This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:

  1. a U.S. Court of Appeals for the Third Circuit ruling upholding a district court’s issuance of a permissive adverse inference instruction as opposed to a default judgment based on the intentional deletion of emails by top executives but ordering a new trial after finding that the district court had abused its discretion in excluding trial testimony by plaintiff’s expert regarding the scope of the spoliation
  2. a U.S. District Court for the Northern District of Illinois decision granting case-terminating sanctions and awarding attorney’s fees after concluding that plaintiff destroyed files on his laptop by reinstalling his operating system and then repeatedly committed perjury by denying that he had destroyed the files
  3. a U.S. District Court for the District of Colorado case denying plaintiff’s motion to amend a protective order to allow sharing of confidential documents with other similarly situated potential plaintiffs
  4. two decisions of the U.S. District Court for the Eastern District of Pennsylvania rejecting a state law replevin claim and wiretap claims relating to plaintiff’s efforts to block broadcast of certain disparaging comments he made about his client during the filming of a documentary after he thought the microphone had been turned off

1. In GN Netcom, Inc. v. Plantronics, Inc., 2019 WL 2998513 (3d Cir. July 10, 2019), the U.S. Court of Appeals for the Third Circuit held that the district court did not abuse its discretion in issuing a permissive adverse inference instruction as opposed to a default judgment based on the intentional deletion of emails by top executives but ordered a new trial after finding that the district court had abused its discretion in excluding trial testimony by plaintiff’s expert regarding the scope of the spoliation.

In this antitrust litigation, plaintiff alleged that defendant had sought to monopolize the market for telephone audio headsets. Id. at *1. After plaintiff initiated the litigation and defendant issued a litigation hold, a top executive at defendant instructed other employees on at least three occasions to delete emails that referenced the defendant’s competitive practices. Id. at *2. The executive himself also deleted more than 40% of his own emails during a four-month period at the beginning of the litigation, even taking the additional step of deleting files from his trash folder so they could not be recovered. During depositions, this same executive gave misleading testimony regarding the destroyed documents. Id. at *3.

When lawyers for defendant learned of the spoliation, they took steps to recover the documents but were not entirely successful. Id. at *2. Defendant retained a discovery vendor and a forensics expert to recover as many emails as possible from backup tapes. A preliminary analysis from the forensics expert estimated that the executive had deleted between 36,397 and 90,574 emails, 2,380 to 5,887 of which were likely responsive to discovery requests. The forensics expert further estimated that between 952 and 2,354 emails were unrecoverable and permanently missing.

Plaintiff moved for a default judgment based on the spoliation. Id. at *3. The district court held an evidentiary hearing and agreed with plaintiff that defendant had acted in bad faith and with an intent to deprive plaintiff of relevant documents but opted to issue a permissive adverse inference instruction to the jury at trial, fine defendant $3 million and require it to pay plaintiff’s fees related to the spoliation motion. The district court also excluded from trial the testimony of plaintiff’s expert regarding spoliation, which limited the discussion of spoliation to 17 stipulations read to the jury. Following a jury trial, the jury ruled for defendant, and plaintiff appealed.

On appeal, plaintiff argued that the district court abused its discretion in denying the request for a default judgment. Id. at *4. The Third Circuit, in an opinion written by Judge D. Michael Fisher, rejected this argument. In assessing sanctions under Rule 37, courts consider “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve the deter such conduct by others in the future.” Id. (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)). Based on these factors, the Third Circuit held that the district court had not abused its discretion.

As the Third Circuit explained, the district court reasonably concluded that defendant had acted in bad faith and caused prejudice to plaintiff because the deleted emails might have contained important evidence bearing on the monopolization claims. As for the remedy, plaintiff cited numerous cases where the spoliation was allegedly less severe and the court issued a default judgment. Id. at*5. But the Third Circuit emphasized that a decision on sanctions is fact dependent and noted that the destroyed evidence in this case was “not so clearly central or critical” as in the other cases plaintiff cited. In such circumstances, “there can be no bright-line rule regarding what degree or percentage of destroyed documents warrants default judgment.” Moreover, the District Court appropriately concluded that lesser sanctions were appropriate where, among other things, some of the deleted emails were recovered and the jury would be free to view the recovered emails and draw inferences about the deleted emails. Id. at *6.

