Civil practice Subpoena Recorded calls.

Byline: Mass. Lawyers Weekly Staff

Where (1) the government issued an administrative subpoena duces tecum for all recorded conversations of a corporation's officers and employees and (2) a U.S. magistrate judge ruled that the subpoena should be quashed in part, finding that the corporation violated the Federal Wiretap Act by continuing to record an employee's telephone conversation after she was promoted, a U.S. District Court judge's decision to reverse the magistrate judge's order should be affirmed because of a lack of evidence that the corporation's interception of the employee's extension after her promotion and relocation to a different floor was intentional.

"Intervenors-Appellants J. Arthur Wood, Karen Middlebrooks ('Middlebrooks'), Michael Herbert, and Amy Ollett (collectively 'Appellants') appeal the district court's order reversing a magistrate judge's quashing of an administrative subpoenaduces tecum. The magistrate judge found that Patient Services, Inc. ('PSI'), Appellants' employer, began recording telephone conversations from Middlebrooks's extension during the course of her employment as a Program Manager in PSI's call center, which was located on the second floor (where calls were regularly recorded), and intentionally continued recording Middlebrooks's calls after her promotion and subsequent transfer to the third floor (where calls were not regularly recorded), in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2522 ('Title III'). The Government timely objected to the magistrate judge's ruling pursuant to 28 U.S.C. 636(b)(1)(A), arguing that the magistrate judge's finding that the recordings violated Title III 'was clearly erroneous because proof of a Title III violation requires evidence of intent,' and Appellants had presented no evidence that PSI intended to continue intercepting and recording telephone conversations from Middlebrooks's extension after she relocated to the third floor. The district court sustained the Government's objection, finding that the magistrate's opinion was contrary to law because he had inappropriately shifted the burden of proof to the Government. The district court held that Appellants bore the burden of proving that PSI's interception of calls from Middlebrooks's extension after her move to the third floor was intentional, and that they failed to meet their burden. Accordingly, the court reversed the magistrate's order that had quashed the...