Dillon v. Seattle Deposition Reporters, LLC, s. 69300–0–1

Decision Date21 January 2014
Docket NumberNos. 69300–0–1,68345–4–1.,s. 69300–0–1
Citation179 Wash.App. 41,316 P.3d 1119
CourtWashington Court of Appeals
PartiesJason DILLON, an individual, Appellant, v. SEATTLE DEPOSITION REPORTERS, LLC, a Washington company; Davis Wright Tremaine, LLP, a Washington company; James Grant and Jane Doe Grant, individually and the marital community composed thereof if any, Defendants.


Dennis Michael Moran, William Arthur Keller, Moran & Keller, PLLC, Bellevue, WA, for Appellant.

Ralph E. Cromwell Jr., Jofrey Malcolm McWilliam, Byrnes Keller Cromwell LLP, Seattle, WA, for Respondent.


¶ 1 Washington's anti-SLAPP 1 statute protects persons who engage in “action[s] involving public participation and petition” from having to defend against a claim based on those actions.2 The recording of telephone conversations is not such an action. This is so even when such recording is designed to gather evidence for a lawsuit between private parties. The anti-SLAPP statute does not operate to transform unprotected activity into protected activity simply because it is undertaken during the course of a lawsuit.

¶ 2 In the matter before us, Jason Dillon filed suit against Seattle Deposition Reporters, LLC, Davis Wright Tremaine, LLP, and James Grant (collectively SDR), alleging certain violations of the privacy act 3 for having recorded Dillon's telephone conversations with Grant and Cassandra Kennan without his knowledge. SDR moved for dismissal on summary judgment, asserting that the conversations were not private and that Dillon's claims were barred by collateral estoppel. SDR also moved to strike the claims pursuant to the anti-SLAPP statute. The trial court ruled that Dillon had no expectation of privacy in the telephone conversations and granted the motion for summary judgment. The trial court further found that the anti-SLAPP statute applied, and awarded to SDR statutory damages of $10,000 per defendant plus attorney fees of $40,000. Judgment in the total amount of $70,000 was entered against Dillon.

¶ 3 Dillon contends that the trial court erred by granting summary judgment, asserting that genuine issues of material fact exist as to whether the telephone conversations he had with Grant and Kennan were private. Dillon also avers that the anti-SLAPP statute does not apply to his claims. Because Dillon presented triable issues of fact, and collateral estoppel does not apply to preclude his privacy act claims, the trial court erred by entering summary judgment in favor of SDR. Furthermore, the anti-SLAPP statute does not apply to Dillon's claims, as SDR's actions did not involve public participation or petition. Thus, we reverse the judgment and remand the cause for further proceedings consistent with this opinion.


¶ 4 Dillon is the former vice-president of NetLogix, a company headed by Scott Akrie and based in San Diego, California. NetLogix contracted with T–Mobile to “perform services in connection with the build out of [T–Mobile's] cellular phone network in California.” In 2010, NetLogix sued T–Mobile in the United States District Court, Western District of Washington, for breach of contract. Grant and Kennan represented T–Mobile in the federal court lawsuit. On August 24, 2011, Dillon e-mailed Grant and Kennan at their law firm, Davis Wright Tremaine (DWT), stating that he would like to “talk about the facts” in the pending federal court action. Kennan arranged for Dillon to call the next day.

¶ 5 Dillon telephoned DWT offices as planned on August 25, 2011. At the start of the conversation, Grant told Dillon,

I wanted to point out something before we get started because we have you on the speaker phone because Cassi and I are both here. And I've got my assistant Thad, who's writing stuff down so that we don't have to worry about taking notes while we're talking to you.

¶ 6 Thad Byrd was not, in actuality, Grant's assistant. Rather, he was a certified court reporter employed by Seattle Deposition Reporters. DWT had previously made arrangements with Seattle Deposition Reporters to have a court reporter sit in on and transcribe the telephone conversation. Byrd set up his stenographic equipment in the room with Grant and Kennan and transcribed their conversation with Dillon. Neither Grant, Kennan, nor Byrd apprised Dillon of this information.

¶ 7 Before revealing any information, Dillon told Grant,

You know, my only concern is I just need to make sure that I'm protected as well if Scott tries to come after me, or I don't want you guys trying to come after me or T–Mobile. I want to make sure I'm protecting myself, but I did want to speak with you guys.