However, the Third Circuit agreed with plaintiff that the district court abused its discretion in excluding plaintiff’s expert testimony regarding the scope of the spoliation. Id. at *6. Plaintiff’s expert would have testified that the scope of the spoliation was more significant than defendant had represented. Id. at *7. In particular, plaintiff’s expert would have testified that defendant’s expert had used a flawed methodology to estimate the number of deleted emails and that the actual number was between 10,000 and 15,000. Id. at *8. The Third Circuit found this evidence highly probative, as it would have assisted the jury in assessing whether defendant had engaged in a “massive cover-up” by deleting thousands of relevant emails.

The Third Circuit explained that the probative evidence would have properly been excluded if its probative value was substantially outweighed by “a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. However, the Third Circuit concluded that none of these factors was present. The testimony would not have confused the jury, would have taken a few hours out of a six-day trial, and would not have been cumulative. Id. at *8. Moreover, the potential that the evidence might “color the jury’s opinion” of defendant and “prejudice its view of the company on issues unrelated to spoliation” did not amount to a risk of “unfair prejudice,” particularly where the jury was already aware of the spoliation. Because the error in excluding the evidence was not harmless — it could have “shaped the jury’s verdict” — the proper remedy was a new trial. Id. at *9.

Judge D. Brooks Smith dissented on the issue of the exclusion of the expert testimony. Id. at *10. He argued that the majority had minimized the extent of the spoliation evidence presented to the jury via stipulations. Id. at *11. These stipulations “gave the jury an adequate basis to decide whether to adopt the permissive adverse inference.” In addition, the majority had not given sufficient deference to the district court’s view that the expert testimony would have “posed a substantial risk of distracting the jury from the antitrust merits of the case and that such risk eclipsed the testimony’s probative value.” In Judge Smith’s view, this was a “classic example” of the types of discretionary judgments “that trial judges are far better situated to make than those of us who are confined to reviewing a cold review.” Id. at *12.

2. In Williams v. American College of Education, Inc., 2019 WL 4412801 (N.D. Ill. Sept. 16, 2019), Judge Gary Feinerman granted case-terminating sanctions and awarded attorney’s fees after concluding that plaintiff destroyed files on his laptop by reinstalling his operating system and then repeatedly committed perjury by denying that he had destroyed the files.

In this employment litigation, plaintiff alleged that he was discriminated against and terminated due to his race and in retaliation for complaining about discrimination. Id. at *1. Plaintiff informed defendant, his employer, of his intent to file suit, and a few days later, defendant reminded plaintiff in a letter of his obligation to preserve documents relevant to his claims. Id. at *2.

A couple months later, defendant asked plaintiff to return his work laptop and sent plaintiff a prepaid box for shipment. Defendant later claimed that plaintiff returned the laptop, but defendant could not recover any of plaintiff’s files from the laptop because plaintiff had installed a new operating system and, in the process, permanently deleted several files. Id. at *1, 3.

According to defendant’s technical expert who testified at an evidentiary hearing, the operating system was reinstalled a month after plaintiff threatened to file suit. Id. at *3. The expert further testified that reinstalling the operating system is a “common method of deleting information from a computer” because “when an operating system is reinstalled, files that were deleted before the reinstallation can be overwritten, making them unrecoverable.” The expert here found evidence that at least 20 files were opened on the laptop prior to reinstallation and were no longer present on the hard drive. The expert also found evidence of activity on the previous operating system in the weeks leading up to the reinstallation and evidence that a USB device had been connected to the laptop twice during this period. Id. at *4. While the expert was able to recover more than 10,000 deleted files, the expert testified that it was impossible to tell what files were overwritten and, therefore, no longer recoverable because of the reinstallation. Finally, the expert testified that as far as he knows, it is not possible to reinstall an operating system remotely.

In response, plaintiff denied reinstalling the operating system in a declaration, at his deposition and at the evidentiary hearing before Judge Feinerman. Id. at *5-*6. Further, when shown the laptop at the evidentiary hearing, plaintiff testified that while he was not certain, he did not think it was the same laptop that he had returned to defendant. Id. at *6. The laptop was the correct model, but plaintiff testified that the laptop had an asset tag that was not on the laptop he returned and was missing a webcam cover. Plaintiff also testified that he had a second laptop that he used when working at defendant’s office, which he described as a spare laptop that different employees were allowed to use in the office. Id. at *7. Plaintiff first suggested the existence of this second laptop almost two years into the litigation, and at which point defendant was unable to find any evidence that a second laptop had been assigned to plaintiff. Plaintiff’s technical expert opined that the chain-of-custody form defendant used to track the laptop that the plaintiff allegedly returned was deficient because it did not record unique identifying information for the laptop. Id. at *5. The expert also testified that he found evidence that a program named Remote Desktop Connection was run on the laptop after the reinstallation.

