THE “ATTORNEY-CLIENT” PRIVILEGE: How, When (and Why) the Communications between You and Your Attorney are Protected - Part 1

A rear-end collision is a unique animal in the law. Plaintiff’s attorneys seek them out, and insurance companies fear them­­--sometimes for good reason. The "rear-end" accident is unique because proof of the mere fact that one vehicle strikes the rear of another creates a strong legal presumption of fault under La. R.S. 32:81. While this presumption is formidable, it may be overcome.

The rear-end presumption is premised upon the duty to not follow too closely and the law will assume that the following driver breached this duty when there is impact. However, the following driver can escape liability if he shows that his vehicle was under control, that he followed at a safe distance, and that the lead driver negligently created a hazard which could not have reasonably been avoided. For instance, if it is shown that the reckless or unpredictable driving of the lead motorist created a sudden emergency, the following driver will not be at fault. Brewer v. J.B. Hunt Transport, Inc., 35 So.3d 230 (La. 2010). Once established, the sudden emergency defense trumps the “rear-end presumption.”A "sudden emergency" is created when a driver is placed in a position of imminent peril that he or she did not create through their own conduct. Hickman v. Southern Pacific Transport Company, 262 So.2d 385 (La. 1972). When a driver can demonstrate the existence of a sudden emergency, they are not negligent for failing to do what a reasonable person might have done to avoid the accident had they been given enough time to assess and react to the situation.In Jewitt v. Alvarez, 179 So.3d 645 (La. App. 2 Cir. 9/30/15), a following driver who rear-ended the vehicle of the lead driver was free from fault as a result of the sudden emergency defense where the facts revealed that the accident was solely caused by the slow speed of the lead driver (who almost came to a complete stop on the interstate) and the presence of surrounding traffic prevented the following vehicle from taking evasive action.In Carias v. Loren, 2015 WL 1019481 (La.App. 1 Cir. 3/9/15), an eighteen-wheeler was traveling in the middle lane of the interstate when a "phantom driver" moved without warning from the left lane to the middle lane and slammed on its brakes in front of the eighteen-wheeler. In attempt to avoid the collision, the driver of the eighteen-wheeler swerved to his right and impacted a vehicle which then struck the plaintiff's vehicle. The driver of the eighteen-wheeler invoked the sudden emergency defense; the court agreed and found the defendant-driver free from fault.Rear-end collisions are hard to defend, but a defendant may want to gather a clear understanding of all of the facts before accepting liability. If these facts support the sudden emergency defense, the driver may "walk."

Tim Berners-Lee, computer scientist and founder of the World Wide Web Consortium, famously stated, “We can’t blame the technology when we make mistakes.” One Louisiana appellate court disagrees.

In Worm v. The Berry Barn, LLC, 20-1086 (La. App. 1 Cir. 10/21/21), the Louisiana First Circuit utilized a broad interpretation of Louisiana’s fax-filing statute, La. R.S. 13:850. In Worm, the plaintiff was injured in an accident on October 7, 2018. Plaintiff’s counsel fax-filed the Petition to the Tangipahoa Parish Clerk of Court’s office on Friday, October 4, 2019. The next Monday, the Clerk sent a “Fax Filing Confirmation” to Plaintiff’s counsel. Plaintiff’s counsel filed the original Petition with the Clerk of Court on October 11, 2019.

Defendants filed an exception of prescription, arguing that the faxed Petition did not interrupt prescription because Plaintiff’s original Petition was not “identical” to the faxed Petition, as required by La. R.S. 13:850. Defendants correctly pointed out that portions of the first and second pages of the fax filed Petition were “cut off … thereby eliminating some of the substance of plaintiff’s allegations.” Plaintiff opposed the exception, arguing that any error in the receipt or printing of the fax filed petition was attributable to the Clerk of Court and/or its fax machine.

The trial court recognized that the difference between the fax filed Petition and the original Petition was “ultimately the result of, we think a machine error.” Nevertheless, the court sustained defendants’ exception and dismissed plaintiff’s claims as prescribed. Plaintiff appealed.

The First Circuit Court of Appeals noted that Louisiana’s prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. The court held, “There is no dispute that the physical copies contained in the record show that the fax filed petition and the original petition are different. However, the differences are due to missing as opposed to substantively different or altered portions of the petition. … As reasoned by the trial court, the apparent error in receipt and printing of plaintiff’s fax filed petition by the Clerk of Court was attributable to ‘machine error …’” The First Circuit held that the fax filed Petition interrupted prescription and reversed the decision of the trial court.

While the explicit language of La. R.S. 13:850 requires that a fax filed pleading be “identical” to the original pleading, the First Circuit’s decision in Worm suggests that the statute has at least some flexibility. Although the plaintiff in Worm was able to “blame the technology,” the impact of the decision may ultimately be limited to its specific facts where the “machine error” was caused by the Clerk’s system.

Under the Copyright Act of 1976, copyright protection “subsists in any original work of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived or otherwise communicated, either directly or with the aid of a machine or device.”^ The Act goes on to state that works that may receive copyright protection are not limited to script or printed material but may include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”^

Throughout its history, and despite the Act’s somewhat archaic language, copyright law has proven to be adaptable enough to cover all manner of works created with new and emerging technologies. However, the traditional understanding of copyright law is being challenged by the advent of artificial intelligence (AI) and its ability to produce new creations.

The US District Court for the District of Columbia. recently ruled that works created autonomously by AI are not susceptible of copyright protection. In Thaler v. Perlmutter, Stephen Thaler appealed an administrative decision by the United States Copyright office denying his application to register the copyright for an image generated by an AI program he developed. The court’s decision examined the meaning of what it means to be an “author,” as defined by the Copyright Act and held that only works of human authorship are susceptible of copyright protection under U.S. law.*

The court compared the issue to a case from 1884 that examined whether copyright protection could extend to the then-cutting edge field of photography. In Burrow-Giles Lithographic Co. v. Sarony, it was argued that a photograph should not qualify as a protected work because it was created by a camera. The US Supreme Court disagreed and held that while a camera may generate a “mechanical reproduction” of a scene, it does so only after the photographer develops a “mental conception” of the photograph^^. The court reasoned that the technology used to create the work was immaterial so long as there was human involvement in and creative control over the work.

In a later case, the US Ninth Circuit examined a case in which a crested macaque monkey took a photograph of himself, and various parties attempted to file suit on the monkey’s behalf to confirm copyright protection for the monkey’s photograph.** While the case was decided on standing grounds, the court considered whom the Copyright Act was designed to protect and concluded that the act was designed solely to protect humans.

The Thaler court identified no authority supporting copyright protection in any work originating from a non-human.* However, the issue presented in Thaler was limited to copyright protections for a work created solely by an AI, absent any human input. Therefore, it remains to be seen how courts will address issues related to copyright protection for images that blend human and AI origins.

We stand in a new frontier in both technology and copyright law. As artists and developers increasingly use AI as a tool, the increased distance between human creativity and the final product will present challenging questions regarding how much human input is necessary to afford these creations protection under copyright law.*

References:

^17 U.S.C § 102(a)

* Thaler v. Perlmutter, No. 22-CV-01564-BAH, R. Doc. 24 (Filed 08/18/23).

^^ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884).

** Naruto v. Slater, 888 F.3d 418 (9^th Cir. 2018).