the drone industry and said his biggest concern was the overuse of drones by police and government officials for surveillance. But Calabrese said he doesn’t want to hinder the growth of drones with the power to do good, including helping find missing persons, assisting firefighters and addressing other emergencies.

Tracey Maclin, a professor with the Boston University School of Law, said the issues raised by drones haven’t been addressed by courts before because the technology goes beyond what humans had been capable of through aerial surveillance.

Past court rulings, “were premised on naked-eye observations — simple visual observations from a public place,” he said.

Rep. Cedric Richmond, D-La., said he wanted to know when drone technology will advance to the point where Congress will have to act on the issue. He said he was concerned about the effect on privacy.

“At what point do you think it’s going to get to a point where we have to say what a reasonable expectation of privacy is?” Richmond said.

Republicans expressed similar concerns.

“It seems to me that Congress needs to set the standard, rather than wait and let the courts set the standard,” Poe said.

Some experts urged caution.

Gregory McNeal, an associate law professor at Pepperdine University, said writing laws to cover drones will be difficult because the technology continues to improve and Congress could think it’s addressing key issues, only to have new ones emerge.

He compared drones to the privacy concerns raised by development of the Internet in the 1990s. Regulating then, he said, could have stymied the rapid growth of the Internet and wouldn’t have addressed today’s Internet privacy issues.

If Congress feels compelled to act, McNeal said, it should think in terms broader than a “drone policy” and set standards for surveillance or realistic expectations of privacy. “A technology-centered approach to privacy is the wrong approach,” he said.

But the ACLU’s Calabrese said Congress should work quickly.

“This can’t be adequately addressed by existing law,” he said. “Manned aircraft are expensive to purchase. Drones’ low cost and flexibility erode that natural limit. They can appear in windows, all for much less than the cost of a plane or a helicopter.”

The Labor Department said May 17 that unemployment rates increased in only three states: Louisiana, Tennessee and North Dakota. Rates were unchanged in seven states.

California, New York and South Carolina all reported the largest unemployment rate declines in April. Each state’s rate fell by 0.4 percentage points.

The report said 30 states added jobs in April, while 18 reported fewer jobs.

Nationwide, employers added 165,000 jobs in April and the unemployment rate fell to a four-year low of 7.5 percent. The economy has added an average of 208,000 jobs a month since November. That’s up from only 138,000 a month in the previous six months.

Unemployment is declining in many states because the housing industry is creating jobs again. Rates have also declined because many of the unemployed have stopped looking for work. The government counts people as unemployed only if they are actively seeking jobs.

Texas has created 41,500 construction jobs in the past year. That’s helped the state be the nation’s leader in job growth over the past year. The state added 33,100 jobs last month and 326,100 jobs over the past 12 months.

Texas’ unemployment rate stayed at 6.4 percent in April compared with March, but has fallen from 7 percent a year ago.

New York gained 25,300 jobs in April — second most among the states — and 111,600 jobs in the past year. The job gains in April helped pushed the state’s unemployment rate down to 7.8 percent from 8.2 percent in March. Some of the decline was also because people stopped looking for work.

Florida added 17,000 jobs in April and 119,100 in the past year. More than half of April’s job gains were in construction. The state has gained 15,500 construction positions in the past year. Jobs in trade, transportation and utilities have grown by more than 40,000 in the past year. The category includes retail jobs.

Nevada had the highest unemployment rate last month, at 9.6 percent. But it also had the biggest decline of any state over the past year, falling from 10.7 percent. Part of that decline is because many people have given up on their job hunts. But the state has also gained 22,700 jobs in the last 12 months.

North Dakota reported the nation’s lowest unemployment rate, at 3.3 percent. The state has benefited from an oil and gas drilling boom.

Holding: The parties’ relationship was one of home security company and customer, i.e., contractual. It does not fit within either of the categories in which the S.C. Supreme Court has found that a special relationship (one marked by a professional duty or supervisor-supervisee) imposes extra-contractual duties. Plaintiff has not explained why defendant’s duties to a wheelchair-bound double amputee may be any different than they would be to an able-bodied customer. Therefore, plaintiff’s negligence action fails.

The court grants summary judgment to defendant on all claims other than breach of contract. Plaintiff’s contract damages are limited to $500.

The parties have not offered explanations as to how and why plaintiff’s alarm system malfunctioned. As a result, questions of material fact persist as to whether defendant breached the parties’ alarm services contract.

