"Electric Snooping" - Is Recording Family Members Legal?

Forget about "Big Brother", start worrying about your "little sister". 

With I-Phones and I-Pads empowering everyone to record and disseminate all communications, privacy is rapidly evaporating and everything you say and do may be used against you.  

However, the wiretap laws not only make certain recordings unusable in litigation, but subject those making and subsequently using the recordings to criminal and civil penalties. 

Further, with rapidly developing technology and issues such as "multiple use smart phones", "shared phone plans", "spyware on children’s phones", and "GPS location applications", most existing wiretap laws require immediate and continued updating. 

Wiretapping Laws Overview 

Pennsylvania’s Wiretapping and Electronic Surveillance and Control Act, 18 Pa. C.S.A. §§5701 et seq. ("Act") extends the federal Electronic Communications Privacy Act, 18 U.S.C. §§2510 et seq., ("ECPA") wire, oral, electronic and stored communications' protections. 

The Act makes it illegal to record any person (including your spouse or child) or for any person (including your attorney) to attempt to use those communications in any way, including in litigation.  Specifically, the Act bars intentionally: (1) intercepting, endeavoring to intercept, or procuring any other person to intercept any wire or electronic or oral communication; (2) disclosing or endeavoring to disclose any wire or electronic communication's contents if aware, or having reason to be aware, that information was obtained through wire, electronic, or oral communication's interception; and (3) using or endeavoring to use wire, electronic, or oral communication's contents, or evidence derived there from, if aware, or having reason to be aware that information was obtained through wire, electronic, or oral communication's interception. 

However, it is only an Act violation to record an oral communication if speaker has a "reasonable expectation of privacy".  For example, because someone yelling at another in a public place has no reasonable privacy expectation, that conversation's recording would not be an Act violation. 

Confusingly, the statute is limited to actual or attempted interception of oral, electronic or wire communications; thus video recordings, without sound, are not currently subject to the Act. 

Also, the Act exempts certain communications recording and sharing from its coverage. First, under the Act, you may record communications if you have the consent of all parties to the communication (unlike the ECPA and New Jersey statute which only require one–party consent). 

Second, the Act permits "Police and Emergency Communications Systems Recordings" including 911 tapes. 

Third, any victim, witness, or private detective may intercept a communication if under a reasonable suspicion that intercepted party is committing, about to commit, or has already committed a crime of violence and evidence of that crime of violence may be obtained from interception. 

Criminal and Civil Penalties 

Act violations are a third degree felony punishable by up to 7 years in prison. 

The Act also imposes civil penalties including actual damages (computed at $100/day or $1,000, whichever is higher), punitive damages, and reasonable attorneys’ fees and costs. 

The Act also criminalizes unlawfully accessing stored communications including e-mails, voicemails and text messages.  Specifically, it is an offense to obtain, alter or prevent authorized access to a wire or electronic communication while in electronic storage by intentionally accessing, without authorization, a facility through which an electronic communication service is provided or exceeding the scope of one’s "facility access authorization".  

This Act also makes it illegal to read or use a spouse or significant other’s e-mails or text messages, the penalties for which range from $5,000-$250,000 fines and imprisonment. 

Wiretapping Laws and Developing Technology 

Two recent Pennsylvania Act cases - Commonwealth v. Spence, 91 A.3d 44 (Pa. 2014) and Commonwealth v. Diego, 2015 PA Super 143, ____ A.2d ____ (Pa. Super. 2015) - address wiretapping and the Act's definition of "device".  

Spence involved an I-Phone (which, as falling within "telephones 'device' definition exception", was deemed outside of the Act) and Diego regarded an I-Pad (determined to be an intercepting device outside of Act's telephone exception despite having identical capabilities of - and being used to text in the same manner as - - a smart phone).  

Spence and Diego's seemingly contradictory holdings point up the need to revise the Act and wiretap laws to accommodate modern technology and issues such as "multiple use smart phones", "shared phone plans", "spyware on children’s phones", and "GPS location applications".