Defendant sought sanctions for plaintiff’s alleged spoliation under Rule 37(e) and pursuant to the court’s inherent authority. Id. at *10. Rule 37(e) permits sanctions “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). If the court “find[s] prejudice to another party from loss of the information,” it “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). However, if the court “find[s] that the party [responsible for not preserving the information] acted with the intent to deprive another party of the information’s use in the litigation,” it may: “(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.” Fed. R. Civ. P. 37(e)(2). Judge Feinerman also noted the court’s inherent authority to address abuses of the judicial process. Id. at *10 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991)). The evidentiary standard for factual findings underlying a determination of sanctions is a preponderance of the evidence. Id. at *11.

Judge Feinerman found the evidence in the record more than sufficient to demonstrate that plaintiff spoliated evidence and acted with intent to deprive and that the spoliation was willful. Id. at *11-*15. Defendant’s version of events — that plaintiff reinstalled the operating system before returning the laptop and, in the process, permanently deleted an unknown number of files — was supported by the record, and plaintiff’s evidence to the contrary was not credible. Id. at *11-*13.

Plaintiff offered two alternative theories of events: “(1) [defendant’s expert] examined a laptop different from the one [plaintiff] returned to [defendant]; and/or (2) someone else reinstalled the operating system on the laptop [defendant’s expert] examined and tried to frame [plaintiff] for the resulting spoliation.” Id. at *11. Judge Feinerman concluded that these alternative theories “amount[ed] to convoluted conspiracies that the record does not support.” Id. at *12. To the extent plaintiff suggested the second laptop that he belatedly identified was used as part of either scheme, Judge Feinerman noted that defendant was unaware of the laptop’s existence during the relevant period. As for the switched-laptop theory, while the documentation on the chain of custody was “imperfect,” the testimony that defendant sent the exact laptop plaintiff returned for forensic analysis was still “highly credible.” Id. at *13. In addition, plaintiff’s other evidence for the switched laptop did not establish that the laptop was accessed by or belonged to someone other than plaintiff. With respect to the remote-installation theory, Judge Feinerman found that nothing in the record suggested it was even possible to reinstall an operating system remotely. Based on this evidence, Judge Feinerman further concluded that plaintiff had repeatedly committed perjury by denying having reinstalled the operating system. Id. at *14-*15. “Under no imaginable circumstances would [plaintiff] have reinstalled the operating system, forgotten that he had done so, and then innocently offered an alternative theory in which [defendant] used the second computer … to fabricate evidence of his misconduct.” Id. at *14.

Turning to the appropriate sanction for the spoliation, Judge Feinerman agreed with defendant that dismissing plaintiff’s claims and ordering plaintiff to pay defendant’s attorney’s fees was warranted. Id. at *15-*16. The record “amply demonstrate[d] that [plaintiff] ‘acted … with a degree of culpability that exceeds simply inadvertence or mistake,’ making dismissal an available sanction under both Rule 37(e)(2) (as to his destruction of data from his laptop) and the court’s inherent authority (as to his perjury).” Id. at *16 (quoting Ramirez v. T & H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016)). Plaintiff had not requested a less severe sanction, so Judge Feinerman concluded that plaintiff had forfeited any argument that dismissal was not appropriate in these circumstances. And in any event, a lesser sanction would not cure the prejudice in this case because “it is impossible to determine the full extent of the spoliation.” Id. at *15. “[B]ecause there is no way to determine what data [plaintiff] destroyed and to which issues the data were relevant, there is no way to approximate the presumably unfavorable effect of that information, and thus no way to craft instructions or presumptions that would eliminate — or even substantially mitigate — the prejudice to [defendant].” Id. at *16.

3. In Strough v. General Motors LLC, 2019 WL 2357306 (D. Colo. June 4, 2019), Magistrate Judge N. Reid Neureiter denied plaintiff’s motion to amend a protective order to allow sharing of confidential documents with other similarly situated potential plaintiffs.