The contract clearly limits defendant’s liability to $500. The exculpatory clause was in all caps. Plaintiff’s argument that the clause is unenforceable because it was printed in small font is unavailing. Furthermore, plaintiff’s decision not to read the contract does not invalidate it. Even if defendant’s monitoring system or personnel failed in some way, such a failure falls within the scope of the contract’s exculpatory clause.

Nothing in the record supports plaintiff’s contention that the parties bargained on unequal footing. Plaintiff was under no obligation to obtain fire and theft monitoring. Once he chose to do so, defendant was not his only choice. Finally, plaintiff has never suggested that his cognitive abilities are limited in any way. The court finds that the parties were on roughly equal footing.

Summary judgment is inappropriate as to plaintiff’s breach of contract claim. However, defendant’s liability is limited to $500.

In support of his unfair trade practices claim, plaintiff points to defendant’s marketing materials; however, these materials neither promise to insure customers against all damages nor suggest that defendant accepts unlimited liability for customers’ losses. Even assuming that defendant regularly limits its liability to $500 in its alarm services contracts, such a limitation of liability is not an unfair or deceptive act. Defendant is entitled to summary judgment on plaintiff’s unfair trade practices claim.

Plaintiff surely suffered severe emotional distress while trapped inside his burning home. However, he has not alleged facts that demonstrate that defendant caused the fire or that defendant intentionally and recklessly ignored distress signals from his house.

Insofar as plaintiff alleges that defendant inflicted emotional distress on him through its attempts to obtain monthly payments after the fire, the repeated phone calls of which plaintiff complains do not rise to the level of extreme and outrageous conduct contemplated by an intentional infliction of emotional distress claim. Furthermore, defendant stopped contacting plaintiff after he terminated the contract in writing, per the terms of the contract. Plaintiff has failed to show that defendant’s actions caused him severe emotional distress.

Motion granted in part and denied in part.

In addition to the rise of computer-assisted review, attorneys are struggling with three other concerns related to electronically stored information, or ESI: defensible deletion, cost-shifting and the use of clawback agreements.

Here is a look at how these issues arise in cases and what attorneys need to know about dealing with them.

Defensible deletion 

As the amount of ESI continues to grow exponentially, companies are faced with an overwhelming burden.

For lawyers, the amount of a company’s data can present a huge problem in discovery, and “defensible deletion” may be the answer. Practically speaking, it means that companies can delete ESI and not be held accountable by a court.

Defensible deletion “is the new catchphrase for the notion that less is more,” said Robert Brownstone, technology and e-discovery counsel and co-chair of the electronic information management practice group at Fenwick & West in Silicon Valley.

To establish a “defensible deletion,” a company must craft a data retention and deletion policy and follow it.

Such a policy establishes “a reasonable argument to justify why you got rid of electronic data should there ever be a challenge,” said Andrea Gibson, product director for discovery at Kroll OnTrack, an Eden Prairie, Minn., computer forensics company that specializes in electronic evidence.

By having an established policy in place that is enforced, companies can decrease their data and be able to defend themselves in court if an opposing party seeks ESI.

“Not only does a policy decrease inefficiencies and storage costs, it decreases risk and cost when an inevitable lawsuit hits,” Brownstone said.

The policy should include two important provisions, he advised: a litigation hold section and a section that relates to departing employees.

In the best case scenario, the litigation hold section will list each employee and what the triggers are to initiate a hold — under which data cannot be deleted — as well as identify the person at the company responsible for deciding whether to issue a hold in a given situation.

For departing employees, ensure that a written protocol includes a defined time period before their data are deleted and requires approval of any deletion by a lawyer or HR person (or both), Brownstone said.

“Both anecdotally and in case law, we see time and again, an employee leaves a company and months later [his or her] email or files become pertinent to discovery in a lawsuit,” he said.

Having a policy allows a company to show a court “that it didn’t intentionally get rid of data but was going through a normal process,” Brownstone said. “If you don’t have [a policy], it’s going to be really hard to fend off a claim where the timing looks suspect.”

Gibson emphasized the importance of implementing the policy to the letter.

“You can have the most fantastic policy in the world but if you don’t follow it, it won’t be much help.”