Medical Marijuana in the Workplace

Confusingly, although federal law classifies it as a Schedule 1 drug (like heroin), medical marijuana is legal under the laws of 23 states including New Jersey.

 

In this ever shifting landscape, what policies must employers create - - and how will they be implemented and communicated - - as to: "drug testing", "zero-tolerance" complying with federal law but not violating state law permitted medical or recreational usage; and balancing "employee privacy protection" against "workplace safety and productivity" concerns.  

Increased Workplace Marijuana Usage 

Even before most states legalized marijuana usage, the number of workers testing positive for marijuana use increased by 6.2 % in 2013 alone. 

Anything impacting employees' ability to perform their job function is of concern to employers and, although state laws vary, none presently require employers to permit drug use in the workplace or tolerate employees reporting to work "under the influence".   

Thus, although employers may institute drug-free-workplace policies, how these policies are defined and implemented is critical, particularly for multistate workplaces in jurisdictions having conflicting marijuana usage laws. 

Drug Screening and Workplace Usage 

Pre-employment drug screening is legal in most states and requires that the applicant be notified.  However, because medical testing of employees may violate federal anti discrimination laws, requiring a drug test only after the applicant has accepted the job offer may be the safer practice.  

Federal regulations still prohibit marijuana use and require several classes of employees to undergo regular marijuana testing.  The Department of Transportation's ("DOT") "Drug and Alcohol Testing Regulations" bars "any 'safety-sensitive employee' subject to drug testing under DOT’s regulations to use marijuana”, which includes pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains and pipeline emergency response personnel. 

Similarly, the Americans with Disabilities Act ("ADA") does not require employers to allow marijuana use as a "reasonable accommodation" for someone with a disability, even if a registered medical marijuana patient, and has been interpreted by the federal appeals court as not protecting "medical marijuana users who claim to face discrimination on the basis of their marijuana use.”

Workplace Medical Marijuana Policies 

Although two bills before Congress seek to reclassify marijuana as a schedule 2 drug, myriad federal and state issues presently require clear policies uniformly implemented and clearly communicated.

At the very least, complying with conflicting state and federal "workplace drug testing and marijuana usage" laws and regulations requires that employers:

            #determine whether policy's objective is barring impairment or drug use, the latter of which allows instituting a zero-tolerance policy expecting all employees to be clear headed in order to minimize risk to themselves and others;

            #review federal regulations and state anti-discrimination and marijuana usage laws to ensure that the policies are consistent and compliant; 

            #update drug-use and testing policies to ensure that they clearly explain "drug testing, impairment, and marijuana use outside of the workplace" expectations;

            #implement systems and controls ensuring consistently following stated procedures;
            #communicate policies to all employees clearly stating what is expected; and
            #train managers about confidentiality issues regarding sensitive employee information including drug-test results and requests for exemptions for covered medical conditions for which marijuana is prescribed.

PA Refuses to Create Duty of Care To Protect Confidential Personal Data

Despite daily "data breaches" and "unauthorized confidential personal and financial information access and disclosure", Pennsylvania is presently refusing to recognize any  "duty of care" to safe guard against third-party criminal activity.

Instead, in Dittman v. UPMC, No. GD-14-003285 (Allegheny County C.C.P. May 28, 2015), Pennsylvania rejected recognizing data breach negligence claims refusing to provide plaintiffs with a common law basis to pursue "failure to provide reasonable data security protections" claims and damages.

However, because of overwhelming public policy issues and the Dittman opinion's urging of amending Pennsylvania's Breach of Personal Information Notification Act, 73 P.S. § 2301, et seq. ("Act") to create private right of action, those collecting and maintaining confidential personal and financial information may soon be liable for failing to employ safeguards from attack. 