This dispute arose in a product liability suit brought against GM and the manufacturer of a seatbelt system used by GM, TRW Vehicle Safety Systems Inc. (TRW). The suit stemmed from a single car rollover accident in which a woman was ejected from her 2004 Chevy Impala and died. Her mother, the plaintiff, alleged that the Impala was defectively designed because it did not have electronic stability control (ESC) and because the seatbelt system did not perform properly. She also contended that the side- and rear-window glass was not crashworthy.

The court entered a protective order, which followed defendants’ suggestion that it not contain a so-called “sharing provision,” which would have allowed plaintiff’s counsel to share confidential information learned in discovery with “similarly situated” litigants. Plaintiff objected that she had not had an adequate opportunity to brief the issue, so the court allowed supplemental briefing.

Plaintiff argued that the “real reason” GM sought to prohibit sharing was to keep other injured customers from obtaining access to important safety documents and to keep secret evidence of its negligence and misconduct. Magistrate Judge Neureiter said this was “unnecessary, unsupported hyperbole” and “counterproductive.”

More generally, plaintiff argued that defendants were not entitled to a blanket secrecy order because “the fruits of pretrial discovery are, absent a court order to the contrary, ‘presumptively public.’” Id. at *2. But the authority relied on by plaintiff supported only the assertion that court filings are presumptively public:

As the Supreme Court explained in Seattle Times Co. v. Rheinhardt, 467 U.S. 20 (1984), judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in other contexts.

According to Magistrate Judge Neureiter, pretrial discovery is “a matter of legislative grace,” and his goal was “to get this case ready for trial promptly.” Disputes about sharing with other potential litigants would serve only to delay.

Additional fairness concerns militated against plaintiff’s request, as defendants’ Rule 30(b)(6) witnesses could be surprised in potential future cases by documents produced in this matter but not in future litigation. “This concern is particularly relevant for cases that span decades of technological development and where the specific personnel who made engineering or budget decisions reflected in the company documents are not currently available.”

Plaintiff argued that because the Impala was a 2004 model, sharing would not risk improper disclosure of defendants’ trade secrets or confidential information. TRW, however, submitted an affidavit by one of its senior in-house attorneys stating that there was in fact a risk to its business. Thus, “given the breadth of Plaintiff’s discovery requests, the disclosure of the information requested would severely and unfairly reduce TRW’s competitive advantage in the market.” Id. at *3. So too for GM, whose testing data, “even if years old, could prove useful to GM’s competitors to see how GM engages in and analyzes crash-testing data.”

Based on all of this, Magistrate Judge Neureiter concluded that the Rule 26(c) standard for a protective order had been satisfied in this case.

This did not mean that all documents would forever be protected from disclosure. The burden on defendants to show that a document contained confidential information remained. “Thus, if Plaintiff doubts whether a particular document contains trade secret, confidential, or otherwise protectible [sic] information, she is entitled [to] challenge the designation and the Defendant will have the burden to prove the document should be protected.”

Further, the protective order contained a provision allowing plaintiff to provide the National Highway Traffic Safety Administration with any information — even confidential information — that plaintiff might think relevant to motor vehicle safety. “So, if there is a ‘smoking gun’ document that Plaintiff’s counsel discovers and believes will avoid another calamity such as the GM Ignition Switch debacle, Plaintiff’s counsel is entitled to send it along to the NHTSA post haste (after notice to the Defendants), thereby protecting the public interest.” Id. at *4.

Plaintiff’s remaining citations to cases allowing sharing largely involved identifiable groups of plaintiff rather than “a pro-active effort by a single plaintiff to get advance permission to share confidential documents with unknown lawyers in yet-to-be filed cases.” Judge Neureiter commented:

It is not clear why Plaintiff is fighting hypothetical future discovery battles for hypothetical future plaintiffs. Plaintiff has provided no evidence of the number of rollover accident deaths involving Chevy Impalas allegedly caused by the lack of ESC, allegedly defective seatbelts, or inadequately designed windows. There is no evidence before the Court that there are a multitude of similar cases across the country involving the same technology or design. And, if there were, the plaintiffs in those cases could come to this Court and seek access to the discovery documents and the Court would assess their bona fides at that time.

The magistrate judge therefore denied plaintiff’s motion to revise the protective order.