Grant responded, “Okay, understood. At this time, we just want to hear what you have to say.” Dillon also stated, “Just so I protect myself, maybe it's better that I actually just get my own attorney, talk to them about kind of what—you know, about the information and get some advice from them, and then call you guys back.”

¶ 8 Nonetheless, Dillon continued the conversation with Grant and Kennan. Dillon proceeded to describe various instances of misconduct by both parties to the federal court action, including a kickback scheme instituted by T–Mobile employees, falsification of records committed by NetLogix employees, and willful destruction of unfavorable evidence committed by Akrie or at Akrie's direction. Dillon also stated that Akrie “offered me 10 percent of the profit of this lawsuit to support him,” and that he did not “have a problem writing a declaration for you guys.”

¶ 9 Dillon telephoned DWT again on September 16, 2011. This telephone call was also transcribed by an employee of Seattle Deposition Reporters.4 Again, Dillon was not apprised of the presence of the court reporter, or even of anyone there to “take notes” during this call. During this call, Dillon confirmed, with one small change, the written declaration Grant and Kennan had previously prepared and sent to him. The following exchange occurred between Grant and Dillon during the call:

Q. [Grant]. I had thought of actually putting something in the declaration saying that that's your concern and that's why you approached us, that your concern is that you had been told, instructed to provide information that was inaccurate. Is that something that you'd be comfortable saying, or that just between us at this point?

A. [Dillon]. Sure.

Q. Okay.

A. Well, actually I talked with a friend who's an attorney, and he said just to protect myself from Scott is—Scott and Bill, I guess, mainly, is, you know, for you guys to take my deposition again and ask these questions, so I'm under oath and they can't come back and say that, you know, that I'm trying to maliciously hurt Scott. I'm not.

Dillon also elaborated on information he had revealed during the first call, and informed Grant and Kennan that Akrie had coached NetLogix employees on what to say in connection with the lawsuit. However, 10 days later, Dillon e-mailed Grant and Kennan statingthat he was “unable to sign” the declaration they had prepared.5

¶ 10 On October 6, 2011, T–Mobile filed a motion for dismissal in the federal court action alleging spoliation of evidence, based largely on statements uttered by Dillon in the telephone conversations. Given that Dillon refused to sign the proffered declaration, T–Mobile filed portions of the transcripts of both calls in support of the motion. After Dillon learned of this, he sent an e-mail to Grant and Kennan expressing his “outrage” at them for having “deceivingly record[ed] the conversations. NetLogix and Dillon then requested copies of the transcripts in their entirety. DWT refused NetLogix's request, asserting that the transcripts were protected by the work product privilege. 6

¶ 11 On February 2 and February 16, 2012,7 the federal court held an evidentiary hearing to determine whether NetLogix had willfully destroyed evidence and if dismissal was warranted as a result. The court called Dillon to testify as a witness at that hearing. Dillon disavowed a number of statements from both the August 25 and September 16 telephone calls, and repeatedly testified that he had made various previous statements “out of frustration.” The court requested briefing from both parties prior to making a credibility determination as to Dillon's testimony.

¶ 12 The federal court issued its ruling on March 14, 2012. The court found that Dillon's statements in the telephone conversations were credible, and that Dillon's testimony at the evidentiary hearing was “wholly incredible.” The court further found that the transcripts presented “overwhelming evidence of spoliation,” and concluded that dismissal of the case was “the only appropriate remedy” given the egregious misconduct committed by the plaintiffs. In its written opinion, the court stated, [T]he Court does not believe that Defendant's counsel violated Washington law by recording their discussions with Dillon.” Volcan Grp., Inc. v. T–Mobile USA. Inc., 940 F.Supp.2d 1327, 1338 (W.D.Wash.2012). In a footnote to its opinion, the court stated:

Although Dillon clearly did not consent to a transcription of his conversation with Defendant's counsel, that is not to say that he intended the call to be “private.” On the contrary, Dillon clearly understood that Defendant's counsel intended to use the information he was providing in connection with these proceedings, and Dillon even offered to provide them with a sworn declaration regarding his statements. As such, those statements were not intended to be, and were not in fact, “private.”

Volcan Grp., 940 F.Supp.2d at 1338 n. 7. The court granted the motion to dismiss, but not before admonishing both parties and their counsel for their unprofessional behavior.8

¶ 13 Dillon filed suit against SDR in King County Superior Court, alleging that the various defendants violated the privacy act by recording the telephone conversations of August 25 and September 16. SDR moved for summary judgment, asserting that the conversations were...

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