Private Prison That Recorded Attorney-Client Privileged Conversations Can Be Sued
Most jurisdictions have held that prisons must inform inmates if they are recording attorney-client conversations from prison. Otherwise, inmates may have an expectation of privacy and recording those conversations could violate the prisoner's Fourth or Sixth Amendment rights and the federal Wiretap Act. The Wiretap Act, which prohibits any entity from intercepting communications without the knowledge of the people involved in the conversation, specifically provides a civil cause of action for violations.
That is exactly what Kathleen Bliss, a criminal defense attorney practicing in Nevada, alleged in a class action suit. According to the complaint, a private prison in Nevada routinely recorded prisoners' calls without their knowledge.
CoreCivic runs a private detention facility in Nevada. According to Bliss, the company recorded the phone calls between her and her clients throughout the summer of 2016 and beyond. However, she only found out about the recordings when the government provided the recorded transcripts of what she had assumed were privileged calls on June 26, 2016. The attorney did not learn of these discovery materials until September, at which time she informed the court and the government, believing this would stop the practice.
It didn't, and CoreCivic continued to record calls between the attorney and her clients in the prison. Two years later, Bliss sued CoreCivic under the Wiretap Act. By then, the district court held, the statute of limitation had run and her class action suit was dismissed.
Not So Fast, My Friend
The Ninth Circuit partially reversed on appeal. While the attorney could reasonably have known about the recording beginning in June, 2016, each time the private prison recorded the calls it was a separate violation of the Wiretap Act, the unanimous panel held. “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." As such, the statute of limitations had not run for each separate instance the prison recorded an attorney-client discussion without their knowledge.
It wasn't all good news for the attorney, however. The appeals court held that any violations made prior to June 27, 2016, were time-barred, which could affect the potential damages involved. The case returns to district court to continue with the remaining claims.
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