Goodspeed v. Harman

• Decision Date: 11 March 1999
• Docket Number: Nos. 3-97-CV-2681-BD through 3-97-CV-2686-BD.,No. 3-97-CV-2739-BD.,No. 3-97-CV-2740-BD.,s. 3-97-CV-2681-BD through 3-97-CV-2686-BD.,3-97-CV-2739-BD.,3-97-CV-2740-BD.
• Parties: Houston GOODSPEED, Plaintiff, v. Charles HARMAN, Sr., Defendant. Sue Kendrick, Plaintiff, v. Charles Harman, Sr., Defendant. John Kendrick, Plaintiff, v. Charles Harman, Sr., Defendant. Don Timberlake, Plaintiff, v. Charles Harman, Sr., Defendant. Amy Peavy Wood, Plaintiff, v. Charles Harman, Sr., Defendant. Virginia Moore, Plaintiff, v. Charles Harman, Sr., Defendant. Dave Richardson, Plaintiff, v. Charles Harman, Sr., Defendant. Jay Stephenson, Plaintiff, v. Charles Harman, Sr., Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 787

39 F.Supp.2d 787

Houston GOODSPEED, Plaintiff, v. Charles HARMAN, Sr., Defendant.

Sue Kendrick, Plaintiff, v. Charles Harman, Sr., Defendant.

John Kendrick, Plaintiff, v. Charles Harman, Sr., Defendant.

Don Timberlake, Plaintiff, v. Charles Harman, Sr., Defendant.

Amy Peavy Wood, Plaintiff, v. Charles Harman, Sr., Defendant.

Virginia Moore, Plaintiff, v. Charles Harman, Sr., Defendant.

Dave Richardson, Plaintiff, v. Charles Harman, Sr., Defendant.

Jay Stephenson, Plaintiff, v. Charles Harman, Sr., Defendant.

Nos. 3-97-CV-2681-BD through 3-97-CV-2686-BD.

No. 3-97-CV-2739-BD.

No. 3-97-CV-2740-BD.

United States District Court, N.D. Texas, Dallas Division.

March 11, 1999.

Michael J. Quilling, Quilling Selander Cummiskey Clutts & Lownds, Dallas, Texas, for plaintiffs.

Thomas S. Leatherbury, William D. Sims, Vinson & Elkins, Dallas, Texas, for defendants WFAA-TV and Robert Riggs.

Frank H. Jackson, Law Office of Frank Jackson, Dallas, Texas, for defendant Charles James Harman, Sr.

MEMORANDUM OPINION AND ORDER

KAPLAN, United States Magistrate Judge.

Plaintiffs have sued Charles Harman, Sr. in separate actions under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1996, 18 U.S.C. § 2510, et seq. ("Title III").¹ A bench trial was held on January 19, 25 & 26, 1999. The Court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I.

The facts of this case are set forth at length in the report and recommendation of the magistrate judge in two related lawsuits. Carver Dan Peavy, et al. v. Charles Harman, et al., No. 3-96-CV-1506-R and Eugene Oliver, et al. v. WFAA-TV, Inc., et al., No. 3-96-CV-3436-L.² Succinctly stated, Charles Harman purchased a police scanner in December 1994 to monitor criminal activity in his neighborhood. The first time Harman used the scanner he inadvertently intercepted a signal from a cordless telephone being used by his neighbor, Dan Peavy. Harman overheard Peavy talking to another neighbor about filing a class-action lawsuit against him and his wife.³ This piqued his interest and he continued to monitor Peavy's phone calls.

Harman was unsure whether it was legal to tape these conversations. He consulted the scanner manual and talked with representatives of the Dallas Police Department and the Dallas County District Attorney's Office. Harman claims he was told that he could intercept and record private telephone calls between Peavy and others. Based on those assurances, Harman listened to his scanner every day for the next ten months and taped about 10% of what he heard.⁴

The Peavys talked over the telephone to countless friends, family members, and business associates during this ten-month period. Eight of them have now sued Harman for damages under the federal wiretap statute. The Court previously ruled that Harman violated the statute and rejected his defenses. See ORDER, 11/13/98 at 3. Two issues remain: (1) whether plaintiffs were parties to one or more of the intercepted telephone conversations; and (2) the appropriate amount of damages. The Court will address each issue in turn.

II.

Title III imposes criminal and civil liability upon any person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). The Court has already determined that Harman acted consciously, as opposed to accidentally, to bring about the consequences of his actions. See Peavy, No. 3-96-CV-1506-R, FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE, 10/15/98 at ¶ V(A)(1). Therefore, he "intentionally" violated the statute.

Plaintiffs introduced transcripts of telephone conversations between themselves and Dan Peavy during their case-in-chief. (Plf.Exh.2-9). Each plaintiff testified that: (1) they listened to the tapes made by Harman; (2) they recognized their voice on the tapes; (3) the transcripts accurately reflected the contents of the tapes; and (4) they did not give anyone permission to record their conversations. Harman does not contest these facts. Plaintiffs therefore have proved that Harman intercepted their communications in violation of 18 U.S.C. § 2511(1)(a).

