United States Court of Appeals For the First Circuit
No. 19-1424
IN RE: HIPAA SUBPOENA (PATIENT SERVICES, INC.) ___________________
J. ARTHUR WOOD; KAREN MIDDLEBROOKS; MICHAEL HERBERT; AMY OLLETT,
Petitioners, Appellants,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Boudin, and Kayatta, Circuit Judges.
Frank A. Libby, Jr., with whom Brian J. Sullivan and LibbyHoopes, P.C. were on joint brief, for appellant Wood. Bruce A. Singal, with whom Lauren E. Dwyer and Barrett & Singal, PC were on joint brief, for appellants Middlebrooks, Herbert, and Ollett. Gregg Shapiro, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, and Abraham R. George, Assistant United States Attorney, were on brief, for appellee. June 5, 2020
-2- TORRUELLA, Circuit Judge. 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 subpoena duces 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
-3- 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 subpoena. Appellants timely appealed. After careful
consideration, we affirm.
I. BACKGROUND
A. Factual Background1
PSI is a non-profit organization operating in
Midlothian, Virginia. It provides financial assistance to patients
suffering from life-threatening diseases who are not otherwise
fully covered by their insurance plans. PSI employs Patient
Service Representatives, who handle over-the-phone inquiries from
patients about financial assistance applications. PSI also
employs Assistant Program Managers, who manage the Patient Service
Representatives, as well as Program Managers, who supervise both
Assistant Program Managers and Patient Service Representatives.
1 Readers of this opinion should be careful to note that (aside from the allegation that PSI improperly recorded phone calls) the record contains no charge, and certainly no finding by any court, that any person or company named in this opinion has engaged in any misconduct at all.
-4- Patient Service Representatives, Assistant Program Managers, and
Program Managers work in the call center, which is located on the
second floor of PSI's three-story building; the third floor is
reserved mostly for executive-level employees.
In or about May 2011, PSI purchased a new telephone
system from NEC Corporation that allowed PSI to record telephone
calls made to and from certain extensions. Cottrell Communications
Corporation ("Cottrell") installed the system. PSI purchased
recording licenses for each telephone extension from which it
wished to record conversations. The recording licenses, which
were manually assigned to specific extensions, operated through a
"Record and Evaluate" software system. The system only recorded
calls from the telephones connected to extensions with an assigned
recording license. Each employee had a telephone extension
assigned, which originated from the telephone jack located in the
employee's office, rather than from the telephone itself. Thus,
the recording licenses followed the employees' extensions rather
than the telephones.
In order to record calls from a specific extension,
someone at PSI needed to log into its "Record and Evaluate" system,
open the screens that listed the purchased licenses, and then drag
and drop the purchased recording license to a specific extension.
Once this process was completed, the recording system would
-5- automatically record all calls made to and from the newly licensed
extensions and store the recordings in the "Record and Evaluate"
system server. NEC designed these recording licenses to
continuously operate until the license was manually disabled
through the same "Record and Evaluate" system that was used to
assign them in the first place.
Few PSI employees were involved in installing the new
telephone system. James Grifasi ("Grifasi"), a Network Engineer
at PSI, and his assistant, Chip Saunders ("Saunders"), worked with
Cottrell contractors to install the new system. Grifasi was the
only person authorized to order the extensions rewired, and
Grifasi, Saunders, and two Cottrell contractors were the only
individuals authorized to physically rewire the extensions.
Furthermore, Grifasi and Saunders were the only two PSI employees
with the administrator privileges required to access the recorded
conversations. Both Grifasi and Saunders could access the "Record
and Evaluate" system and see which extensions had been assigned
recording licenses. The recording system was installed with the
intent of only recording the calls of the Patient Service
Representatives, Assistant Program Managers, and Program Managers
working in PSI's second-floor call center, as well as those of a
select group of employees working on the other floors. Generally,
the system was not intended to record calls made by the executives
-6- and other employees who worked on the third floor. Most
administrative staff were also exempted from being recorded.
PSI hired Middlebrooks as a Patient Service
Representative in 2004, and then promoted her to a Program Manager
position within the call center in 2006. At some point in 2011,
PSI assigned Middlebrooks the extension 1306, which had a recording
license. According to the established protocol, the "Record and
Evaluate" system recorded Middlebrooks's calls from that line. In
late 2011 or early 2012, PSI promoted Middlebrooks to the position
of Manager of Program Development and moved her to an office on
the third floor, where calls are typically not recorded.
