Updates: SSM Oral Arguments Extended to 1 Hour; Lavabit Denied - U.S. Fourth Circuit
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Updates: SSM Oral Arguments Extended to 1 Hour; Lavabit Denied

We have a couple of updates on ongoing Fourth Circuit litigation for you today.

In the Virginia same-sex marriage battle, oral arguments have been extended to an hour, rather than the typical 30 minutes, to account for the intervening parties.

And last week, the Fourth Circuit denied relief to Lavabit, the private email service that was held in contempt for failing to comply with a court order. The secure email service chose to shut down rather than comply with an order that would have violated its users' privacy. Then the company turned its eyes toward the courts, hoping that the Fourth Circuit would nix the order. Unfortunately, procedural gaffes doomed the company's claims.

Bostic v. Schaefer: May 13, 30 Minutes Per Side

A joint request for extended oral arguments in Virginia's same-sex marriage litigation was granted by the Fourth Circuit yesterday, with each side being& allotted 30 minutes, reports Equality on Trial. The extension was requested, and granted, because of the intervention of two parties, Lambda Legal and the American Civil Liberties Union.

These third parties are involved in a parallel class-action litigation, Harris v. Rainey, that will almost certainly be affected by the outcome of Bostic.

Lavabit: Need More and Better Lawyers?

Might we chalk this up to bad lawyering?

Lavabit was hoping that the Fourth Circuit would hear its challenge to the Pen/Trap Order and the corresponding statute. Instead, the panel punted on the issue because of procedural gaffes, first at the trial level:

In the district court, Lavabit failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way. Yet on appeal, Lavabit suggests that the district court's demand for the encryption keys required more assistance from it than the Pen/Trap Statute requires.

Then at the appellate level:

Lavabit failed to make its most essential argument anywhere in its briefs or at oral argument: it never contended that the district court fundamentally or even plainly erred in relying on the Pen/Trap Statute to compel Lavabit to produce its keys. Yet Lavabit bears the burden of showing, "at a minimum," plain error. And a party's failure to raise or discuss an issue in his brief is to be deemed an abandonment of that issue. Taken together, these two principles carry us to one inevitable conclusion: Lavabit's failure to argue for plain error and its application on appeal surely marks the end of the road for its argument for reversal not first presented to the district court.

Which leaves the company up the fecal creek without a paddle, so to speak:

In view of Lavabit's waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order.

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