Federal Judge Allows Wiretapping Case to Proceed Against CoreCivic for Recording Attorney-Client Conversations at Nevada Prison
by Kevin W. Bliss
On January 14, 2022, Judge Jennifer Dorsey ruled for the federal court for the District of Nevada that it has jurisdiction over a nationwide potential class of defendants in a suit by attorney Kathleen Bliss, who alleged her rights were violated when private prison operator CoreCivic recorded privileged conversations with her clients at a state prison the firm manages.
Bliss’ suit was sent back to the district court after a key ruling by the U.S. Court of Appeals for the Ninth Circuit that found the case was not time-barred by the statute of limitations. [See: PLN, Mar. 2021, p.47.]
In the Court’s latest ruling, Judge Dorsey stated Bliss alleged a plausible claim that CoreCivic intentionally recorded conversations with clients in which she had “a reasonable expectation of privacy,” in violation of federal and state wiretap acts. The Court then denied CoreCivic’s motion to dismiss and allowed the case to move forward.
Represented by attorneys from the Minneapolis firm Nichols Kaster, PLLP, Bliss filed her complaint on June 27, 2018, on behalf of herself and a proposed nationwide class of attorneys whose conversations with their clients in prisons and detention centers were recorded by CoreCivic, as the firm had recorded Bliss’ privileged conversations with her clients at Nevada Southern Detention Center.
Bliss called this a violation of attorney-client privilege as well as federal and state law. Her complaint recalled that Bliss specifically requested her conversations not be recorded, but CoreCivic willfully and maliciously did so nonetheless. She asked the Court for an injunction to stop the wiretapping, as well as compensatory and punitive damages.
CoreCivic filed a motion to dismiss, stating the Court did not have jurisdiction over unnamed defendants outside of Nevada, as well as claiming that Bliss failed to adequately state a claim. The motion further claimed the recordings in question were exempted from both federal and state wiretap acts under carve-outs to both for ordinary-business and law-enforcement uses. It also alleged that defendants had no reasonable expectation to privacy in these circumstances or consented to the wiretaps.
Judge Dorsey ruled that although no class has yet been certified, the Court nonetheless has jurisdiction. The judge also promised that Defendants’ rights would be adequately protected under Federal Rule of Civil Procedure 23.
The Court then held that CoreCivic met the intent element of a violation under the wiretap acts by purposely taping privileged conversations. The Court added that it was irrelevant whether the recordings were made for nefarious reasons or CoreCivic was aware they were unlawful. The purposeful taping over Bliss’ objections was sufficient.
The order also stated ordinary-business exemptions covered only communications which required transmittal by the intercepting party. Moreover, law-enforcement exemptions covered only wiretapping with a court order in service of a major crime investigation. Neither of these exemptions covered the conversations that Bliss accused CoreCivic of taping.
Lastly, the Court observed that a prisoner maintained an expectation of privacy concerning attorney-client conversations, and merely posting a memo stating all calls may be recorded or monitored did not give implied consent to a wiretap. Thus Defendant’s motion to dismiss was denied and the case given leave to proceed. See: Bliss v. CoreCivic, Inc., 2022 U.S. Dist. LEXIS 10953 (D. Nev.).
The case remains active, and PLN will report developments as they occur. Bliss was provided additional representation by Las Vegas attorneys Joshua Y. Ang of Gordon Rees Scully Mansukhani LLP and Paul S. Padda, as well as three Missouri attorneys: Lance D. Sandage of Kansas City, Joseph K. Eischens of Parkville and Michael Hodgson of Lees Summit. See: Bliss v. CoreCivic, Inc., USDC (D. Nev.), Case No. 2:18-cv-01280.
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Related legal case
Bliss v. CoreCivic, Inc.
| Cite | USDC (D. Nev.), Case No. 2:18-cv-01280 |
|---|---|
| Level | District Court |