Dittman v. UPMC Overview

After their names, birthdates, social security numbers, confidential tax information, addresses, salaries, and bank account information were stolen, 62,000 current and former University of Pittsburgh Medical Center (“UPMC”) employees filed a putative class action claiming UPMC's failure to exercise reasonable care to protect and secure this information violated a common law "duty to protect private, highly sensitive, confidential and personal financial information, and tax documents with which it had been entrusted from seizure".

Specifically, arising out of the employee/employer relationship, the Dittman plaintiffs argued that UPMC’s duties included designing, maintaining, and testing its security systems to ensure that personal and financial information was adequately secured and protected including processes that would timely detect a security systems breach and failing to meet industry standards in the face of a reasonably foreseeable risk. 

In finding that "no common law data breach cause of action" exists, the Allegheny County Court of Common Pleas held that Pennsylvania’s economic loss doctrine precludes a negligence claim for monetary loss stemming from a data breach, public policy considerations mitigated against creating an affirmative duty of care, and Pennsylvania’s legislature's prior actions evidenced an intent not to impose such a duty. 

Specifically, the Court concluded that, when enacting the Data Breach Act, Pennsylvania's General Assembly extensively considered the issues surrounding data breaches and refused to create a common law duty or private cause of action, but, instead, imposed only a notification obligation in the event of a breach.  

Dittman v. UPMC Impact 

The Dittman v. UPMC decision provides only a temporary stay against imposing a duty of care on those collecting and maintaining confidential personal and financial information to employ reasonable safeguards from attack and economic exposure for foreseeable wrongdoing.  To the contrary, the Dittman opinion simply passed the buck to the Pennsylvania legislature to fashion a remedy.

While unclear of the timeline, in light of the massive accumulation of financial information and inevitable third party criminal activity, public policy will force information gathers to conform to a standard of care and shoulder direct and actual damage negligence liability. 

Information gatherer and storers need to be designing, maintaining, and testing their security systems to ensure that personal and financial information was adequately secured and protected including processes that would timely detect a security systems breach.

Litigation Secret Weapon #7: Video Depositions

Although the costs keep dropping and benefits keep rising, lawyers fail to fully exploit video depositions.

Unlike a standard deposition, in which the questions and answers are merely recorded and reduced to a transcript, a videotape deposition fleshes out the witness's testimony and credibility while more profoundly engaging jurors' decreasing attention spans.  

Video Depositions' Costs and Benefits

 While more expensive and requiring greater preparation that a traditional deposition, video depositions capture and yield vastly more.  

First, beyond the testimony's content, video depositions catch the witnesses' tone of voice, appearance, and body language.   Thus, even the most damning testimony can be diffused by an inadequately prepared witness who speaks poorly, is dismissive (shrugs, rolls eyes, distracted/fidgety) or is unappealing.   

Second, video depositions favor the questioning lawyer.  A well spoken attorney offering well framed questions is often more compelling and persuasive than the most responsive of answers.

Third, video depositions muzzle obnoxious and unethical lawyers.  Unlike a transcript which fails to reflect shenanigans like rustling papers, sarcasm, eye-rolls and improper witness coaching, video captures everything.  As sunlight kills vampires, video depositions defang the most bullying attorney.   

Fourth, unlike an official transcript which requires days/weeks to transcribe, video deposition are immediately available in a digital form and easily provided to a client.

Fifth, video depositions better engage and persuade judges and juries.  In information age comprised of constant sensory bombardment and rapidly deteriorating attention spans, reading a deposition transcript into the record is just not compelling.   In the ongoing fight for a fact finder's attention, video depositions defeat oral transcripts every time.  

Video Deposition Strategy

Even more than with traditional depositions, video depositions hinge on witness and lawyer preparation.   Although the rules for taking or defending a pretrial video deposition mirror those for oral-only deposition, failing to prepare for the nuisances of video can be a critical error.

