Wiretap Fallout: Suits Against Telecoms Gain New Life in California
FindLawBy Kevin Fayle
After receiving mixed results in July, plaintiffs alleging that AT&T and other telecommunications companies violated their rights by helping the National Security Agency (NSA) monitor their phone calls recently got some good news in the form of a consolidation order from the Judicial Panel on Multidistrict Litigation.
The August 9 order, which came in response to a motion before the Panel supported by the Federal Government, transferred the pretrial proceedings of 17 cases to the Northern District of California, the same court that previously denied a government motion to dismiss one of the wiretap cases on state secrets grounds. The government alleged that discovery in that suit should not proceed because it would result in the exposure of state secrets. The court, however, ruled that since the government had admitted that the program existed, it was no longer a state secret.
This result differed from that of a decision in the Northern District of Illinois. A judge there dismissed a similar action involving the alleged release of customer data by AT&T after determining that the state secrets doctrine did in fact prevent discovery in the case. There were important distinctions in the subject matter of the two suits, however: the California suit contained claims involving both the monitoring of phone calls and the release of customer data; the Illinois suit only pertained to the release of customer data.
Judge Vaughn Walker of the Northern District of California suggested, and the Illinois court agreed, that the customer records claims could not stand on their own since neither the government nor the telecom companies had acknowledged the program. Since discovery could proceed for the monitoring claims, however, the California judge ruled that discovery could begin for the records claims since the claims arose out of similar conduct. Judge Walker determined that in camera hearings and judicial seals would protect sensitive data from release.
Even while dismissing the case before him, Judge Matthew Kennelly of the Northern District of Illinois appeared to adopt Judge Walker's reasoning and gave the plaintiffs leave to amend their complaint to add a monitoring claim if they so desired.
In the recent consolidation order, the Panel rejected the government's request to transfer the suits to the District of Columbia. The government most likely wanted the shift to D.C. because the courts there are typically more inclined to side with the government on issues of federal power and authorities. The Panel, on the other hand, reasoned that, since the District Court there did not currently have a wiretap case before it, a transfer to D.C. would not serve the government's interest in limiting access to the information involved in the suit. Instead, the Panel stated, the cases should go before a judge who has already seen much of the information involved, is familiar with the legal issues that the cases present, and has already begun establishing procedures to keep the information sealed.
The Panel's selection of Judge Walker is significant, since he has already shown his willingness to allow cases involving telephone conversation monitoring to continue. The other judge with experience in these cases, Judge Kennedy, also seemed willing to grant discovery in monitoring cases, but it is unclear whether he would also allow records claims to proceed as Judge Walker did. Since the major issue in the cases so far is the discovery of the details of the two programs, this consolidation order represents a major victory for the plaintiffs.
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