Cost-shifting 

The cost of electronic discovery rises with the growing amount of ESI. To combat this problem, parties often seek to shift some or all discovery costs to the opposing party, particularly in cases with “asymmetrical discovery,” in which one party has much more data than the other, Brownstone said.

The seminal opinion on cost-shifting was authored by Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York in Zubulake I, which established a seven-factor test for cost-shifting.

But a recent decision from the Eastern District of Pennsylvania is illustrative of the continuing issues facing litigants.

In Vaughn v. LA Fitness, the plaintiff sought class-action certification in a suit alleging that the gym chain had improperly billed members.

The plaintiff requested a variety of corporate documents relating to member cancellation which LA Fitness said were archived at an outside storage facility and would be costly to produce. The company argued that it had already produced a substantial amount of discovery at its own expense and that the plaintiff should be forced to shoulder some of the burden.

U.S. District Judge Michael Baylson agreed. He held that the plaintiff must pay for discovery if they wished to search for additional ESI to support their motion to certify a class.

“The fact that defendant has more documents than plaintiffs does not necessarily mean that defendant’s production should be limited. However, as in this case, where the cost of producing documents is very significant, the court has the power to allocate the cost of discovery, and doing so is fair,” Baylson wrote. “If plaintiffs’ counsel has confidence in the merits of its case, (he or she) should not object to making an investment in the cost of securing documents from defendant and sharing costs with defendant.”

The court recognized that by certifying a class in the case, the potential damages could run in the millions of dollars.

Big data has resulted in huge requests for ESI, and discovery can become a weapon in a case. Cost-shifting allows parties to manage huge requests so that they do not deflect from the merits of the case, Gibson said, something the Pennsylvania court recognized.

“The court is firmly of the view that discovery burdens should not force either party to succumb to a settlement that is based on the cost of litigation rather than the merits of the case,” Baylson wrote.

“This is a great case and the first decision where a judge really does an analysis of an asymmetrical case,” said Anne Kershaw, a lawyer and electronic discovery consultant at Anne Kershaw P.C. in Tarrytown, N.Y. “It really opens the doors for more lawyers to be making cost-shifting arguments.”

Federal Rule of Evidence 502 

In 2006, the Federal Rules of Civil Procedure were amended to include a “clawback” procedure through which lawyers, invoking a work-product or attorney-client privilege, may go to court to try to get back already produced data.

Federal Rule of Evidence 502 was amended in 2008 to create a protocol for the process. At the beginning of a federal case, attorneys may enter into an agreement about what will happen if discovery is inadvertently produced to the opposing party. The parties may even choose to have the agreement entered by the court.

Kershaw, who testified before Congress in support of enacting the rule, said she uses such orders “as a matter of course” in her practice.

But it appears she may be one of the few.

Recently, U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York — author of the landmark Da Silva Moore v. Publicis Groupe computer-assisted review decision — spoke about Federal Rule of Evidence 502, calling it “malpractice” for lawyers not to seek such an order.

“I agree with Judge Peck,” Brownstone said. “It is extremely important in every case, not just in federal court, to at a minimum consider some sort of clawback agreement. A lawyer can’t know at the beginning of a case what is going to leak through.”

Gibson also advises clients to use a 502 order, although she acknowledged that many are unfamiliar with the concept.

“It is a little-known and little-used rule for the time being,” but Peck’s call to arms will likely change that, she said.

Lawyers should be sure to specify in their agreements that “there will not be a waiver of any privilege regardless of the circumstances by which production was made,” Gibson suggested. “That way, they are covered if the production was inadvertent or due to an error by a service provider or however else it occurred.”

Brownstone added that if the parties choose to have the court recognize the agreement, they receive added protection. The non-waiver of privilege in a court order not only binds the parties in that case but also binds future litigants who might try to use the advertently produced information.

“Why wouldn’t you want to protect your privilege early on?” Brownstone asked. “The real risk is in not even considering using it.”

Eric Schuller, a director with Oasis Legal Finance, said money his company provides to plaintiffs shouldn’t be treated as a loan because clients are under no obligation to pay if they don’t recover.

“All we do is give the consumer a modicum of money so they can just hang on until their case settles,” Schuller said. “We’re just giving them enough money to pay a few bills and put food on the table. Our average consumer is someone who works paycheck to paycheck but because they missed two or three paychecks they’ve fallen behind on their bills.” Schuller said. The money, he said, often helps prevent evictions and repossessions.

