ACORN: Housing Assistance For Prostitutes

[Darius871]

1) That blogger whom I've never heard of is not my "source"; the case he cited is.

2) You apparently didn't bother to read my post, because I did not say that Malpas supports the proposition that "inviting a total stranger into a publicly open workplace for conversation is the same as 'knowingly exposed to the public.'" That was the idiot blogger's assumption, not mine. What I took out of Malpas, rather, was that "the court...would interpret the Maryland Wiretap Act's use of the phrase 'private conversation' in accordance with other courts' test for objectively 'reasonable expectation of privacy' as opposed to mere subjective belief in privacy," i.e. "that other court's general interpretation of 'reasonable expectation of privacy' will be more instructive than the Maryland Wiretap Act which is completely silent on its definition" (emphasis added). Read those 60 words several times over and then tell me where I make the "assumption" you claim. Instead of making that assumption, I was arguing that Malpas demonstrated the court's propensity to adopt outside jurisprudence on "reasonable expectation of privacy," which was a segue to that outside jurisprudence which is quoted above and itself supports the conclusion that "inviting a total stranger into a publicly open workplace for conversation is the same as 'knowingly exposed to the public.'" The blogger assumed, while I found an avenue to a real conclusion.



Oh lord, is that what this is going to boil down to for you? An issue is automatically not frivolous until the Maryland Court of Appealslays the hammer down on a case with precisely identical facts? I hate to be the first to break this to you, but that's not how the common law works in practice. In the absence of absolutely binding, factually on-point precedent, lower courts always look to the approaches of those few outside jurisdictions that did deal with similar facts and, where those jurisdictions are nearly unanimous on one approach, almost invariably adopt that approach. That is why the above excerpts that you conveniently (and predictably) ignored are not only relevant but decisive.

Example: suppose the Alaska Supreme Court has never had occasion to decide whether farmers are "merchants" under the Uniform Commercial Code, but a lower Alaskan court gets a brief showing that the other 49 states' highest courts have said they are not. Are you seriously telling me that arguing "farmers are UCC merchants" would not be "frivolous"?

Admirable attempts, but obscenely lacking. I don't think cases need to have the exact same facts to serve as precedents, of course (are your strawmen a sign of desperation or are you deciding it's time to start trying to be fun for once?), but they need to have a couple of common threads to make it such a slam-dunk waste of time to even bring it to court to be classified as "frivolous".

This is far from a frivolous lawsuit. ...

There's really no reason for you to continue arguing this. You don't want to back down from your claim, so you keep skirting around the word "frivolous" in our subsequent discussion. This is the problem with lawyers -- you lack humour and you squirm way too much once you've been nailed.

I'm not skirting around the word "frivolous" at all. You simply appear to use a very abnormal definition of that word. I've shown a number of reasons why the plaintiffs here are highly, highly unlikely to succeed on the merits, and your counterargument isn't even about probability but rather that there's no "direct precedent." Sorry, but there can be, and have been, frivolous cases in the total absence of factually on-point precedent from a binding authority. The UCC scenario above is one of many examples.

FFS, look at the Birthers - is there any "direct precedent" that Obama's legal team can hang its hat on? No. Are their claims nonetheless frivolous? Yes.

As our thread has indicated, there's plenty of issues that can be addressed in court.

Sorry, but the fact that I needed to explain all of this to you does not mean a court case between experienced attorneys would go the same way.

[Darius871]

Look, more red herrings. Maybe if you keep trying to dazzle Drake it'll distract everyone.

WTF are you on about? You argued that "public significance" is questionable here and that the case is therefore not frivolous, and in response I showed binding authority to the effect that "public significance" is very broadly construed and thus waste of tax dollars on criminal activity would absolutely fall under it without question. You can't dismiss anything that directly disproves your point as a "red herring."

You've admitted there's no direct precedent for this, which would imply it's not a frivolous lawsuit. Do you want to just come out and say it now, so we can be done with this?

