Wednesday, September 23, 2009

Don't Throw Me Into That Briarpatch

It seems that the ACORN subsidiary in Maryland is suing the intrepid makers of the ACORN videos. Boy is that dumb.
When you sue someone, you open up the door for discovery. Civil discovery can be a very painful thing, since you have to produce everything that is requested even if it might not be relevant or material. So now, the two filmmakers and Andrew Breitbart have a hunting license to rummage through everything, possibly even up to the national level.
Boy are they dumb.

UPDATE: You can see a copy of the complaint here.


Dave Budge said...

I was right, Steve. Lead counsel is a civil rights lawyer. Here's his bio.

GeeGuy said...

Not quite "everything that is requested." Typically the standard requires that the requested information be "reasonably calculated to lead to the discovery of admissible evidence."

Anonymous said...

Red State post, Wolf author.

I will keep this simple. Here is the text of the suit, which is brought under the MD Wiretap Act. The suit alleges that Andrew Breitbart, working in concert with O’Keefe and Giles, intercepted an “oral communication” using an electronic device, which would indeed be a violation of the act. The problem, however, is that the statute specifically defines “oral communication” in section 10-401(2)(i) as: “any conversation or words spoken to or by any person in private conversation.”

What this means, as established by the clear text of the statute (and Maryland caselaw, including Fearnow v. Chesapeake & Potomac Tel. Co. of Maryland, 342 Md. 363 (Md. 1996)) is that at least one of the parties to the conversation must have had a reasonable expectation of privacy in the conversation. In other words, if someone stands up in the town square and shouts out loud and someone else records it, that is not a violation of the act.

The problem for ACORN is that, as a matter of law, the employees at ACORN had no reasonable expectation of privacy in what they said to members of the public who entered their offices. As made clear by Katz v. United States and its progeny (made applicable specifically to the Maryland Wiretap Act by cases such as Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997)), “What a person exposes knowingly to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

Doesn't look like it's going anywhere.

Big Swede

Steve said...

I agree that it wouldn't normally be so expansive as I would like, unless they do a civil RICO suit. Then they can really start burrowing, and probably bring in SEIU as well.