Schuller said the average payment is less than $2,000 and that the interest rates charged were necessary because the company gets less than the full return it contracts for almost half the time, less than what it provides plaintiffs almost a quarter of the time and nothing about 10 percent of the time. With all those cases included, he said that for every $1,000 Oasis provides its typical return is about $1,700, with an average of 28 to 30 months between disbursement and settlement

But David Yarborough, a personal injury attorney in Charleston, says his firm discourages such contracts and would never knowingly participate in any agreement where a company would get a portion of the proceeds of a lawsuit, for fear that very little money is left over for the client once all other costs are paid. In one instance where a client did sign such a deal without his knowledge, the client wound up owing several times more than what he borrowed.

“It’s just a bad idea and I’m not comfortable doing that because it makes it more difficult to resolve the case and then it ends up coming back to hurt the client in the long run,” Yarborough said. “I’m not going to let a client put me in a difficult ethical, legal or business position and decline to take a reasonable offer because they borrowed money early on the case, and the interest has compounded.”

The U.S. Chamber of Commerce also opposes the practice, arguing that it encourages frivolous cases and dragged-out settlements.

“It interferes with the ability of the plaintiff and the defendant attorneys to reach agreements for their respective clients,” said Gary J. Salamido, of the North Carolina Chamber. “Anything that gets in the way of that potentially could make settlements larger and inject a variable in there which doesn’t exist right now that has no bearing on that case.”

Schuller said getting his customers bigger settlements was the point. He said financing allows plaintiffs to hold out for fair settlements rather than being forced into accepting pennies on a dollar to secure money to pay mounting bills, and insurers are the ones intentionally dragging cases as a tactic to reduce payouts.

“Our opponents say it disincentivizes people from settling a case, but it’s actually just the opposite because the quicker they settle a case, the less they owe us,” Schuller said. “The defense firms are all paid hourly, so who has more incentive to drag things out a little longer?”

Schuller also said his company has no interest in taking frivolous cases since it only gets paid in the event of a recovery and that it makes no effort to influence the litigation process. The company insists that plaintiffs notify their attorneys of all transactions.

Charles Silver, a law professor at the University of Texas, compares litigation financing to carrying liability insurance, and argues that if insurance coverage for defendants is not a problem, then litigation funding for plaintiffs shouldn’t be.

“Opposition to this comes from the traditional business sector,” Silver said. “They claim to want to protect plaintiffs from high interest charges, but this is a classic wolf in sheep’s clothing argument … They realize that this is potentially a game changer.”

Follow David Donovan on Twitter @SCLWDonovan

John Herndon pled guilty to assault and battery of a high and aggravated nature in order to avoid trial on charges of sexual misconduct with a minor. He entered an Alford plea, named after a U.S. Supreme Court case holding that a defendant is allowed to consent to punishment even if he is unwilling or unable to admit he participated in the crime.

Under the plea bargain, the court suspended Herndon’s ten-year prison sentence in favor of five years’ probation and required him to successfully complete sex abuse counseling. According to the terms of the plea, Herndon would face lifetime sex offender registration if he failed to successfully complete sex abuse counseling.

Circuit Court Judge D. Craig Brown told Herndon that “If you enter your plea, even if you say it’s under Alford, you subject yourself to being sentenced just like you were pleading guilty straight up.” But Herndon was never specifically informed that one of the conditions for completing sex abuse counseling was that he would have to accept responsibility for the abuse.

After Herndon failed a polygraph examination, he refused to take an additional one required by his counseling, saying he did not want to admit guilt to a sex offense. He was terminated from his counseling for non-compliance, and the circuit court ordered him to register as a sex offender. Herndon appealed, arguing that he should not be required to admit guilt as part of an Alford plea, or at least that he should have been informed of this requirement prior to his plea.

The Supreme Court unanimously rejected both arguments, saying that its previous decisions clearly established that in South Carolina there is no significant distinction between a standard guilty plea and an Alford plea.

“The Alford plea does not create a special category of defendant exempt from the punishment applicable to her conviction. Thus, circuit courts are under no duty to provide notice to Alford defendants any differently than the notice provided to defendants entering a standard guilty plea, or those defendants adjudicated guilty,” Justice Jean Hoefer Toal wrote for the court.

The court said that while an Alford plea may provide advantages to both the state and the defendant by obviating a humiliating public admission of guilt, it is “merely a guilty plea with the gloss of judicial grace allowing a defendant to enter a plea in her best interests,” and a defendant is not owed anything different as a result of it.