Dude, are you too lost to even comprehend that 1) the First Amendment impediment and 2) the court's likely interpretation of the Maryland Wiretap Act are two completely independent issues? Even supposing there's no "direct precedent" on #2 (which is inaccurate anyway; there's simply non-Maryland precedent combined with a Maryland precedent showing willingness to adopt non-Maryland precedent, the latter of which I posted and you ignored), Florida Star was directly relevant to your "public significance" argument on #1.

Are you serious? Really?

About what? Read your own ****ing posts I'd quoted and see for yourself what I directly responded to. Your amnesia is not under my control.

[Asher]

I'm not skirting around the word "frivolous" at all. You simply appear to use a very abnormal definition of that word.

I do? You're the one asserting it's frivolous even though you're working on the basic assumption that the conversation taken behind closed doors in a consultation with a person is a public conversation with no right to privacy.

Then you've also confused the situation by citing a legal precedent pertaining to trespass.

It's patently clear that there's a lot of avenues to attack here and it's not an open and shut case.

It's far from frivolous. If I'm using the incorrect form of the word ("not serious in content or attitude or behavior") which -- by the way, is not abnormal as it is the definition of the word -- then why don't you stop wasting time by whipping out your legal dick and just say so?

You get off on this ****, even when you're wrong. Then you dazzle people like Kuci and Drake with your big words and rigid 1) writing 2) personality. I think Drake just enjoys cheering you on so the show continues, to be honest. Kuci is just in his adolescent rebellion stage, trying to show up his mentor.

[Drake Tungsten]

Don't argue with Ben, Darius. Just put him on ignore.

[Asher]

About what? Read your own ****ing posts I'd quoted and see for yourself what I directly responded to. Your amnesia is not under my control.

I was referring mostly to the fact that the closer we get to having a productive discussion the more you ratchet up the legal rhetoric to obscure the issue. You're going to make a good trial lawyer.

[Asher]

Don't argue with Ben, Darius. Just put him on ignore.

This really is an open and shut case. A frivolous discussion.

Darius made a grandoise claim and I called him on it. He's in full smoke and mirrors mode now.

A frivolous lawsuit, by definition, must have no merit. There's merit here by the simple fact that the recording broke the Maryland Wiretapping Law. Further, there's no direct precedent federally that would directly override the law. As such, it's an unexplored legal avenue and not frivolous.

We can argue all we want over the likelihood of the lawsuit to succeed, but to say it is completely without merit is either wishful thinking or just Darius being dramatic. If he would just admit it, we'd all be better off. But he won't.

[Darius871]

I do? You're the one asserting it's frivolous even though you're working on the basic assumption that the conversation taken behind closed doors in a consultation with a person is a public conversation with no right to privacy.

FFS, this will be the second and last time I tell you that I never made that "assumption" even if that idiot blogger did. Instead, I cited a great deal of legal authority reaching the conclusion independently, and argued that a Maryland court would almost certainly rely on said authority. Both 1) Malpas' reliance on Katz reasoning and 2) the ordinary workings of the common law on questions of first impression support this prediction.

Actually, let's reframe the question a bit so you might get it.

Explain it to me in simple terms: why is there a significant probability that a Maryland court would choose to totally ignore the factually on-point authorities below and forge its own anomalous path? If there is not a significant probability of that eventuality, then the case is frivolous. So explain it to me.

See for example a case of undercover ABC reporters entering a publicly open office by pretending to be customers:

Regardless of the method of intrusion used, a plaintiff can recover “only if he had an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source.” Shulman, 74 Cal.Rptr.2d at 864, 955 P.2d 469; Kemp v.Block, 607 F.Supp. 1262, 1264 (D.Nev.1985) (emphasis added); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269, 1279 (Nev.1995).