4. In two decisions in Peruto v. Roc Nation, 2019 WL 2448851 (E.D. Pa. June 12, 2019) and 2019 WL2454061 (E.D. Pa. June 12, 2019), Judge Gerald Austin McHugh rejected a state law replevin claim and state and federal wiretap claims relating to plaintiff’s efforts to block broadcast of certain disparaging comments he made about his client during the filming of a documentary after he thought the microphone had been turned off.

Judge Genece Brinkley of the Philadelphia County Court of Common Pleas has overseen the decade long, highly publicized probation of rapper Rihmeek Williams, known professionally as Meek Mill. Peruto v. Roc Nation, 2019 WL 2448851, at *1. The media criticized Judge Brinkley for sending Meek Mill back to prison after a series of parole violations, and Judge Brinkley retained A. Charles Peruto Jr. as her counsel in connection with that controversy. As Judge Brinkley’s lawyer, Peruto agreed to and subsequently participated in two interviews with defendants for a documentary titled #FreeMeek. Near the end of the second interview, after Peruto purportedly thought he had gone off the record, Peruto was recorded making a number of disparaging comments about Judge Brinkley’s handling of the Meek Mill case. Following significant media attention related to his comments, Peruto commenced a series of lawsuits in Pennsylvania state court, including, as relevant here, an action for replevin. Peruto v. Roc Nation, 2019 WL 2454061, at *2 (E.D. Pa. June 12, 2019). In a separate action, Peruto also filed claims in the Eastern District of Pennsylvania under the Pennsylvania and Federal Wiretap Acts. Peruto, 2019 WL 2448891, at *2. Defendants removed the replevin action to federal court, where the two cases were consolidated.

In federal court, defendants filed motions to dismiss both of the consolidated actions and, as an exhibit to the motions, defendants attached the recording at issue. Peruto opposed the motions, arguing, inter alia, that the recording did not authentically portray the interaction and that defendants had edited out his request to go off the record. In response, Judge McHugh first ordered the parties to identify an agreed-on expert to evaluate the recording’s authenticity — which Peruto later admitted — and subsequently converted defendants’ motions to dismiss into motions for summary judgment. On June 12, 2019, Judge McHugh issued two separate opinions to address defendants’ motions.

In the first opinion (2019 WL 2454061), Judge McHugh considered whether to grant summary judgment for defendants on Peruto’s replevin claim. Id. at *2. Judge McHugh stated that for Peruto to survive summary judgment, he had to establish that he was seeking a property interest subject to replevin and that he had title and exclusive right to possess that property. In this case, Peruto did not seek possession of the equipment originally used to record him or the device on which the recording was stored; instead, Peruto sought possession of the data and files that contain the recordings of his voice. In support for his claim, Peruto argued, inter alia, that courts have previously held that sound recordings can constitute “property.” Id. at *3.

As Judge McHugh explained, however, replevin is a common law remedy dating back centuries and, traditionally, only tangible property has been recoverable in actions for replevin. Id. at *2. While the law here has expanded slightly beyond the bounds of tangible property to include items such as deeds or stock certificates where there exists some intrinsic link between the physical item retrieved and the property interest it signifies, other intangible property remains outside the scope of a viable replevin claim. In Judge McHugh’s view, “[t]he computer data and digital files Peruto seeks represent intangible property beyond the reach of replevin” because, unlike deeds or stock certificates, the data and files “represent one form of information, stored by various methods, none of them emblematic of the content of the data.” Id. at *3. Judge McHugh similarly rejected any assertion by Peruto that his words constituted a property interest subject to replevin. As Judge McHugh concluded, “no court has held that the contents of a recording are subject to replevin,” and, as such, “Peruto cannot show that his words — either independently or as bytes of data captured in an electronic format — constitute property recoverable in replevin.”

Judge McHugh also held that even if Peruto could establish a property interest subject to replevin, he could not claim title and exclusive right to possess that property. Id. at *4. Peruto contended that his title and exclusive right to the property in question were evident because his oral communications constituted his property that defendants illegally obtained and made permanent as digitalized communications. But, as Judge McHugh noted, Peruto “offer[ed] no legal authority supporting the conclusion that defendants’ conduct in some way endow[ed] him with exclusive rights to the words spoken.” In Judge McHugh’s view, “[o]nce words have been expressed to another, the speaker would seem to have forfeited the exclusive right to ‘possess’ them, as they then exist in both parties’ memories.” Judge McHugh also noted that in cooperating with defendants by expressly agreeing in writing to allow them to record and use his voice, Peruto forfeited any claim of exclusivity as to the sound of his voice. Accordingly, Judge McHugh granted summary judgment for defendants on Peruto’s replevin claim.

