Applying a 40-Year-Old Statute to the Modern World

• Pages: 23-24
• Date: 01 July 2021
• Author: Mark A. Flores
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

The court also d isagreed with sister

circuits that have emb raced a more

“relaxed standard” during bench tri-

als. It cited the pl ain meaning of the

text of Rule 702, which do es not dis-

tinguish between bench and jury

trials, and com ments from Justice

Stephen G. Breye r in the introduction

to the Reference Manual on Scientif‌ic

Evidence, observing that “j udges lack

the scientif‌ic trai ning that might facili-

tate the evaluation of sci entif‌ic claims

or the evaluation of exp ert witnesses

who make such claim s.”

ABA Litigation Sec tion leaders

advise that, in pra ctice, judges are

more lenient ab out admitting evidence

during bench tr ials. Nonetheless, it is

important to prepare a strong founda-

tion for appeal by cl osely following the

evidence rules . “While in my experi-

ence courts a re somewhat more lais-

sez-faire during a be nch trial, litigators

should not cut cor ners in preparing

expert witness es just because they are

preparing for a b ench trial,” explains

Karen L. Har t, Dallas, TX, cochair o f

the Litigation Sec tion’s Real Estate,

Condemnation & Trust Litigation

Committee.

Expert rep orts should also be

carefully draf ted according to Rule

702. “The exper t [in UGI] made a sig-

nif‌icant error i n failing to reference

prior studies o r data to his report

to support his opinions,” observes

Kenneth M. Kle mm, New Orleans, LA ,

cochair of the Sec tion’s Trial Evidence

Committee. “Without that information,

the court and th e opposing party had

no way to evaluate or test the meth od-

ology that the expe rt relied upon.”

The best way to ensure exp ert tes-

timony will be admit ted is to start pre-

paring early. “Liti gators need to work

during deposi tion testimony to prepare

their expert s to explain their method-

ology to the court a nd the objective

basis for their con clusions,” recom-

mends Hart . “Especially in dealin g with

experts like rea l estate appraisers who

often work with the ge neral public, it

is importan t to work with the expert to

make sure they can expl ain the steps

in their method s and provide objective

data points,” s he says.

Section lead ers also highlight the

importan ce of ensuring experts base

their decision s on reliable, scientif‌ic

methods. “ When the court hears that

an expert is basi ng his or her opinion

not on data but on ‘com mon sense,’

the court is goi ng to question what

the value is of the expe rt. We all have

common sense ,” explains Klemm.

Applying a 40-Year-

Old Statute to the

Modern World

By Mark A. Flo res, Litigation News

Associa te Editor

A statute passed mo re than 40 years

ago, meant to add ress privacy in the

age of telephones, faced a modern-

day test in Popa v. Harriet C artier Gifts,

Inc. In allowing the plai ntis’ class

action claims u nder the Pennsylvania

Wiretapping and Electronic Surveillance

Control Act of 1978 to proc eed, the U.S.

District Cour t for the Western District of

Pennsylvania considered the propriety

of the putative class a nd gave the par-

ties insight into how to con duct discov-

ery moving for ward.

Pennsylvania’s wiretap statute pro-

hibits the interce ption of electronic

communications by “[a]ny telephone

or telegraph instrument, equipment

or facility, or any comp onent thereof.”

It makes no express m ention of the

internet or comp uters. The plainti

alleged that ce rtain companies ille-

gally collecte d her personal data while

she shopped online for pet products.

She brought individual and class

claims for violati on of Pennsylvania’s

wiretap statute an d for invasion of

privacy/intrusion upon seclusion in

Pennsylvania state court.

The defendant s removed the case

to federal cour t under the Class Action

Fairness Act of 200 5 (CAFA) and f‌iled

a motion to dismiss ba sed primarily

on the argument t hat Pennsylvania’s

wiretap statute was in applicable in the

modern age an d attacking the request

to certify a clas s.

The court exercise d jurisdiction

over the case despite th e assertion of

CAFA’s locality exception. Th is excep-

tion prohibits re moval when more

than two-thirds of th e plaintis, and

at least one defe ndant, are citizens of

the state where the c ase was originally

f‌iled, provided n o other class action

had been f‌iled m aking similar allega-

tions in the preced ing three years. The

court found th e existence of six other

cases asserting similar factual allega-

tions against o ne of those defendants

persuasive in ho lding the local contro-

versy exception did not a pply.

This is not surpris ing, explains

Susan L. Sa ltzstein, New York,

NY, cochair of the ABA Litigat ion

Section’s Class Ac tions & Derivative

Suits Commit tee. “Courts have held

the local controvers y exception is an

attempt to thwart copyca t suits,” she

explains. The l awsuit could have sur-

vived had the plain ti recognized the

exception and prepa red a class action

dierent eno ugh to avoid triggering

the exception, she su ggests.

The court also d ismissed the intru-

sion upon seclu sion claim. It recog-

nized the gatherin g of information

did not cause the re quisite men-

tal suering , shame, or humiliation

required to state a cla im for inva-

sion of privacy. The cla im for a viola-

tion of Pennsylvania’s wiretap statute

survived, however, leavin g open the

question of what a pplication a statute

developed at the be ginning of the dig-

ital age can have on th e gathering of

electronic information today.

“While the st atute was enacted

at a time when the inter net was in

its infancy, it remai ns for the courts

to determine whether the legislature

intended to encompass technologi-

cal innovations n ot yet widely used,”

opines Marc J. Zu cker, Philadelphia,

PA, cochair of the Litig ation Section's

Commercial & B usiness Litigation

Committee. “An argument can be

made that techno logy changes so

quickly that it is im possible to itemize

each potential ma nifestation in a stat-

ute, but the question remains whether

the intended scop e was broad or nar-

row,” he continues.

The district cou rt expressly rec-

ognized this ques tion as key to the

ultimate determin ation of this case.

In allowing the Pen nsylvania wiretap

statute claims to move for ward, the

district cour t described the def‌ini-

tions in the statute as b road but not

limitless, st ating that “[t]he discovery

process will give the pa rties an oppor-

tunity to develop a reco rd that contex-

tualizes the condu ct at issue in light of

this statutory language.”

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