The 12-page decision is State v. Herndon (Lawyers Weekly No. 010-052-13). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

At least one member of the class of 2013 wasted no time in defying the gloomy employment forecast. Roy Willey marched in Charleston School of Law’s commencement exercises on May 11, helped pick a jury on May 13, and showed up for opening statements of his first trial on May 14. To be fair, he graduated in December, so he had a few months’ lead on everyone who just finished up — but still, it’s impressive.

“I’ve never taken a day off, I don’t think, in my life,” he said. “I don’t really do vacations so much.”

If Willey’s name sounds familiar, that’s because he’s made the Sidebar page before. A Harvard undergraduate, Willey gained national notoriety last spring when he founded The Society of the Gavel and invited a select few of his Charleston School of Law classmates to an exclusive soiree. The uninvited heard about the shindig, and a cyberspace brouhaha ensued as Charleston students trashed each other anonymously online. Willey graduated a semester early.

Yes, that’s him, Willey confesses somewhat sheepishly. And The Society of the Gavel still exists. It was a way to make connections and lay the foundation for a legal career that he hopes will keep him in South Carolina. His mother is from here and Willey says he hopes to stick around.

Willey has been working as a clerk at the Charleston-based Anastopoulo Firm. The 26-year-old called to tell us about how he hit the ground running after his boss remarked that in 30 years of practice, he had never seen anyone pick a jury on the day they were sworn in. He will work with Eric Poulin in trying Beczynski v. Town of Summerville, a well-publicized case that revolves around a girl paralyzed in an ATV wreck.

“I have been working on it all along because I was a law clerk,” he said. “Akim (Anastopoulo) told me about 10 days ago that I was going to be trying it.”

Willey said he graduated “cum laude — whatever that means.”

We’re guessing he knows. Modesty seems to be the only thing he doesn’t do well.

From 1999 to 2005, Lauren Proctor dropped anywhere from $1,000 to $5,000 a week on video poker at the Rockaways Athletic Club and Pizza Man restaurants in Columbia, even though the state banned video poker in 2000. The owners provided her with cash advances to fund her gambling addiction (and alcohol to fuel it). To cover that debt, Proctor embezzled over $500,000 from her employer, which she must pay back as part of her plea bargain. So she sued the restaurants’ owners to recover the money.

The owners asked to dismiss the claim on a theory of in pari delicto. (It’s Latin for “both parties are at equal fault.” Have we mentioned how much we dislike Latin?) But the Court of Appeals upheld the circuit court’s decision to award summary judgment in favor of Proctor, saying that the state had abolished the doctrine of in pari delicto for gambling losses.

The court said that owners of video poker machines and the players who use them are not truly equally at fault because oftentimes a habitual gambler is acting under the sway of “uncontrollable impulses.” (That’s always our go-to excuse.) Allowing gamblers to recover their losses serves public policy by protecting gamblers’ families and discouraging illegal gambling, the court said. As such, Proctor is entitled to recover for her losses.

Proctor only stopped bleeding money when the restaurants were caught in an FBI sting. It’s not clear how much she’ll actually be able to claw back, but there’ll be time enough for counting when the litigating is done.

Former Dorchester County magistrate Arthur Tuggle Bryngelson Jr. now knows that he was in over his head when he traded in his hardhat for a robe in 2009.  “I didn’t know any better,” he said. “I wanted to be a do-gooder, to do justice. I thought I could contribute fairness and justice in support of our police.”

Bryngelson was nominated to the bench by then-Sen. Michael T. Rove, who along with Bryngelson is a Republican. Aside from that connection, though, it seems that Bryngelson had no business holding a gavel. By his own estimate, he decided some 3,000 minor civil, criminal and traffic cases every year.

Considering his admitted ignorance of the law, it’s pretty impressive that he lasted for two years and eight months before a series of missteps led to his suspension, resignation and a recent public reprimand from the S.C. Supreme Court.

Bryngelson said he received 50 hours of legal training from the S.C. Bar before he was allowed to take the bench. He also had to pass a certification exam. That, and a few hours of continuing legal education annually, is all that is required of the Palmetto State’s non-lawyer magistrates.

