Carroll v. Merrill Lynch, No. 12-1076 (7th Cir. October 16, 2012)
Late in the evening on Thanksgiving Day 2005, plaintiff called her co-worker at home and started yelling profanities. The co-worker’s wife picked up another phone on the line and, becoming alarmed at the threatening nature of the conversation, began recording the call.
Plaintiff sued under the Illinois eavesdropping statute, 720 ILCS 5/14. Defendants moved for summary judgment, arguing that the recording was covered under the “fear of crime” exception to the statute. The lower court granted the motion for summary judgment and plaintiff sought review with the Seventh Circuit. On appeal, the court affirmed the award of summary judgment.
The Illinois eavesdropping statute prohibits recording a conversation unless all parties consent to the recording. But that general rule is subject to a bunch of exceptions, such as recordings made:
under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording
In this case, the court held that the wife had both a subjective and objective belief that the plaintiff would, at minimum, vandalize their home. Since plaintiff introduced no evidence to create a genuine issue of material fact on the question of the wife’s asserted fear of a crime being committed, summary judgment had been properly granted.
Bowden v. Kirkland & Ellis, 2011 WL 1211555 (7th Cir. April 1, 2011)
Two former employees of a law firm sued the firm for violation of the Electronic Communications Privacy Act, 18 USC 2510 et seq. and for violation of the Illinois Eavesdropping Act, 720 ILCS 5/14-2. The district court granted summary judgment in favor of the law firm. The former employees sought review with the Seventh Circuit. On appeal, the court affirmed the grant of summary judgment.
The court held that the former employees’ evidence of eavesdropping raised no more than a “theoretical possibility” of a violation. Even one of the strongest experts in the case triple hedged his testimony, saying the records “could indicate the potential that interception may have occurred.” So the grant of summary judgment was proper.
The plaintiffs had also raised an electronic discovery issue, namely a claim that the law firm spoliated evidence by destroying a server that contained phone records relevant to the case. The court rejected that argument, finding no credible evidence that the destruction was undertaken in bad faith.
Caro v. Weintraub, 2010 WL 4514273 (D. Conn. November 2, 2010)
Stepson who used iPhone to record conversation about dying mother’s will may be liable for invasion of privacy and infliction of emotional distress.
This past summer the case against a man accused of using his iPhone to surreptitiously record a family conversation about his dying mother’s will got some attention when the court dismissed the stepfather-widower’s claim for violation of the Electronic Communications Privacy Act.
But the dismissal of that case was not the end of the story. Plaintiff had filed a separate lawsuit, claiming, among other things, invasion of privacy (by intrusion upon seclusion) and intentional infliction of emotional distress. Defendants (the allegedly eavesdropping iPhone user and his brother) moved to dismiss the invasion of privacy and emotional distress claims. The court denied the motion.
Plaintiff alleged that four days before his wife (defendants’ mother) died, defendants and some other family members came over to the house to discuss the mother’s will. Unbeknown to plaintiff, one of the defendant brothers allegedly used his iPhone to secretly record the conversation. In the subsequent litigation over the mother’s estate, the stepsons attempted to use an allegedly altered version of the recording as evidence.
The court found that the act of secretly recording the conversation could constitute invasion of privacy. Whether it actually happened the way plaintiff claimed will be decided later by a jury. But the judge found that a jury was entitled to make that determination. Plaintiff’s claims that defendants surreptitiously recorded an intimate conversation about a family member’s will qualified as an offensive intentional intrusion in private affairs that could be highly offensive to a reasonable person.
As for the intentional infliction of emotional distress claim, the court found that defendants’ alleged conduct “exceed[ed] all bounds usually tolerated by decent society.” As with the invasion of privacy claim, the question of liability will go to a jury (unless the case settles, of course.)
McCann v. Iroquois Memorial Hospital, No. 08-3420 (7th Cir. September 13, 2010)
Mystery of how doctor’s dictation machine got turned on to record conversation between doctor and hospital employee is a question for the jury and should not have been decided on summary judgment.
Two hospital employees — Dr. Lindberg and the director of physician services, Ms. McCann — had a conversation behind the doctor’s closed office door that the two of them thought was private. In their conversation, the two of them criticized hospital administration. But they did not know that the doctor’s dictation machine was recording what they said.
How that machine got turned on is a mystery. Dr. Lindberg had been dictating radiology reports a few minutes before Ms. McCann arrived, so he may have accidentally left the machine running. But the recording of the conversation started in mid-sentence, which discredits that theory.
A member of the hospital’s transcription staff, Ms. Freed, is alleged to have come into the room during this conversation to pick up some papers, and Dr. Lindberg and Ms. McCann believe she surreptitiously turned on the machine. That would seem a plausible explanation, given that Ms. Freed supposedly had an axe to grind with Dr. Lindberg.
The recorded conversation made its way to the transcription staff, and after it was typed out, Ms. Freed forwarded it to the hospital’s CEO. Dr. Lindberg and Ms. McCann filed suit against Ms. Freed and others under the Electronic Communications Privacy Act. They claimed that by secretly turning on the dictation machine and forwarding the transcript, Ms. Freed violated the statute.
The district court granted the defendants’ motion for summary judgment. Plaintiffs sought review with the Seventh Circuit. On appeal, the court reversed in part, finding there was a genuine issue of material fact as to whether Ms. Freed was in the room and secretly turned on the dictation machine.
The court of appeals held that whether Ms. Freed was in the office on the date the recording was made was merely the subject of a “swearing contest,” and that summary judgment is not appropriate to resolve such a contest. The lower court had based its grant of summary judgment largely on the contents of the recording. At the end of the conversation, one can hear the office door close as Ms. McCann leaves. But one cannot hear the door shut with Ms. Freed would have left, during the conversation and after she allegedly turned on the dictation machine.
Viewing the facts in the light most favorable to the plaintiffs, the court found that the absence of such a sound did not prove that Ms. Freed was not there: “[N]othing in the record tells us whether the door could have been closed silently; . . . [Ms.] Freed who was conscious that she was intruding (and, perhaps, that she was being taped) may have closed the door softly to be inconspicuous.”
So the court found that whether Ms. Freed was responsible for making the recording — and by extension whether Ms. Freed intentionally intercepted the conversation between Dr. Lindberg and Ms. McCann in violation of the ECPA — was an issue for the jury, and not one for summary judgment.
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Evan Brown is an attorney in Chicago helping clients identify and manage issues with technology development, licensing, copyright, trademarks, domain names, service agreements and other matters involving the internet and new media.
Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).