Valerie McCann was forced out of her job as director of physicians' services at Iroquois Memorial Hospital in early February of 2006, most likely as part of a reorganization spearheaded by a new CEO. She was not happy. Dr. Leslie Lindberg provided radiology services to the Hospital. He also disapproved of the new administration and feared that the reorganization could put his opportunities at risk as well. McCann paid a visit to Dr. Lindberg at the Hospital later in February on unrelated business. At some point, the conversation turned to the subject of the Hospital. They were both critical of the Hospital, the CEO, and the Trustees. Unbeknownst to them, much of the conversation was recorded on Lindberg's dictation machine. Susan Freed, who oversaw the staff that transcribed dictated notes, learned of the conversation. She had it transcribed and she turned it over to the CEO. The CEO informed the trustees and provided the transcript to one of them. McCann and Lindberg brought suit against Freed, the CEO, the Hospital, and the trustees. They asserted claims under the Federal Wiretap Act as well as state law. Plaintiffs' theory is that Freed, while collecting some papers from Lindberg's office during his conversation with McCann, surreptitiously turned on his dictation machine to record the conversation. Freed denied doing so. Defendants’ theory is that Lindberg forgot to turn the machine off when McCann arrived. Judge Baker (C.D. Ill.) granted summary judgment to the defendants. McCann and Lindberg appeal.

In their opinion, Judges Flaum, Manion, and Rovner affirmed with respect to the CEO and the trustees but vacated and remanded with respect to the Hospital and Freed. The Court first addressed defendants' argument that it should not consider the McCann and Lindberg affidavits submitted in response to the summary judgment motion because they contradicted earlier testimony about the date of the conversation. The Court conceded that such a rule exists but cautioned that it does not apply when sufficient reasons are provided for any discrepancies. First of all, the Court thought the date to be immaterial. Second, and more important, the changes are easily explained here. The plaintiffs were originally mistaken about the date of the recorded conversation. Information that became readily available only after the complaint was filed (the timestamp on the recording, cell phone records, and canceled checks) all confirmed that the conversation took place on February 24 -- not February 10, as the plaintiffs originally believed. On the merits, the Court addressed the elements of the Wiretap Act claims. The Act prohibits intentionally "intercepting" a conversation court or using or disclosing the contents of an interception, knowing that it was unlawful. The Court concluded that there were genuine issues of material fact when all facts and inferences were drawn in plaintiffs' favor. Even if one side's version of the facts or theory is more believable, summary judgment is not the stage to weigh evidence or make credibility determinations. The claims against Freed and the Hospital can proceed. On the other hand, the record contains no evidence on which to base the CEO’s or the trustees’ liability. The only allegation against the CEO is that he used or disclosed the interception -- but that Act requires that he do so with the knowledge that the interception was unlawful. The record does not support such a conclusion. With respect to the trustees, the only allegation is that one of them knew the interception was illegal -- but not that he used or disclosed the information. Even if true, his knowledge would not amount to a violation of the Act.