A man claimed members of his former wife’s family recorded conversations between him and his purported romantic partner, and that his wife’s attorneys used the contents of those recordings in his underlying divorce proceedings. Virginia wiretapping statutes precludes attorneys from using or disclosing illegal recordings in judicial proceedings.
Plaintiff has sued his wife’s lawyers and members of her family for allegedly recording plaintiff’s conversations with his attorneys and purported romantic partner and using the contents of those recordings in his underlying divorce proceedings.
All defendants moved to dismiss plaintiff’s amended complaint for failure to state a claim.
Claims against lawyers
Defendant lawyers argue that the wiretapping claims against them should be dismissed because their alleged use of the contents of the illegal recordings is privileged and entitled to absolute immunity. However, the plain language of both the federal and the Virginia wiretapping statutes precludes attorneys from using or disclosing illegal recordings, and information derived from such recordings, even in a manner intimately associated with ongoing judicial proceedings.
Defendant lawyers cite to a Seventh Circuit case, Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994), to argue that policy concerns support recognizing a litigation privilege exception to the wiretapping statutes. The Seventh Circuit did not consider whether the attorneys would have been absolutely immune under either of the statutes at issue in this case. More importantly, the Fourth Circuit rejected a similar policy argument in interpreting the federal wiretapping statute in United States v. Crabtree, 565 F.3d 887, 888 (4th Cir. 2009).
In the alternative, defendant lawyers argue plaintiff has not sufficiently alleged they knew or had reason to know that the information they used in the divorce proceedings was obtained through an unauthorized wiretap. However, plaintiff alleged sufficient facts to show that defendant lawyers were at least on inquiry notice that the information their client shared was obtained through an unauthorized wiretap.
Finally, defendant lawyers ask the court to strike the portions of the amended complaint alleging they violated the Virginia Rules of Professional Conduct because any violation of such rules “is irrelevant and immaterial in a civil claim.” To the contrary, defendant lawyers’ ethical and professional obligations are relevant to whether they should have known that the information was obtained through an unauthorized wiretap.
Claims against family members
Family defendants argue that plaintiff has not alleged sufficient facts linking them to his wife’s alleged recordings. To the contrary, the court finds that plaintiff has alleged facts supporting a plausible claim that family defendants participated in illegally recording plaintiff’s conversations and disclosing the contents of those conversations to others.
Computer crime claims
Counts III and IV allege that two family members violated the Virginia Computer Crimes Act by examining plaintiffs private financial and identifying information and recording plaintiff’s keystrokes. The Hamptons argue plaintiff failed to allege any facts raising a reasonable inference that the Hamptons installed a keystroke logger on his computer or reviewed his financial or identifying information. Because evidence related to the computer crimes claims “are peculiarly within the possession and control of the defendant[s]” and the pleaded facts of the case “make the inference of culpability plausible,” plaintiff is entitled to discovery on the computer crimes claims.
Intentional infliction of emotional distress claim
In count V, plaintiff claims the defendants intentionally inflicted emotional distress on him. Plaintiff has sufficiently pled that defendants’ conduct was reckless and that the conduct was outrageous or intolerable; that defendants’ conduct was the cause of his emotional distress; and that his emotional distress was severe. Plaintiff’s allegations have thus given defendants fair notice of his intentional infliction of emotional distress claim, and the grounds upon which it rests, and therefore adequately state a claim for intentional infliction of emotional distress.
Aiding and abetting claim
In count VI, plaintiff asserts defendants should be held liable for aiding and abetting. The case law is uncertain as to whether there is an independent cause of action for aiding and abetting in Virginia, but a number of cases have concluded that there is. The court finds this count survives the motion to dismiss.
Injunctive relief claim
In count VII, plaintiff asks for temporary and permanent injunctions pursuant to 18 U.S.C. § 2520(b). Section 2520(b) does not provide for a separate cause of action.
Motion to dismiss granted in part, denied in part.
Marsh v. Curran, Case No. 18-cv-787, Jan. 25, 2019. EDVA at Alexandria (O’Grady). VLW 019-3-030. 15 pp.