Plaintiffs further argue that Harman violated the disclosure prong of the statute. See 18 U.S.C. § 2511(1)(c). A communication is "disclosed" every time it is played to a third party who has not yet heard it. Fultz v. Gilliam, 942 F.2d 396, 402 (6th Cir.1991). However, a defendant "need not play the tapes or repeat the conversations to be liable." Deal v. Spears, 980 F.2d 1153, 1158 (8th Cir.1992). Title III prevents the disclosure of "any information concerning the substance, purport, or meaning of [the] communications." 18 U.S.C. § 2510(8). Therefore, even revealing the general nature of a communication or intimating its contents may constitute an actionable disclosure. See Deal, 980 F.2d at 1156.

Very little evidence was adduced at trial concerning the disclosure of these intercepted communications. Harman testified that he played part of a taped recorded conversation between Jay Stephenson and Dan Peavy when he met with a reporter for WFAA-TV in December 1994. This clearly constitutes an intentional disclosure in violation of Title III. Harman also said that he gave copies of other tapes to the reporter and various law enforcement officials. However, there was no evidence that the tapes contained communications with any of the plaintiffs or that these parties even listened to the tapes.⁵ The Court finds that only Jay Stephenson is entitled to damages for the disclosure of information obtained in violation of the wiretap statute.

III.

A person whose wire, oral, or electronic communication is intentionally intercepted, disclosed, or used may file a civil action against the person or entity that violated the statute. 18 U.S.C. § 2520(a). Appropriate relief includes damages and reasonable attorney's fees. Id. § 2520(b). The Court may assess as damages "whichever is the 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 the greater of $100 a day for each day of violation or $10,000."

Id. § 2520(c)(2). Here, plaintiffs seek only statutory damages for the interception and disclosure of their communications.

A.

The Court must first decide whether the award of statutory damages is mandatory once plaintiffs prove a violation of Title III. This is the rule in the Seventh Circuit. See Rodgers v. Wood, 910 F.2d 444, 448 (7th Cir.1990). At least one federal district court is in accord. See Menda Biton v. Menda, 812 F.Supp. 283, 284 (D.P.R. 1993). However, this Court disagrees with those decisions.

Title III expressly provides that the Court may assess damages for a violation of the statute. 18 U.S.C. § 2520(c)(2). The use of the term "may" does not necessarily imply a grant of discretion if "indications of legislative intent to the contrary or ... obvious inferences from the structure and purpose of the statute" suggest otherwise. Reynolds v. Spears, 93 F.3d 428, 434 (8th Cir.1996), citing United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 2149, 76 L.Ed.2d 236 (1983). However, Congress specifically replaced the word "shall" with the word "may" when it amended section 2520(c) in 1986. Nalley v. Nalley, 53 F.3d 649, 652 (4th Cir.1995). "When the wording of an amended statute differs in substance from the wording of the statute prior to amendment, we can only conclude that Congress intended the amended statute to have a different meaning." Id., citing Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444 (D.C.Cir. 1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989); see also Romano v. Terdik, 939 F.Supp. 144, 147 (D.Conn.1996) (failure to explain change in language allows court to rely on natural meaning of the word "may"). In these circumstances, the plain meaning of the term should prevail "except in the rare case in which the literal application of the statute will provide a result demonstrably at odds with congressional intent." Nalley, 53 F.3d at 652, citing United States v. Ron Pair Enterprises, 489 U.S. 235, 242, 109 S.Ct. 1026, 1030-31, 103 L.Ed.2d 290 (1989). Every other federal court that has considered this issue has found that Title III does not constitute such an exception. See Reynolds, 93 F.3d at 434-35; Nalley, 53 F.3d at 651; Romano, 939 F.Supp. at 148; Shaver v. Shaver, 799 F.Supp. 576, 580 (E.D.N.C.1992). The Court finds these authorities persuasive and holds that the award of statutory damages under Title III is discretionary rather than mandatory.⁶

B.

Next, the Court must decide what factors guide its discretion. Most courts have declined to award damages for de minimis violations of the wiretap statute. A variety of factors are relevant to this determination:

(1) the duration of the interception or the extent of the disclosure;

(2) the reason for the interception;

(3) whether the defendant reasonably believed that his actions were legal;

(4) whether the interceptions resulted in actual damages to the plaintiff;

(5) whether the defendant profited from the interception; and

(6) whether the defendant has already been punished in some other proceeding.

See, e.g. Morford v. City of Omaha, 98 F.3d 398, 401 (8th Cir.1996); Reynolds, 93 F.3d at 436; Nalley, 53 F.3d at 653-54; Romano, 939 F.Supp. at 150.⁷

The last three factors are not particularly relevant to this case. There is no evidence that Harman profited from his actions. Nor has he been punished in some other proceeding for the wiretap violations made the basis of this suit.⁸ Finally the Court is not convinced that any of the plaintiffs suffered actual damages worthy of compensation. While they all expressed...