A criminal defense attorney who claims CoreCivic Inc. recorded privileged calls with her clients at a Nevada detention facility got her suit partly revived, because the statute of limitations may not bar all her claims, the U.S. Court of Appeals for the Ninth Circuit ruled on Tuesday (article available here).
The attorney received discovery from the government in June 2016 which included recordings CoreCivic, a private prison, made of multiple privileged telephone calls between the attorney and her client. After complaining to the government and the court, and believing it would make CoreCivic stop, the attorney resumed telephone communications with her clients at the Nevada facility. But the company allegedly continued to record calls between attorneys and their clients at the facility through February 2019.
The attorney brought a potential class action under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and Nevada’s largely identical wiretap act. The district court had ruled that the suit was filed after the two-year deadline. The Ninth Circuit partially reversed. The court held a plaintiff must bring an action under the wiretap law no “later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.” Specifically, each intercepted phone call qualifies as a discrete “violation,” triggering its own limitations period. “There simply is no textual basis for morphing what otherwise would be considered separate violations into a single violation because they flow from a common practice or scheme,” it added.
The case is Bliss v. CoreCivic Inc., No. 19-16167 (9th Cir. Oct. 27, 2020).