9th Circuit Doubts Expectation of Privacy


PASADENA, Calif. (CN) – Attorneys for the hunting group Safari Club International faced an uphill battle Monday in persuading the 9th Circuit to suppress a video that its former president used to support defamation claims against the group.
     In late 2012, Dr. Lawrence Rudolph sued Safari Club International and its board members in Pennsylvania court. He claimed he was forced out of the group after the board falsely accused him of having an extramarital affair with an Atlanta woman, and of submitting bogus invoices.
     Safari Club International “choose to slander and defame my reputation in mean-spirited attack, culminating in my expulsion,” Rudolph said in an introduction to the video he taped of his conversation with Safari Club President John Whipple.
     In the midst of the litigation, Rudolph had met Whipple, who died this month, in an Orange County restaurant on Feb. 20, 2013. During the five-hour conversation the two men discussed the case over several glasses of wine, according to court records.
     In the video, Rudolph discusses the claims made against him by the Safari Club Board and appears to find an advocate in Whipple.
     “This case is in Federal Court. I’ve been to Federal Court. It’s not a kangaroo court like the Safari Club”, Whipple says in the recording.
     Rudolph posted the video on the Internet, claiming that Whipple’s comments vindicated him, and showed that the board’s claims were false.
     But in December 2013, the Safari Club and Whipple filed a California state court action against Rudolph, claiming that Whipple had an expectation of confidentiality, and that Rudolph’s secret video was illegal under California law.
     An Orange County Superior Court Judge granted a temporary restraining order against Rudolph.
     But U.S. District Judge James V. Selna denied the group’s request for a preliminary injunction after Rudolph removed the case to Federal Court.
     Noting that interruptions to the conversation by waiting staff reflected “usual” pauses in conversation, Judge Selna said there was “nothing in Whipple’s body language to suggest he was attempting to maintain privacy.”
     “There is no indication that either Rudolph or Whipple regarded the conversation as confidential or took steps to conceal or limit the hearing of the conversation,” Selna wrote in his Jan. 16, 2014 ruling.
     Rafael G. Nendel-Flores of Costa Mesa firm Ogletree Deakins on Monday argued for Safari Club International at the Richard H. Chambers Courthouse.
     Nendel-Flores said that Selma erred in finding that Whipple did not have an expectation of privacy because the conversation was in a restaurant.
     “One party to the conversation just needs to have a reasonable expectation that no one is listening in and that the conversation isn’t being recorded,” Nendel-Flores said. “There’s no evidence in the record that the waiters were listening in.”
     Judge Kim McLane Wardlaw said the video included some “shocking” revelations that Rudolph had been “set up by some pretty untrustworthy people in the club.”
     “In this day and age do you really have an expectation of privacy, that not everything you’re doing in a public restaurant is not going to be recorded by videotape on somebody’s cellphone, or your picture’s not going to be then put up on YouTube or somewhere else?” Wardlaw said.
     Nendel-Flores disagreed.
     “There still has to be an expectation that an entire four- or five-hour conversation is not going to be secretly recorded without your consent,” Nendel-Flores said. “It’s fundamentally different from someone at the table next to you taking your picture.”
     Heather U. Guerena, with San Diego firm Duane Morris, however, said the video showed that a nearby table reflected in a mirror was roughly 10 feet away from the two men, and that the conversation continued as people move by the table. For that reason, she argued, Rudolph did not violate any state laws and the court should affirm.
     “When spies talk to each other they do it in a public place,” Judge Andrew Jay Kleinfeld said. “This public space thing seems like nonsense to me.”
     But visiting Massachusetts U.S. District Judge Michael Adrian Ponsor wondered why Whipple had cause to believe the conversation was confidential – especially as the two men were adverse parties in a lawsuit.
     “It’s ludicrous,” Ponsor said.
     Whipple died on Friday, Nov. 7. His attorney Joseph J. Nardulli with The Wolf Firm of Irvine filed an emergency motion to delay proceedings. The 9th Circuit denied the motion last week.
     “We express condolences for the passing of your client and that we asked you to come to make your arguments today,” said Judge Wardlaw. Because Judge Kleinfeld and Judge Ponsor live out of state, it would have been difficult for the panel to reconvene at another time, the judge said.
     The court gave the parties 21 days to file new briefs to address the impact of Whipple’s death on the case.
     Rudolph’s Pennsylvania case against Safari Club International Board is pending. He removed his defamation case against the board members to Wyoming.

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