1. Appearance 

Many witnesses and attorneys neglect to adequately groom or dress for a video deposition.  Because the video may be shown at trial, both the witness and lawyer should avoid appearing casual and, instead, be "trial handsome": dressed appropriately, well groomed and composed.

2. Behavior 

Like at trial, video deposition witnesses are on display with the most powerful of spotlights shining upon them.   

Because behavior, body language and demeanor are under intense scrutiny, any "eye-roll", "gum chewing" or cell phone glance can profoundly undermine the witness' credibility or testimony's value.

3. Presentation

Because testifying is public speaking, no excuse exists for failing to prepare the information's presentation.  

While not every deponent can achieve "riveting", a weak tone of voice or poor cadence in responding to questions can shade the witness as disinterested, evasive or angry.

Attorneys Ghostwriting Their Expert's Reports

May an attorney draft his expert’s report?    

The recent Numatics v. Balluff, 13-CV-11049 (E.D. Michigan) (Dec. 16, 2014) opinion delineates the scope of attorney "assistance" in preparing expert reports in the wake of last year's Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. 2014) ruling - - codified into Pa. Rule of Civil Procedure 4003.5 - - shielding attorney and expert communications from discovery by the attorney work-product doctrine.

Prior to the new rules, because communications between a party's attorney and his testifying expert were routinely obtained through discovery, an attorney's guidance and input into his expert's report could often be tracked.  While bringing Pennsylvania practice in line with federal expert discovery rules, the Barrick decision and Rule 4003.5 fail to clarify whether an attorney may draft his expert’s report as long as the expert's theories are incorporated therein. 

Numatics v. Balluff Opinion

 Numatics involved an “infringement of technical patent” dispute in which plaintiff moved to exclude defense’s expert liability opinion arguing that the report was wholly written by defense counsel and the expert was "unaware" of elements necessary to establish "invalidity defense". 

After recognizing that an attorney may "assist" in report preparation, including coaching expert to ensure that the report touches all legally required bases, the Numatics Court scolded counsel for drafting the report merely to have the expert "review and sign". 

The Numatics Court was unpersuaded by defense counsel’s claim of only reviewing and correcting report portions inconsistent with his case view, deeming it insufficient to make report actually authored by expert following expert's testimony that, if he had written it, the report would have only been 5 pages and omitted the "legalness".

The Numatics Court was also troubled by expert’s spending only 2 or 3 hours reviewing 2,600 pages of depositions, less than 8 hours reviewing technical literature, and half of his 30 case hours at or traveling to defense counsel's office.

 

After noting that report’s “obviousness” section was "nearly indistinguishable" from counsel’s prior attorney-drafted contentions, the Numatics Court precluded the testimony of the expert, whom it deemed a "highly qualified puppet".

Pennsylvania Expert Report Ghostwriting 

While differing from the more restrictive Federal “disclosure of attorney-expert communications” rules, post-Barrick Pennsylvania practice is now more limited in its disclosure requirements. 

While Federal Rule of Civil Procedure 26(a)(2)(B) states that the report must be "prepared" and "signed" by the expert, Pennsylvania’s equivalent, Rule 4003.5, only requires that "answer [to expert interrogatories] or separate report shall be signed by the expert", omitting the word "prepared" does not authorize attorneys to write the expert's report.  

Although the general rule is that attorneys can fine-tune reports to comply with submission’s technical legal requirements (i.e., formatting, legal elements and scope), an attorney may not assume expert's role in preparing and drafting the report, the final draft of which must form a true representation of expert's own thoughts and conclusions. 

Additionally, although attorney-expert communications are protected, because expert time sheets and compensation are increasingly scrutinized, properly documenting and allocating time spent on the file is critical.

Pennsylvania Requiring Banks to Prevent "Elder Financial Abuse"

Last month Pennsylvania's Supreme Court's Elder Law Task Force's "elder abuse prevention" report (http://www.pacourts.us/courts/supreme-court/committees/supreme-court-boards/elder-law-task-force)("Report") imposed " financial abuse prevention" responsibilities on financial institutions.

