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.