It was during a continuing education course that Bryngelson said he realized he’d committed an ethical violation earlier by taking money out of his own pocket to pay the bond of a defendant accused of violating a domestic order of protection. Before taking out his wallet, Bryngelson lowered the bond from $2,300 to $10.

“The guy didn’t have a dime in his pocket. So I told him, ‘Don’t worry about it,” Bryngelson said. He acknowledged that he could have released the defendant on personal recognizance, but he didn’t know how to make that change in the court computer and his tech-savvy bond clerk wasn’t around.

“I’m not very computer efficient,” Bryngelson explained.

Bryngelson self-reported his violation to the state Office of Disciplinary Counsel. He also said he told the office about two other violations.

He’d signed a paper stating that he’d witnessed the family member of a defendant accused of vandalizing his girlfriend’s car pay the victim restitution. And he let a defendant accused of telephone harassment plead guilty when the victim and arresting officer were not in the courtroom.

“These are all technical violations,” Bryngelson said. “It wasn’t malicious. I did not mean to violate any standard. It was a lack of education that led me to it.”

When Bryngelson blew the whistle on himself he set in motion a disciplinary office investigation that turned up two more violations.

He had his bond clerk change a finding of guilty to not guilty in an expired license tag case. And he denied a request for a restraining order against a police officer after telling the petitioner that the order would damage the cop’s career.

The disciplinary office temporarily suspended Bryngelson in 2011 during its investigation and he resigned a short time later. The state Supreme Court publicly reprimanded him on May 8, noting in its order that this was the most severe sanction the court could impose since he had already stepped down from the bench.

The Old Dominion is one of eight states in America to have a residents-only FOI law (The others are Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey and Tennessee).

The high court’s reasoning in McBurney v. Young apparently hinged on economics. Virginia can draw a distinction between residents and nonresidents because the people in Virginia are the ones who pay the fixed costs required for agency recordkeeping. A nonresident does not foot that bill, so the law is a valid exercise of state power.

You can bet a big wad of cash that some wise guy or gal in another legislature somewhere will get the bright idea that it should adopt a similar law as a means to save money. And you can bet further that this individual probably won’t have the research or the numbers to back the proposal when that bill is filed: Out-of-state FOIA requests likely do not take up huge amounts of resources at state agencies.

There is general undercurrent of disdain for the Freedom of Information Act in the high court’s opinion, written by Justice Samuel A. Alito Jr.

The FOIA and other good-government laws were passed to provide transparency for the public and to keep government accountable. They were designed to provide a relatively easy process for citizens to learn what their government is up to without having to slog through a byzantine system.

Alito misses the point. In the McBurney opinion, he reduces the function of FOIA laws to providing a “service.”

Writing for a unanimous court, he said, “Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all.”

Really?

A nonresident of Virginia may have a valid reason for seeking governmental information. The plaintiffs in McBurney were a guy in Rhode Island seeking state child support info and a man in California looking for data on property assessments in Henrico County.

These requests are typical of the FOIA inquiries sought by out-of-staters.

Megan Rhyne, executive director at the Virginia Coalition for Open Government, the state’s FOIA watchdog group, reported that she had dealt with the following actual requests: A woman in Indiana trying to get nursing home data for placement of her elderly mother. A grad student in Alabama seeking election data for a school project.  A man in Bristol, Tenn., worried about the condition of a bridge across the border in Bristol, Va., seeking inspection data.

Here’s the thing about the Virginia FOIA statute that spurns out-of-state requests. It’s awfully easy to circumvent.

All a nonresident has to do is to ask someone within Virginia to make the FOIA request. You might even see some entrepreneurial type start offering to handle that service for a fee. (FOIA ’R’ US, anyone?)

Or you may see informal arrangements between businesses or companies to make FOIA requests, similar to the way that a law firm near a state border will work with another firm on the other side of the state line. All it takes is a resident’s signature, and the lawsuit — or FOIA request — is ready for filing, all nice and legal.

So if anyone in another state legislature still thinks a nonresident FOIA is a good idea, think twice. The Supreme Court has allowed a law that sets up an easily avoided hoop that renders the law pretty meaningless. And do other states really need a meaningless law on the books?

Rhyne said that the lawyer representing Virginia, when making his argument to the Supreme Court in the McBurney case, referred to FOIA laws as a “fad” of the 1960s.

A fad? No, that’s wrong. A fad is something that goes out of style.

Paul Fletcher is publisher and editor-in-chief of Virginia Lawyers Weekly