978 F.3d 1144
9th Cir.2020Background
- Kathleen Bliss, a Nevada criminal-defense attorney, learned from government discovery that CoreCivic recorded privileged calls between her and a detained client; initial productions containing recordings were dated June 27 and July 18–19, 2016.
- Bliss continued telephoning clients after receiving the June/July productions because she did not review the discovery until late September 2016; she later alleged CoreCivic continued recording calls through February 2019.
- Bliss sued CoreCivic on July 12, 2018 under the federal Wiretap Act and Nevada’s wiretap statute, alleging recordings continued after July 12, 2016.
- CoreCivic moved for summary judgment, arguing the Act’s two-year limitations period began when Bliss received the initial discovery (June 27, 2016), so Bliss’s suit was time-barred.
- The district court adopted a scheme-based accrual approach (relying on Sparshott), holding the statute began when Bliss first had notice of CoreCivic’s recording protocol and granted summary judgment.
- The Ninth Circuit held that each interception (each recorded call) is a separate violation that triggers its own limitations period, affirmed timeliness dismissal as to calls discoverable before June 27, 2016, and remanded to determine accrual for calls after that date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “the violation” in 18 U.S.C. § 2520(e) (statute of limitations trigger) | “The violation” means each discrete interception/recorded call; each call starts its own 2-year clock. | “The violation” means the overall recording scheme/protocol; limitations start when plaintiff first learns of the scheme. | Each interception is a separate violation; statute of limitations is triggered anew for each recorded call. |
| Accrual/timeliness of Bliss’s claims | Claims based on calls recorded after Bliss learned of earlier recordings are timely if she lacked a reasonable opportunity to discover them within two years. | Claims are barred because Bliss had notice of CoreCivic’s recording practice as of the first discovery production. | District court correctly held claims untimely for calls Bliss had a reasonable opportunity to discover more than two years before suit (i.e., before June 27, 2016); remanded to determine reasonable-opportunity accrual for post-June 27 calls. |
Key Cases Cited
- Sparshott v. Feld Entm’t, Inc., 311 F.3d 425 (D.C. Cir. 2002) (interpreting accrual for multi-incident surveillance schemes)
- Fultz v. Gilliam, 942 F.2d 396 (6th Cir. 1991) (each unlawful interception gives rise to a separate cause of action)
- DirecTV, Inc. v. Webb, 545 F.3d 837 (9th Cir. 2008) (statutory-damages provision considered in assessing per-day damages)
- In re Cases Filed by DIRECTV, Inc., 344 F. Supp. 2d 647 (D. Ariz. 2004) (each interception may give rise to discrete claims)
- Maracich v. Spears, 570 U.S. 48 (2013) (statutory text interpreted in context of the whole statute)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (textualist interpretive approach)