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Case of the Month Archive

July 2023

Ninth Circuit held District Court miscalculated statutory damages for violation of the Federal Wiretap Act. . .


In a reversal, the Ninth Circuit held the District Court erred in its calculation of statutory damages under the Federal Wiretap Act by failing to consider whether such damages should be assessed at $100 per day where father secretly recorded 20 hours of conversation between mother and child, had his lawyer file transcripts of the recording on the court's public docket, and later posted excerpts of the transcripts on public Facebook pages.


Pyankovska v. Abid

(April 18, 2023)

United States Court of Appeals, 9 Cir, No. 20-16294, 65 F.4th 1067, 2023 FA 2083, per Parker (Murgia, C.J., and Lee, J., concurring). United States District Court for the District of Nevada: Mahan, J., order reversed. For Lyudmyla Pyankovska (Appellant): Brian Wolfman. For John Jones (Appellee): Todd E. Kennedy. For Sean Abid (Appellee): Alex Ghibaudo. CFLP §C.160.4.


In 2010, Lyudmyla Pyankovska and Sean Abid were divorced in Nevada and awarded joint legal and physical custody of their child. In 2015, Pyankovska filed a motion for contempt against Abid and sought to modify the custody order. While the motion was pending, Abid placed a recording device in their child's backpack and recorded approximately 20 hours of conversations between the child and Pyankovska. Neither the child nor Pyankovska was aware that their conversations were being recorded. Abid later edited and transcribed excerpts of the recordings before destroying the original recordings. Abid gave the transcripts to his lawyer, John Jones, who then filed the transcripts on the public docket of the Nevada court as exhibits to Abid's declaration in support of Abid's countermotion to modify the custody order. Pyankovska objected to the public disclosure of the transcripts, arguing that they had been obtained illegally. The Nevada trial court held the transcripts could not be used as independent evidence but ruled that the transcripts could be provided to a psychologist who had been appointed to help resolve the custody dispute. After review of the transcript, the psychologist concluded that Pyankovska's behavior was "'creating confusion, distress, and divided loyalty in the child.'" Ultimately, the Nevada trial court awarded Abid with primary physical custody of their child.

While Pyankovska sought to have the transcripts sealed in the Nevada trial court, Abid uploaded Pyankovska's motion to seal as well as the transcripts to various Facebook pages, where they were left available to the public for nearly two years. During that time, the "posts were widely disseminated, viewed, and commented upon."

In December 2016, Pyankovska sued Abid and Jones in the United States District Court for the District of Nevada (District Court), alleging violations of the Federal Wiretap Act and Nevada Wiretap Act, as well as claims for invasion of privacy and infliction of emotional distress. Jones moved to dismiss the complaint against him under FRCP 12(b)(6), arguing that (1) his conduct was protected by the vicarious consent doctrine [parent who has physical custody of child may consent to a recording of conversation on behalf of child, so long as the recording parent believes doing so is in the child's best interest]; (2) his disclosure of the transcripts were protected under Bartnicki v. Vopper (2001) 532 U.S. 514 [narrow First Amendment exception to the Federal Wiretap Act for matters of public importance]; and (3) he is immunized from liability by the Noerr-Pennington doctrine [arising out of First Amendment's Petition Clause, doctrine provides that those who petition the government for redress of grievance are immune from liability for statutory violations, notwithstanding the fact that their activity might otherwise be proscribed by the statute involved]. Agreeing with his third argument, the District Court ruled Jones could not be liable to Pyankovska. Regarding Pyankovska's claims against Abid, the District Court found that Abid had provided inaccurate responses to discovery requests and "'flouted the rules and procedures of th[e] court.'" As a result, the District Court entered a default judgment against Abid under FRCP 37(b).

Pyankovska submitted an accounting that showed her medical expenses were $3,125 and legal expenses were $1,413. Pyankovska also sought statutory and punitive damages under the Federal Wiretap Act. The District Court awarded Pyankovska $10,000 in statutory damages, but nothing related to litigation expenses, punitive damages, or Pyankovska's state claims. Pyankovska filed a motion to amend the judgment, which the District Court summarily denied after noting that it has "'considered all the arguments and accounting of the parties in making its determination.'" Pyankovska appealed, and the Ninth Circuit vacated and remanded.

The panel began by giving an overview of the Federal Wiretap Act, which prohibits the intentional interception, disclosure, and use of wire, oral, or electronic communication without the consent of at least one party to the communication. The Act further provides that "'no part of the contents of [any illegally intercepted] communication and no evidence derived therefrom may be received in or before any court.'" Two statutory exceptions exist: (1) court authorization; and (2) consent by a party to the communication.


