772 F. Supp. 2d 1046
D. Neb.2011Background
- Lewton and Divingnzzo were parents disputing custody of Ellenna, with the state court granting Dianna primary custody but allowing Duke visitation.
- Dianna secretly placed a recording device in Ellenna's teddy bear to capture Duke during visits and other conversations involving the plaintiffs.
- Recordings were copied, transcribed, and provided to Dianna's attorney and others; the state court later ruled the recordings inadmissible.
- Dianna and her father, Sam Divingnzzo, along with attorney Bianco, disclosed and used the recordings to advance Dianna's position in the custody case.
- Judge Arterburn authorized suppression of the recordings and ordered limits on further surveillance; a settlement later awarded joint custody with Dianna retaining primary possession.
- Plaintiffs brought federal Wiretap Act claims and state-law privacy-related claims; liability focused on the intercepts, uses, and disclosures tied to the custody proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for intercepting communications | Divingnzzo intercepted private conversations using Little Bear. | Interception may be permissible under consent or privilege defenses. | Divingnzzo liable for intercepting plaintiffs' oral communications under § 2511(1)(a)/(b). |
| Liability for use or disclosure of intercepted communications | Defendants knowingly used/disclosed recordings to support the Custody Case. | Any disclosures were within attorney-client or defense contexts. | Divingnzzo liable for use/disclosure under § 2511(1)(c)/(d); Bianco also liable for use/disclosure. |
| Attorney immunity or privilege defenses | No blanket immunity for attorneys; devices and transcripts were used to advance clients’ positions. | Attorneys may be immune or privileged for disclosures related to representation. | No blanket immunity; defense/privilege defenses rejected for attorney defendants; limited potential privilege acknowledged but not applicable here. |
| Vicarious consent and guardian roles | Guardian/parents may not authorize tapping on behalf of a child. | Vicarious consent could apply in some contexts. | Vicarious consent does not validate tapping; evidence shows no lawful basis for consent; damages still imposed on interceptors. |
| Federal jurisdiction over state-law claims; remand/supplemental jurisdiction | State-law claims are related and should be adjudicated in federal court. | Courts should decline jurisdiction over domestic-relations-related state claims. | Court declines supplemental jurisdiction over state-law claims. |
Key Cases Cited
- Kempf v. Kempf, 868 F.2d 970 (8th Cir. 1989) (wiretap statute prohibits all non-excepted wiretapping)
- Nix v. O'Malley, 160 F.3d 343 (6th Cir. 1998) (no blanket attorney immunity under Title III)
- Smoot v. United Transp. Union, 246 F.3d 633 (6th Cir. 2001) (regarding statutory damages under § 2520)
- Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994) (extension of privilege/defense context under state law; relevant to immunity)