In the second opinion (2019 WL 2448851), Judge McHugh evaluated Peruto’s claims under the Pennsylvania and Federal Wiretap Acts. As a general matter, “[t]he Pennsylvania Wiretap Act prohibits intentional interception of any wire, oral, or electronic communication without consent of all parties involved as well as any knowing disclosure of the contents of communications obtained in violation of the statute.” Id. at *2. To survive summary judgment on his claim under Pennsylvania’s Wiretap Act, Peruto was required to “show that he ‘exhibited an expectation of privacy’ and that the ‘expectation [was] one that society is prepared to recognize as reasonable.” Peruto argued that because the interview had concluded, the camera was turned away, he attempted to remove his lavalier microphone and he attached significance to the film crew’s use of the term ‘card,’ it was reasonable for him to believe that his statements were no longer being recorded. Id. at *3. Peruto also pointed to the content of his statements, his abrupt shift in tone, the dramatic difference from his on-camera remarks and his sudden display of candor as support for his contention that he assumed his words were no longer public. Judge McHugh disagreed, however, because, as Peruto ultimately conceded, he never explicitly sought to go off the record, and he did not even wait until he had fully removed his microphone before making disparaging statements about Judge Brinkley. Judge McHugh stated that on these facts he could not “conclude that Peruto exhibited an expectation of privacy.”

Judge McHugh also noted that even if Peruto had demonstrated an expectation of privacy, “in no respect did he have a reasonable expectation of privacy.” Id. (emphasis in original). Relying on precedent from the Pennsylvania Supreme Court, Judge McHugh held that Peruto could not have had a reasonable expectation of privacy because he spoke freely in front of a room full of individuals (some of whom he did not know), he knew that defendants’ recording devices had been active just before he began his disparaging remarks and, given the controversial nature of the case that was the subject of the interview, Peruto had reason “to be concerned that his words might be intercepted, overheard, or otherwise disclosed.” At oral argument, Peruto contended that because he was experienced in dealing with the press he was, therefore, justified in believing that, based on journalistic ethics, the filmmakers would respect the confidentiality of his post-interview remarks. Judge McHugh, however, concluded that Peruto’s sophistication in interacting with the press actually made his expectation of privacy less reasonable for the following reasons: (i) Peruto should have known his comments would be of interest to defendants; (ii) he signed a release and was thereby, at the very least, on notice as to defendants’ desire to use his statements in their documentary; and (iii) despite his self-proclaimed sophistication and experience, Peruto never took the “elemental step of confirming that he was speaking off the record.” Id. at *3-*4. Judge McHugh, therefore, granted summary judgment for defendants on Peruto’s claim under Pennsylvania’s Wiretap Act. Id. at *4.

Turning to the Federal Wiretap Act claim, Judge McHugh explained that to survive summary judgment, Peruto — who relied on an exception to the federal statute’s one-party consent rule — had to “show that Defendants recorded his statements after the interview with the intent to present those statements in a way that rendered them susceptible to inferences casting [him] in a false light.” Id. (internal quotation marks omitted). In Judge McHugh’s view, “[t]he most obvious obstacle to Peruto’s claim [was] demonstrating the falsity of the light in which the recording casts him.” Id. at *5. On this point, Peruto argued that the recording inaccurately suggests to listeners that his only opinions about his clients are the unfavorable personal views captured following the interview, and to the exclusion of the favorable statements he made as Judge Brinkley’s lawyer. Judge McHugh disagreed, and rejected the premise that any single recording of a person’s statements necessarily implies that those statements reflect the person’s only views on the topic. As Judge McHugh explained, “[p]articularly in the case of lawyers, it is widely understood that counsel’s professional positions are often distinct from their personal views.” Judge McHugh reasoned that “[w]here, as here, the recording accurately recounts the speaker’s stated views, it does not cast the speaker in a false light simply by virtue of the fact that it does not offer a comprehensive account of all his opinions on the subject.” Because Peruto failed to allege that defendants recorded him with an intent to commit a tortious act, Judge McHugh held that Peruto could not invoke the exception to the Federal Wiretap Act’s one-party consent rule and, consequently, Judge McHugh granted summary judgment for defendants on Peruto’s claim under the Federal Wiretap Act. Id. at *6.