Muslim Group’s Lawsuit Against Author Proceeds

(CN) - A Muslim-American group can press some, but not all, of its claims against the men who allegedly spied on it and then wrote a book based on stolen records, a federal judge ruled.

The Council on American-Islam Relations accused David Gaubatz of directing Chris Gaubatz, his son, to infiltrate the group for his book, "Muslim Mafia: Inside the Secret Underworld That's Conspiring to Islamize America" and a related film project.

To gather material for these efforts, Chris Gaubatz applied for an internship, identifying himself as David Marshall, a Muslim student at Ferrum College whose father worked in construction, according to the complaint.

The council said Chris Gaubatz signed confidentiality and nondisclosure agreements as David Marshall. During the internship, Chris Gaubatz routinely filled the trunk of his car with boxes of sensitive documents, the group claimed.

Those approximately 12,000 stolen documents included budget reports, real estate records, board meeting minutes, strategy papers, agendas and bank statements, according to the complaint.

David Gaubatz reproduced at least 19 of these documents in whole or in part in the "Muslim Mafia" book, the council said.

Documents, emails and company memos also appeared on his blog, along with audio and visual recordings that he made of private council meetings, according to the complaint.

U.S. District Judge Colleen Kollar-Kotelly dismissed several of the council's claims in September 2012, and did so again in considering the parties' latest cross-motions for summary judgment.

While she dismissed most of the council's claims against peripheral parties named in the amended complaint (those who were initially identified as John Does in the original filing, including the Society of Americans for National Existence and its president, David Yerushalmi), Judge Kollar-Kotelly said there is still a live controversy over whether Chris Gaubatz violated the federal and D.C. Wiretap Acts.

The plaintiffs insist that he did, while the defendants claim the recordings he made with a button microphone and camera are protected by the one-party consent rule.

Broadly speaking, federal and many state wiretapping statutes permit recording if one party to a conversation or phone call - including the person doing the recording - consents to that recording.

That protection becomes moot, however, if the conversation has been recorded to deliberately advance a violation of the law.

In this case, Kollar-Kotelly noted, "the parties disagree as to whether Chris Gaubatz was a party to all of the communications he intercepted." The plaintiffs cite four specific instances in which Gaubatz recorded conversations in which he was not participating.

In the case of at least one recording she reviewed, Kollar-Kotelly said Gaubatz was not a party to the conversation and stood behind an individual speaking on the phone. Given the circumstances, "it is not clear from the video or from any other facts in the record whether Chris Gaubatz's presence would have been apparent to this speaker, or if Chris Gaubatz was instead acting as an 'unseen auditor' to whom the one-party consent rule would not apply," the judge wrote.

Based on this lack of clarity, Kollar-Kotelly declined to grant summary judgment to either party regarding this specific recording.

As for the others, the judge found that the one-party consent rule may or may not apply, depending on whether the communication was intercepted for the purpose of committing a criminal or tortious act.

That can only be determined by further review of just what Chris Gaubatz believed or knew his obligations to the council were.

The Muslim-American group claims Gaubatz breached his fiduciary duty to it, violating a confidentiality agreement he read, if not signed, when he was hired to work as an intern.

Gaubatz argues that he was an unpaid intern with no written employment contract, so his obligations could not rise to the level of a fiduciary.

"The question of whether Chris Gaubatz understood himself to be bound by and violating a duty of confidentiality and non-disclosure in recording conversations from plaintiffs' offices is a factual dispute appropriately resolved by a jury," Kollar-Kotelly wrote.

"If he did, his interception of conversations at CAIR-F, even in cases where he was a party to the conversation, would not be protected by the one-party consent rule. Accordingly, the court will deny summary judgment to both parties," she wrote.

Kollar-Kotelly dismissed claims that third parties who received pilfered documents violated the federal Stored Communications Act, but said it remains to be determined whether Chris Gaubatz violated the law.

In moving the case forward, the judge also expressed irritation with the plaintiffs, who she says "have thus far been frustratingly unclear as to the injuries at issue for each of the claims."

The result, she said, is that the defendants "appear to be guessing at what injuries and which damages theories plaintiffs are asserting for each of these claims, which provides no further assistance to the court."

To clarify this, Kollar-Kotelly directed the parties to present the court with more focused and specific briefings, setting out "in clear terms with citations to the record for each of the remaining claims, the conduct underlying this claim, the injury proximately caused by this conduct, and the theory of damages associated with this injury."

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