|
|
ANDERSON v. HALE
159 F.Supp.2d 1116 (2001)
Reverend Stephen Tracy ANDERSON, Plaintiff,
v.
Matthew F. HALE, the World Church of the Creator, an unincorporated association, and the Estate of Benjamin Nathaniel Smith, Defendants.
No. 00 C 2021.
United States District Court, N.D. Illinois, Eastern Division.
August 23, 2001.
Mary Rose Alexander, Sylvia A. Stein, Paula W. Render, Stephen A. Swedlow, Katherine Davis Vega, Amy J. Kappeler, Latham & Watkins, Chicago, IL, for Plaintiff.
Glenn Greenwald, Greenwald, Christoph & Holland, P.C., New York City, for Defendants.
MEMORANDUM OPINION AND ORDERMORAN, Senior District Judge. Defendants Matthew Hale, The World Church of the Creator, and the Estate of Benjamin Nathaniel Smith have filed objections to Magistrate Judge Ashman's resolution of this discovery dispute. See Fed.R.Civ.P. 72(a). Those objections are denied. The magistrate judge's opinion, Anderson v. Hale, 202 F.R.D. 548 (N.D.Ill. 2001), thoroughly details the factual background, so we only summarize it here. Defendants' counsel recorded telephone conversations with various third party witnesses,
without disclosing to those witnesses that they were being recorded. Counsel and his tape-recorder were both in New York. The witnesses, at least some of them, called from Illinois. Plaintiff moved to compel disclosure of these tapes, arguing that this conduct was unethical and therefore vitiated any attorney workproduct privilege that may have attached to these recordings, and sought a protective order prohibiting any further recordings. The magistrate judge granted both motions, finding defense counsel's conduct unethical under two separate rules: Local Rule 83.58.4(a)(4), prohibiting "dishonesty, fraud, deceit or misrepresentation;" and Local Rule 83.54.4, stating "a lawyer shall not ... use methods of obtaining evidence that violate the legal rights of [another] person." At the outset, we briefly address the timeliness issue. Defendants did not file their objections within the prescribed period. Nonetheless, we have discretion to consider the objections because this deadline is not jurisdictional. Kruger v. Apfel,214 F.3d 784 (7th Cir.2000). We review the magistrate judge's findings to determine whether they are "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). If the question requires an "unadulterated legal conclusion," we ordinarily perform a "more searching" review. See McFarlane v. Life Ins. Co. of N. America,999 F.2d 266, 267 (7th Cir. 1993). Moreover, we have the discretion to conduct a de novo review. See United States v. Frans,697 F.2d 188, 191 n. 3 (7th Cir.1983). Because this is a purely legal question, and one of tremendous importance, we will review this matter de novo. The decisive question is whether recording a phone conversation without so disclosing is inherently deceitful. There is a split of authority. Plaintiff, and the magistrate judge, rely on an American Bar Association opinion and its progeny. See ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 337 (1974) (finding surreptitious recording by attorneys inherently deceitful); 202 F.R.D. at 555 (collecting ethics opinions and cases). A clear majority of jurisdictions, and all the federal courts to consider this issue, agree with this view. Defendants counter with what they describe as "more recent" and "better reasoned" opinions reaching the opposite result. See id. Whether the minority opinions can properly be characterized as more recent is debatable, but largely beside the point. More importantly, the magistrate judge found the majority position better reasoned, and so do we.
1. The fact that counsel may be beyond the statute's reach for purposes of a civil suit is immaterial.
|
|