The Report ranked "financial abuse" as among the leading mistreatment suffered by adults age 60 and above compromising 30% of Pennsylvania's adult protective services abuse claims and costing $2.9 billion annually.

 

The Report's recommendations for reducing elder financial abuse include requiring financial institutions to take an active role. 

After noting that they're often in the best position to detect, report, and prevent elder financial abuse, the Report recommended that financial institutions be:

            R designated as mandatory reporters of suspected elder abuse (like in Maryland and other states);

            R required to provide training, in conformance with state-mandated standards, for employees processing elder customers transactions; and

            R provided with the authority to hold transactions for five (5) days, during which time the institution would report the suspicious activity and determine whether to permit the transaction. 

The Report urges following Maryland, which has some of the most stringent elder financial reporting laws in the country (including both an oral and written notification requirement), for both reporting suspected elder abuse and providing mandatory employee training. 

Though the Report's recommendations, including the requirements imposed on financial institutions, require legislative action before becoming binding, financial institutions should be preparing elder abuse prevention and reporting programs to comply with heightened state and federal interest. 

Strategies For Minimizing E-Discovery Costs

Electronically stored information's ("ESI") explosion and e-discovery's skyrocketing costs have radically altered the playing field. 

To avoid e-discovery landmines, take full advantage of the new wave of e-discovery rules and technologies, and keep e-discovery costs as low as possible, planning ahead, knowing your data and cooperating with opposing counsel early in the discovery process is critical.  

Skyrocketing Costs 

Discovery comprises 70 percent of total litigation costs in cases that are not tried, litigants spend approximately $18,000 to collect, process and review a single gigabyte of data, and larger cases' potentially responsive data measure in the hundreds to thousands of gigabytes.  

Moreover, in 2009, e-discovery sanctions were awarded in more federal cases than in all the years before 2005 combined, with a $1 million "e-discovery mismanagement sanction" issued in the In re Pradaxa Products Liability Litigation in late 2013. 

Proposed "E-Discovery" Model Orders 

Over the last 3 years, more than two-dozen federal courts, including the District of Delaware, the Eastern District of Texas and the Northern District of California, have utilized local rule-making powers to enact e-discovery model orders and guidelines.  

The new rules call for phased ESI discovery, limits on email discovery and preserving and collecting certain categories of ESI, increased cooperation between litigants on e-discovery issues, and enhanced cost-shifting provisions to discourage e-discovery overreaching.  

While imposing new obligations on litigants, the new rules also create significant opportunities to secure rational and cost-efficient e-discovery frameworks tailored to the case's circumstances and transparently describe what will be covered and why.  

Taking advantage of the new rules requires extensive planning at the case's outset including: realistically assessing risks posed by litigation and own discovery needs; understanding where own relevant data resides, how much there is and difficulty of  collecting; crafting a comprehensive, justifiable e-discovery plan including limits on noncustodial ESI sources need to be preserved and collected, ESI custodians, and email discovery.  

While significantly reducing the volume of ESI that ultimately will need to be reviewed, these limitations also restrict the discovery that may be obtained from other parties.  

Advanced E-Discovery Tools 

One of the market's hottest e-discovery tools is "predictive coding", in which, after humans code an initial subset of documents, the computer “learns” what is relevant from the human coding and applies it to other documents via a designated algorithm.   

While requiring up-front effort, when dealing with a large volume of documents predictive coding substantially reduces the amount of data requiring expensive human review and curbs e-discovery costs. 

Because the law governing e-discovery tools is rapidly evolving, litigants must tread carefully, plan ahead and negotiate with opposing counsel early and transparently.  

Other parties will need to know what you plan to search, how you plan to search it and who (or what) will determine responsiveness.   

While often resulting in wider breadth of disclosed information, courts are conditioning their approval of this technology on such transparency.