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Lawyer’s Suit Against Private Prison for Recorded Calls Revived

Oct. 27, 2020, 6:30 PM

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 Ninth Circuit said Tuesday.

Kathleen Bliss says she received discovery from the government in June 2016 which included recordings CoreCivic made of multiple privileged telephone calls between Bliss and one of her clients. Bliss says she complained to the government and the court, believing it would make CoreCivic stop, and 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.

Bliss 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 ruled her claims were barred under a two-year statute of limitations. It reasoned that Bliss’ claims arose from CoreCivic’s call recording policy, and the statute of limitations for all calls intercepted under this protocol began running when the government first produced discovery putting Bliss on notice of the policy in June 2016.

The U.S. Court of Appeals for the Ninth Circuit partially reversed.

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.”

Each intercepted phone call qualifies as a discrete “violation,” triggering its own limitations period, the court said. “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 district court must determine when Bliss first had a reasonable opportunity to discover that her calls made after June 2016 were still being recorded, the appeals court said.

The opinion was written by Judge Danielle J. Hunsaker and joined by Judges Eric D. Miller and Patrick J. Schiltz, sitting by designation from the District of Minnesota.

Nichols Kaster PLLP and Paul Padda Law PLLC represent Bliss. Struck Love Bojanowski & Acedo PLC and Dennett Winspear LLP represent CoreCivic.

The case is Bliss v. CoreCivic Inc., 9th Cir., No. 19-16167, 10/27/20.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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