When an intrusion occurs in a home or other personal sphere, the plaintiff's expectation of privacy has, in most instances, been deemed to be objectively reasonable. Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir.1971) ( “Plaintiff's den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen.”). However, courts have recognized that there is a diminished expectation of privacy in the workplace. See, e.g., Ali v. Douglas Cable Communications, 929 F.Supp. 1362, 1382 (D.Kan.1996); People for the Ethical Treatment of Animals, 895 P.2d at 1281 (“there is, generally speaking, a reduced objective expectation of privacy in the workplace.”); Hart, 947 P.2d at 853 (rejecting employees' intrusion upon seclusion claims against their employer's demand that they take a drug test); Cox v. Hatch, 761 P.2d 556, 563 (Utah 1988) (no reasonable expectation of privacy in a “common workplace”). When courts have considered claims in the workplace, they have generally found for the plaintiffs only if the challenged intrusions involved information or activities of a highly intimate nature. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3rd Cir.1992) (noting that “[i]f the method used [by an employer] to collect [a] urine sample fails to give due regard to the employee's privacy, it could constitute a substantial and highly offensive intrusion upon seclusion” and that the same principles would apply to an employer's search of an employee's personal property “if it is done in such a way as to reveal personal matters unrelated to the workplace ”) (relying on Rest. § 652B) (emphasis added); Doe v. Kohn Nast & Graf, P.C., 862 F.Supp. 1310, 1326 (E.D.Pa.1994) (summary judgment denied on employee's claim that employer intruded on his seclusion by searching through and reading personal medical documents on an employee's desk) (relying on Rest. § 652B). Where the intrusions have merely involved unwanted access to data or activities related to the workplace, however, claims of intrusion have failed. See, e.g, Smith v. Colorado Interstate Gas Co., 777 F.Supp. 854, 857 (D.Colo.1991) ( “Unreasonable intrusion of seclusion is not implicated because the allegations [that plaintiff's former employer intruded on her seclusion by informing a prospective employer that she had not been laid off, as she claimed on a job application] do not involve invasions of [plaintiff's] personal solitude or personal affairs”) (citing Rest. § 652B); Bratt v. International Business Machines Corp., et al., 785 F.2d 352, 359 (1st Cir.1986) (finding that “no reasonable fact finder could conclude that there had been an unreasonable intrusion” upon the plaintiff's privacy by the limited dissemination of the frequent use by the employee of the employer's confidential grievance process because “[t]he information itself, although it may have had a negative connotation to some managers, is not of such a personal nature that an intrusion upon privacy results from its disclosure.”); Hastings & Sons Pub. Co. v. City Treasurer, 374 Mass. 812, 375 N.E.2d 299, 303 (Mass.1978) (no breach of privacy in disclosure of payroll records because information did not include “ ‘intimate details' of a ‘highly personal’ nature”); Ali, 929 F.Supp. at 1382 (plaintiffs could only prevail on intrusion claim against their employer's monitoring or recording of their telephone conversations at work if such calls were of a “personal nature”).


In the instant case, Mr. Devaraj invited Ms. Gordon and Mr. Cooke to his place of business for a meeting. Regardless of whether they were potential future business partners, as Mr. Devaraj thought, Ms. Gordon and Mr. Cooke were strangers who chose Mr. Devaraj from relative obscurity and called him. The conversation and office tour took place in a laboratory that was at least partially open to the public and was accessible to employees. Mr. Devaraj did not communicate to the Defendants that he expected the conversation would not be disclosed to others, nor did he take any precautions to ensure that the contents of the discussion remained confidential. Furthermore, *1189 over the course of the roughly two hours, the topics of conversation were restricted to discussions of the industry as a whole and to the general practices at Medical Lab. For instance, Mr. Devaraj told Ms. Gordon and Mr. Cooke that he paid his cytotechnologists more than other labs so they preferred to work for him, that he had better turnaround time than other labs, and that he made only a minimal profit on the pap smear testing. (Devaraj Decl. at ¶ 9, attached to Pls.['] Statement of Facts (“PSOF”) as Exh. 8.) Mr. Devaraj freely shared this information with Ms. Gordon and Mr. Cooke and may not have if he knew they were recording his conversation for publication. The information, however, hardly constituted matters involving “intimate personal facts.” Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1353 (7th Cir.1995). Thus, Mr. Devaraj can claim no reasonable expectation of privacy in the location or contents of the conversation. Shulman, 74 Cal.Rptr.2d at 864, 955 P.2d 469.

