Company Walks From Similar Case in Maine

by David M. Reutter

In November 2021, a year after a federal district court in California approved a $900,000 settlement in a class-action lawsuit alleging Securus Technologies, Inc. unlawfully recorded privileged calls between detainees and attorneys, the prison phone giant was still fighting similar allegations in Maine.

The November 19, 2020, order and judgment by the U.S. District Court for the Southern District of California resolved a lawsuit filed on May 27, 2016, by two former detainees and a criminal defense attorney who used Securus’ telephone services to make calls to and from correctional facilities and whose calls were recorded. [See: PLN, Aug. 2016, p.15.]

As previously reported by PLN, Securus and private prison operator CoreCivic agreed to a $3.7 million settlement earlier in 2020 for engaging in the same illegal behavior at the federal Bureau of Prison’s Leavenworth Detention Center, where the recordings were shared with prosecutors. [See: PLN, Jan. 2021, p.56.]

More recently, another case was filed in Maine alleging that Securus had illegally recorded prisoners’ privileged calls with their attorneys in that state. But a federal judge decided on April 30, 2021, that plaintiffs had failed to allege any facts that might prove Securus acted intentionally, so he dismissed the suit. See: Pratt v. Securus Techs., 2021 U.S. Dist. LEXIS 82661 (D. Me.).

The plaintiffs then asked the Court for leave to file an amended complaint, but they were denied on November 2, 2021. See: Pratt v. Securus Techs., Inc., 2021 U.S. Dist. LEXIS 211558 (D. Me.).

To call this a huge problem would be a huge understatement. Even if privileged calls are ‘accidentally’ recorded, they are stored on servers where they can easily be shared with prosecutors. As was pointed out by Andy Schmidt, a Portland attorney representing plaintiffs in the Maine case, “recordings of conversations cannot interfere with attorney-client privilege and the onus is on the person doing the recording to ensure that that doesn’t happen.”

Yet the ruling seems to put that onus on the prisoner and his attorney to prove not only that it happened but that it caused harm to their case. Fortunately for plaintiffs in the California case, they had the state’s Invasion of Privacy Act and its Business and Professions Code to proceed under, in addition to federal claims alleging Securus’ concealment, fraud, negligence, and unjust enrichment.

Filed in 2016, their complaint sought class-action status, which the Court refused to deny when it also denied Defendant’s motion to dismiss the suit on October 24, 2016. See: Romero v. Securus Techs., Inc., 216 F. Supp. 3d 1078 (S.D. Cal. 2016).

After that, Securus turned to the U.S. Court of Appeals for the Ninth Circuit, which got the parties to enter a mediation that resulted in a settlement. The appeal was dismissed on March 12, 2020, without prejudice pending approval of the settlement by the district court, which then granted preliminarily approval of the settlement on June 16, 2020, before its final approval five months later.

The settlement provides that Securus will:

• “make available to its customers a no-cost ‘private call’ option;”

• “implement message prompts advising callers whether the call will be recorded;” and

• “post on its website information about designating numbers as approved.”

Securus also agreed to pay each of the three named plaintiffs in the suit a service award up to $20,000, as well as attorney fees and costs up to $840,000. While there was no monetary relief for other class members, their right to seek monetary damages was not waived.

The district court had approved the class designation as every person who was a party to a conversation between a person in custody and that person’s attorney, on a number designated or requested as one not to be recorded but on which Securus eavesdropped or recorded anyway, between July 10, 2008, and June 16, 2020.

Determining that the relief the parties agreed upon was adequate to resolve the issues presented, the Court approved the $813,541.04 in attorney fees provide for by the settlement, plus another $26,458.96 in litigation costs, bringing the total in approved attorney fees and costs to $840,000.

However, the Court disagreed with the amount of the incentive service award to the named plaintiffs. The settlement provided that each of the three representative plaintiffs would receive a $20,000 service award. The Court awarded them $10,000 each instead, up to a total of $30,000. But it then awarded an additional $30,000 in attorneys’ fees, bringing the total award to $900,000, including $870,000 in attorney fees and costs. See: Romero v. Securus Technologies, Inc., 2020 U.S. Dist. LEXIS 217489 (S.D. Cal.).

The judgments alone are unlikely to deter Securus and its competitors, since the amount represents a small fraction of the estimated $1 billion annual prison phone market. It’s much more likely they will just be seen as a cost of doing business. Meanwhile the illegal recording of attorney client calls and providing access to those calls to police and prosecutors seems to be a long standing, nationwide practice of prison phone providers. 

Additional Source: Maine Monitor

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