Washington State Supreme Court Hears an Interesting Privacy Case: Dillon v. Seattle Deposition Reporters

This is a super interesting case that’s working its way through the courts in Washington. In a nutshell, T-Mobile was a defendant in a breach of contract lawsuit brought by NetLogix in the Western District of Washington. T-Mobile was represented by Davis Wright. Dillon, a former VP of NetLogix, approached T-Mobile’s lawyers and said he wanted “talk about the facts.”

The next day, Dillon called and spoke with the DWT lawyers, who had a court reporter transcribe the conversation. (The court reporter and DWT lawyers were both listening on the same line, via speakerphone.) In the conversation, Dillon revealed misconduct on NetLogix’s part relating to the lawsuit. Several weeks later, Dillon called DWT again and expanded on the conversation. This conversation was transcribed as well. Shortly afterwards, DWT prepared a declaration for Dillon, but Dillon had a change of heart and ultimately refused to sign.

T-Mobile filed a motion to dismiss the underlying lawsuit based on Dillon’s statements. In support, it offered portions of the transcript prepared by the court reporters. The federal court held a hearing and dismissed the case, finding Dillon’s statements in the transcript credible and his in-court attempt to recant those statements “wholly incredible.”

Scott Akrie, the CEO of NetLogix, sued under Washington’s Privacy Act, alleging that recording and dissemination of the Dillon/DWT conversation injured NetLogix. DWT and Seattle Deposition Reporters brought a motion to strike under Washington’s anti-SLAPP statute. Among other things, Akrie did not have standing to sue for the privacy violations because his conversation was never transcribed. The trial court granted the motion and awarded $10,000 (a single statutory damage award) and $20,137.45 in fees and costs. Both sides appealed. Defendants argued that the court should have awarded five separate awards (one per defendant). Akrie ultimately abandoned his appeal, but Defendants’ appeal remains pending.

Separately, after Akrie’s standing problems manifested themselves, Dillon sued on his own for alleged violations of the Privacy Act. He sued DWT, one of the lawyers, and Seattle Deposition Reporters. The trial court dismissed his claims, but the court of appeals reversed, holding that there’s a factual question as to whether Dillon had an expectation of privacy in the conversation. Access the Court of Appeals’ opinion here. The court also construed Washington’s anti-SLAPP statute narrowly, concluding that the thrust of Dillon’s claim is not the submission of the material (reflecting Dillon’s conversation) in the federal court proceeding, but the transcription of the conversation in the first place:

SDR’s acts of transcribing Dillon’s telephone calls cannot reasonably be categorized as protected “statements.” “[F]reedom of speech” means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. City of Dallas v. Stanglin. 490 U.S. 19, 25, 109 S. Ct. 1591, 104 L Ed. 2d 18 (1989). Accordingly, not all conduct can be treated as a “statement.” DCR. Inc. v. Pierce County. 92 Wn. App. 660, 671, 964 P.2d 380 (1998). Although there are numerous statements contained in the transcripts of the calls, this does not transform the act of transcribing the conversation into a statement as well. The act of transcription does not express anything, nor is it intended to convey any sort of message. Simply put, SDR’s acts of transcription are not statements. Cf, City of Seattle v. McConahv. 86 Wn. App. 557, 567-69, 937 P.2d 1133 (1997) (“sitting does not have inherent expressive value” and thus is not conduct protected by the First Amendment). As SDR’s acts are not statements, subsection (2)(b) of RCW 4.24.525, defining “an action involving public participation and petition,” is not applicable.

The court of appeals also found that subsection (2)(e) (“[a]ny other lawful conduct… in furtherance of the exercise of the constitutional right of petition”) was not applicable, construing this provision narrowly to cover access to state legislatures and courts.

The Washington State Supreme Court accepted review, and arguments will be heard (in both cases) today. Numerous parties filed briefs as amici. I wrote a brief [pdf] on behalf of the Washington Court Reporters Association, arguing that transcription is not the same as recording and the privacy statute only covers the latter. The Reporters Committee for the Freedom of the Press & others weighed in (in a brief drafted by Prof. Volokh and Jessica Goldman), arguing that note-taking is constitutionally protected activity and that the Court of Appeals construed the anti-SLAPP statute too narrowly (see, the quoted language above). The ACLU of Washington* weighed in, arguing among other things that the anti-SLAPP statute is unconstitutional. Its brief also argued that the conversations were “private”. A list of (and link to) the briefs is below:

To me, this is a classic example of this type of a law (a privacy statute) being used for a purpose far from the intended one. We see similar examples in anti-harassment law as well. (The Ellis v. Chan case is a classic example of this, and I’ve blogged about scores of others.) It will be interesting to see what the Washington Supreme Court does.

You can watch the argument live-streamed at this link.

* I am affiliated with ACLU-WA as a member and supporter (and former board member). I also often work on cases as a cooperating attorney. I speak on my own behalf here obviously.

Case citation:

Dillon v. Seattle Deposition Reporters, et al., Court of Appeals Case No. 69300-0-1 (Wash. Ct. App. Jan 21, 2014) [pdf]

Akrie v. Grant, et al., Court of Appeals Case No. 68345-4-1 (Wash. Ct. App. Dec. 23, 2013) [pdf]

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