ACORN: Housing Assistance For Prostitutes

[Darius871]

I think I may've just assumed too much and didn't connect the dots for you.

You quoted the wikipedia entry:

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

So you are using the colloquial usage, not the legal one, and are judging its perceived value and not its legal standing? After all, the same wikipedia entry defines it more stringently in legal terms, which you did not quote:

The typical definition in United States law is very different from its colloquial or political meaning. 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.

The formal definition involves whether the claim or defense has merit, not its perceived value.

What was your point in quoting that excerpt if you are now going to claim it does not have anything to do with your position?

Jesus, which part of "even supposing" don't you understand? It's called arguing in the alternative.

1) Under a broad colloqial definition (described in my cites), it's frivolous.
2) Even under a narrower definition (described in your own cite), it's still frivolous.

What could get simpler than that?

[Darius871]

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

How are Desnick and American Transmission not relevant? Also, if you'd bothered to read the authorities I'd cited, you'd see that the "relevant" Medical Laboratory Management Consultants case is just the 9th Circuit's affirmance of the "irrelevant" Medical Laboratory Management Consultants case I cited earlier... how on earth does that work?

[Asher]

no

I think I may've just assumed too much and didn't connect the dots for you.

You quoted the wikipedia entry:

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

So you are using the colloquial usage, not the legal one, and are judging its perceived value and not its legal standing? After all, the same wikipedia entry defines it more stringently in legal terms, which you did not quote:

The typical definition in United States law is very different from its colloquial or political meaning. 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.

The formal definition involves whether the claim or defense has merit, not its perceived value.

What was your point in quoting that excerpt if you are now going to claim it does not have anything to do with your position?

[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.

[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]

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]

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)

[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

[Asher]

Are we trolling eachother? What the ****

[Darius871]

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

Spoiler:

Spoiler:

Spoiler:

Spoiler:

Spoiler:

Spoiler:

Spoiler:

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

[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]

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]

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.

[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.

[Drake Tungsten]

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