by David M. Reutter

The Ninth Circuit Court of Appeals held that each interception of an attorney’s privileged telephone is a violation of the federal and Nevada Wiretap Acts. As such, the statute of limitations is triggered anew for each intercepted call.

The court’s October 27, 2020, opinion was issued in an appeal brought by criminal defense attorney Kathleen Bliss. Her July 12, 2020, lawsuit alleged violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and Nevada Wiretap Act (collectively the Wiretap Act or the Act).

Bliss was given discovery in a client’s case on June 27, 2016. She did not review the discovery until late September, at which time she learned that CoreCivic recorded calls between her and her client on June 18 and 19, 2020, and gave them to the government. She continued communicating with her client in June and July.

Bliss “pushed’’ by telling the government and court about CoreCivic’s interceptions. Believing the interceptions would stop, Bliss resumed communicating with her client by phone. CoreCivic continued to record attorney calls until at least February 2019.

After Bliss filed her lawsuit on July 12, 2018, CoreCivic moved for summary judgment. It argued the suit was barred by the two-year statute of limitations. The trial court agreed.

At issue was the meaning of the phrase “the violation,’’ which triggers the Wiretap Act’s clock. The trial court concluded Bliss’ claims were time-barred in their entirety because she filed suit over two years after receiving the initial discovery on June 27, 2016.

The Ninth Circuit found that 18 U.S.C. § 2520(a) requires an action under the Act must be brought no “later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.” Looking at common and legal definitions of the word “violation’’ revealed it was “clear that the statute is referring to a singular violative event,’’ the Ninth Circuit wrote. “The plain import of these definitions is that interception is a discrete violation.’’

“There simply is no textual basis for morphing what otherwise would be considered separate violations into a single violation because they flow from a common practice or scheme,’’ the court continued. The Act’s “statutory-damages,’’ which provides for a per-day damages remedy, did not, as CoreCivic suggested, indicate that a course of conduct leading to multiple interceptions must be treated as a single violation.

Having found that “the violation’’ referred to each separate communication interception as a singular event, the court held it was an error for the district court to find Bliss’ claim was time-barred in its entirety. The Ninth Circuit affirmed the dismissal of claims based on interceptions that occurred prior to June 27, 2016. Claims based on calls that were recorded less than two years before Bliss filed suit on July 12, 2018, were not time-barred.

CoreCivic has faced legal claims in the past for recording attorney calls with detained clients. It and prison phone provider Securus Technologies were ordered by a Missouri federal district court in August 2020 to pay $3.7 million to resolve a Wiretap Act claim. In that suit, the companies were alleged to have recorded calls and turned them over to law enforcement officials and other parties.

The district court’s order was affirmed in part and reversed in part. See: Bliss v. CoreCivic, Inc., 978 F.3d 1144 (9th Cir. 2020). 

Additional source: Law360.com

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