Medical Laboratory Management Consultants v. ABC, 30 F.Supp.2d 1182 (D. Ariz. 1998)

Or perhaps another case of undercover ABC reporters (referred to as "testers") entering a publicly open office by pretending to be customers:

No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment, because there would have been no invasion of a legally protected interest in property or privacy. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); Forster v. County of Santa Barbara, 896 F.2d 1146, 1148-49 (9th Cir.1990); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir.1979). “Testers” who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private persons not acting under color of law. Cf. id. at 1355. The situation of the defendants' “testers” is analogous. Like testers seeking evidence of violation of anti-discrimination laws, the defendants' test patients gained entry into the plaintiffs' premises by misrepresenting their purposes...

What we have said largely disposes of two other claims-infringement of the right of privacy, and illegal wiretapping. The right of privacy embraces several distinct interests, but the only ones conceivably involved here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229; Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548, 555 (1989); Doe v. Methodist Hospital, 639 N.E.2d 683, 685 (Ind.App.1994). As we have said already, no intimate personal facts concerning the two individual plaintiffs (remember that Dr. Desnick himself is not a plaintiff) were revealed; and the only conversations that were recorded were conversations with the testers themselves. Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir.1993).

Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 7th Cir. 1995)

Or perhaps another case of local reporters entering a publicly open office by pretending to be customers:

The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted.... Nor was there any inva[sion of] a person's private space, as in the famous case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881)

American Transmission, Inc. v. Channel 7 of Detroit, Inc., 239 Mich.App. 695 (Mich. App. 2000)

etc. etc. etc.

[Asher]

Explain it to me in simple terms: why is there a significant probability that a Maryland court would choose to totally ignore the factually on-point authorities below and forge its own anomalous path? If there is not a significant probability of that eventuality, then the case is frivolous. So explain it to me.

Far be it for me to correct a lawyer, but that's not the definition of frivolous lawsuits from my research:

United States courts usually define "frivolous litigation" as a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law.

Having no merit is not the same thing as asserting there is a "significant probability" that it would be successful.

[Darius871]

Don't argue with Ben, Darius. Just put him on ignore.

Spoiler:

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Shhh... I think he's still falling for it.

[Asher]

Are we trolling eachother? What the ****

[Darius871]

Far be it for me to correct a lawyer, but that's not the definition of frivolous lawsuits from my research:

United States courts usually define "frivolous litigation" as a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law.

Having no merit is not the same thing as asserting there is a "significant probability" that it would be successful.

I said "significant probability" as in slightly more than zero, not "probable." I'm going off the Webster's definition as most people understand it, not whatever arcane legalese you're trying to impress Drake with. But even supposing your stringent definition, then fine, I contest whether the suggested interpretation of the law is "reasonable." Going against the manifest weight of the authorities cited above is "unreasonable."

In some usages, a plaintiff's action may not be technically frivolous because it has sound legal grounds, but is colloquially referred to as frivolous for its perceived value

http://en.wikipedia.org/wiki/Frivolous_litigation

of little weight or importance...lacking in seriousness

http://www.merriam-webster.com/dictionary/frivolous

[Darius871]

And oh my, how could I leave out this gem?

The California Supreme Court distinguishes between “internal” and “external” workplace communications in assessing the likely reasonableness of any expectation of limited privacy. Unlike the “internal” conversation between coworkers in Sanders, an “external” conversation between a workplace insider, such as a proprietor, and a workplace outsider, like a customer, is more probably business-related and thus not sufficiently private and personal in character to make any privacy expectation reasonable. For example, in Desnick v. American Broadcasting Cos., 44 F.3d 1345 (7th Cir.1995), test patients covertly videotaped their conversations with ophthalmic surgeons who recommended cataract surgery to the test patients. Desnick, 44 F.3d at 1348. The Seventh Circuit held that the surgeons had failed to state a claim for invasion of privacy because “[t]he test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves).” Id. at 1352. Accordingly, there was no “invasion of a person's private space,” no “intrusion into legitimately private activities,” and “no eavesdropping on a private conversation” that revealed “intimate personal facts concerning the two individual plaintiffs.” Id. at 1352-53.