Abid's lawyer is not immunized from liability. . .
Turning to the application of the Act with regard to Jones, the panel concluded that Jones "plainly 'used' and 'disclosed' the intercepted communication" by filing the transcripts on the Nevada court's public docket. The issue then turned on whether Jones was excused based on the three exculpatory doctrines he argued. The circuit judges observed that the vicarious consent doctrine is not the law of Nevada or the Ninth Circuit, but nevertheless gave it consideration. According to West Virginia Department of Health & Human Resources v. David L. (1994) 192 W.Va. 663, 453 S.E.2d 646, the West Virginia Supreme Court held that a father who secretly installed a tape recorder in his ex-wife's house in order to record conversations between his children and ex-wife violated the Federal Wiretap Act, particularly since the father had "'absolutely no dominion or control over mother's house.'" The circuit judges concluded that, like the situation in David L., Abid did not have custody over the child at the time the recordings were made.

The panel next rejected Jones's argument that the Bartnicki exception applies to him. In Bartnicki, members of the media obtained and published intercepted conversations between a chief negotiator and union president concerning contentious public collective-bargaining negotiations. The recording was made by an unidentified person. The Supreme Court held that although the disclosure violated the Federal Wiretap Act, media members publishing the conversations were protected by the First Amendment since "'[i]n these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance.'" In finding that the Bartnicki exception did not apply here, the circuit judges reasoned that the recording occurred "in the most private of spaces-[Pyankovska's] home and car." Also unlike Bartnicki, the communications here concerned "intimate relations between a child and his parents."

Lastly in relation to the claim against Jones, the panel held that the District Court erred in holding that the Noerr-Pennington doctrine immunized Jones from liability. For the Noerr-Pennington exception to apply, the court must ask and answer in the affirmative the following questions: (1) whether the lawsuit imposes a burden on petition rights; (2) whether the alleged activities constitute protected petitioning activity; and (3) whether the statute at issue may be construed to avoid that burden. The circuit judges found that Jones's Noerr-Pennington argument failed for a couple of reasons, both at the first step of the doctrine's analysis. First, Pyankovska's lawsuit against Jones in the District Court did not burden the litigation in the custody action. In fact, the Nevada trial court permitted the court-appointed psychologist to review the illegally obtained communications and then it awarded Abid primary physical custody. Second, the restriction that the Federal Wiretap Act places on litigants does not place a burden on petitioning activity but instead functions as a civil exclusionary rule applicable to all litigants and functions like the rules set forth in the Federal Rules of Civil Procedure, Federal Rules of Evidence, and local court rules. In other words, "Jones was free to file and argue the custody motion-i.e., to petition-but he was not free to support that motion with illegal evidence." For these reasons, the panel vacated the District Court's judgment insofar as it applied Noerr-Pennington and remanded the matter for further proceedings.


District Court miscalculated statutory damages against Abid. . .
The panel next agreed with Pyankovska that the District Court miscalculated the statutory damages and failed to assess any damages on her common law claims against Abid. Per 18 USC §2520(b), the Federal Wiretap Act authorizes equitable relief, damages, punitive damages, and reasonable attorney's fees and other litigation costs. The Act further provides that "the court may assess as damages whichever is greater of (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages of whichever is greater of $100 a day for each day of violation or $10,000." Here, the circuit judges found that the District Court erred by failing to consider whether Abid violated the Act for more than 100 days, which would render the appropriate amount of damages greater than $10,000. Pyankovska argued that Abid violated the Act for at least 707 days, since after Abid illegally intercepted her conversations, he disclosed the contents of the recordings in the Nevada court public docket and later on various public Facebook pages for approximately two years. Using Pyankovska's contention, the amount of the statutory damages should be $70,700, not $10,000. The circuit judges also found that the District Court failed to consider whether punitive damages and costs were appropriate and further failed to address Pyankovska's common law claims and the damages associated with those claims. Accordingly, the Ninth Circuit remanded the matter for the District Court to recalculate the statutory damages as well as provide clarity on the issues of punitive damages, attorney's fees, and damages related to Pyankovska's common law claims.





Pyankovska appealed the Nevada trial court's decision to permit the court-appointed psychologist to review the illegally intercepted recordings, but the Nevada Supreme Court affirmed the decision after finding that Nevada law has no per se rule that such evidence is inadmissible. Abid v. Abid (2017) 133 Nev. 770, 406 P.3d 476. In California, Fam C §2022 provides that evidence obtained by eavesdropping in violation of the Privacy Act, PC §§630-637.5, is inadmissible and that a court may refer such a violation to the proper authority for investigation and prosecution. Certain exceptions exist, including, per PC §633.6, that domestic violence protective orders may include a provision allowing the victim to record any prohibited communication that the perpetrator makes to him or her.


Library References
5 Witkin, Summary of Cal. Law (11th ed. 2023) Torts, §767
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶¶1:59-1:60, 11:9.1



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