Likewise, in Wilkins v. National Broadcasting Co., 71 Cal.App.4th 1066, 84 Cal.Rptr.2d 329 (1999), television producers posing as potential investors in a telecommunications company secretly videotaped a business meeting that they had with salespersons from the telecommunications company. The California court of appeal ruled that the salespersons' claim that the surreptitious videotaping intruded upon their seclusion did not survive the television producers' motion for summary judgment. Wilkins, 84 Cal.Rptr.2d at 332. Because the salespersons “discussed business matters on the open patio of a public restaurant with four strangers,” “[t]here was no *818 intrusion into a private place, conversation or matter.” (you'll note that the ACORN video had a lot of third parties in the background also, and not even a closed door)Id. at 336. The court of appeal stressed that the secret videotaping did not constitute “physical or sensory intrusion into [the salespersons'] privacy,” or intrusion “into the[ir] personal lives, intimate relationships, or any other private affairs.” Id.


The case currently before us involves the covert videotaping of “external” workplace communications much like those recorded in Desnick and Wilkins. Devaraj, in his capacity as Medical Lab's founder and co-owner, invited three strangers whom he regarded as potential business partners, but also possible competitors, to the Medical Lab offices where they discussed business, not personal matters. As already discussed, Devaraj held no objectively reasonable expectation of privacy in the parts of Medical Lab that he showed the undercover ABC representatives. The videotaping therefore did not intrude upon any private place of his. Devaraj's subjective expectation of privacy in the contents of his conversation with the ABC representatives, which was wholly business-related and did not implicate Devaraj's private and personal affairs, was also not objectively reasonable. Thus, the videotaping did not invade any conversation or matter that was private to Devaraj. In short, Devaraj presented himself to the three strangers from ABC as no more than a public face and voice for Medical Lab. Given that Devaraj cannot assert a privacy right on behalf of Medical Lab, see Rest. (2d) Torts § 652I, Devaraj could have no reasonable expectation of limited privacy in a workplace interaction with three strangers that was purely professional and touched upon nothing private and personal to Devaraj himself.FN6 See Desnick, 44 F.3d at 1352-53; Wilkins, 84 Cal.Rptr.2d at 336.

We conclude that while Devaraj may have maintained a subjective expectation of privacy over the location of his conversations with the undercover ABC representatives, an expectation of privacy in the contents of the conversation, and an expectation that against the ABC's secret videotaping of his communication for future *819 broadcast to the general public, these expectations were not objectively reasonable.

Medical Laboratory Management Consultants v. ABC, 306 F.3d 806 (9th Cir. 2002)

[Asher]

I said "significant probability" as in slightly more than zero, not "probable." I'm going off the Webster's definition as most people understand it, not whatever arcane legalese you're trying to impress Drake with. But even supposing your stringent definition, then fine, I contest whether the suggested interpretation of the law is "reasonable." Going against the manifest weight of the authorities cited above is "unreasonable."

In some usages, a plaintiff's action may not be technically frivolous because it has sound legal grounds, but is colloquially referred to as frivolous for its perceived value

http://en.wikipedia.org/wiki/Frivolous_litigation

of little weight or importance...lacking in seriousness

http://www.merriam-webster.com/dictionary/frivolous

I'm just pleased we've now agreed that you did not mean it was a frivolous lawsuit in the legal sense, even though it was clear you framed it as such.

[Darius871]

I'm just pleased we've now agreed that you did not mean it was a frivolous lawsuit in the legal sense

no

But even supposing your stringent definition, then fine, I contest whether the suggested interpretation of the law is "reasonable." Going against the manifest weight of the authorities cited above is "unreasonable."

[Asher]

And oh my, how could I leave out this gem?

It's about time you actually cited something relevant. I knew you had it in you. Thanks.