Generally, when PSI moved an employee to a new office, the employee
would be assigned the extension number connected to the phone jack
in the new office. However, Middlebrooks and at least one other
employee retained their extensions when they were relocated to new
offices on different floors.2
PSI had to take several steps to move an employee's
extension from one office to another. The wires from each phone
jack led to a central panel, called a "110 punch/wiring block."
To move an extension, the wires connecting a particular phone jack
to the central panel needed to be removed and then re-installed to
2 The other employee moved from the second floor to the first floor.
-7- a new line on the punch panel. This rewiring process did not
affect the recording license assigned to an extension. Instead,
the recording license remained in place even if the extension
itself was moved from one office to another. In order to stop
recording a particular extension, Grifasi or Saunders needed to
log into the "Record and Evaluate" system and manually remove the
license from that extension. When Middlebrooks was promoted and
relocated to the third floor, PSI successfully transferred her
extension to her new office on the third floor, but no one at PSI
manually terminated the recording license that had been assigned
to her extension on the second floor. Thus, the system continued
recording calls that were placed from and received by her
extension. PSI recorded several telephone conversations between
Middlebrooks and the other appellants in this case after
Middlebrooks moved to the third floor.
B. Procedural Background
In July 2016, when investigating whether PSI had engaged
in an illegal kickback scheme involving pharmaceutical
manufacturers and Medicare beneficiaries, pursuant to 18 U.S.C.
§ 3486, the Government issued an administrative subpoena duces
tecum to PSI for "[a]ll recorded conversations of PSI officers and
employees." This appeal concerns only those conversations that
were recorded on Middlebrooks's extension after she was promoted
-8- and moved to the third floor.3 PSI contends that it first learned
about the recordings in question after it was served with the
subpoena. Only when PSI commenced its efforts to comply with the
subpoena did Appellants learn that their conversations with
Middlebrooks had been recorded without their knowledge or consent.
Consequently, Appellants moved as intervenors to quash the
subpoena, alleging that PSI's recording of their telephone
conversations should not be produced because they were obtained in
violation of Title III. In October 2017, the district court
referred the case to Magistrate Judge Donald L. Cabell.
After a motion hearing, on August 15, 2018, the
magistrate judge issued an order granting Appellants' motion to
quash. In re HIPAA Subpoena, No. 17-mc-91097 (D. Mass. Aug. 15,
2018). The magistrate judge noted that PSI had intentionally
intercepted and recorded calls from Middlebrooks's extension while
she worked in PSI's call center on the second floor. Id. at 4,
8. Then, after she was promoted, PSI intended to transfer her
extension to her new office on the third floor. Id. at 5. The
magistrate further noted that PSI knew that it needed to take a
series of steps to successfully transfer her extension to the third
3 The parties do not dispute that PSI could record Middlebrooks's calls when she worked as a Program Manager in PSI's second-floor call center.
-9- floor, and that it needed to manually remove the recording license
from the system in order to stop recording calls on Middlebrooks's
extension. Id. at 5-6. Yet, PSI took all the steps necessary to
transfer Middlebrooks's extension to the third floor but failed to
manually remove the recording license. Id. at 6. The magistrate
noted that "the evidence before the [c]ourt [did] not plainly
explain why PSI failed to terminate the recording license when
rewiring Middlebrooks'[s] extension," but he refused to find that
this omission was the product of inadvertence or mistake because
PSI had "remain[ed] silent" about why it failed to remove the
recording license and, in any event, PSI "should have known when
it rewired [Middlebrooks's] extension that her calls would
continue to be recorded unless it acted to stop the practice."
Id. at 9-11. Based on these findings, the magistrate judge
concluded that PSI had continued to intentionally record calls on
Middlebrooks's extension even after her relocation to the third
floor, in violation of Title III, which merited the quashing of
the subpoena. Id. at 11-12.
The Government objected to the magistrate judge's order
pursuant to 28 U.S.C. § 636(b)(1)(A). It argued 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 there [was] no such evidence here." The Government
-10- noted that Appellants bore the burden of proving intent, yet they
had presented no evidence that PSI intended to continue
intercepting and recording telephone conversations from
Middlebrooks's extension after her relocation to the third floor.
According to the Government, the evidence showed, at most, that
PSI "made a mistake when it failed to stop recording Ms.
Middlebrooks's line," which "may have been the product of
negligence or gross negligence," but that was not enough to support
a finding of intent.
On April 4, 2019, the district court sustained the
Government's objection to the magistrate judge's order and
reversed the magistrate's quashing of the subpoena. In re HIPAA
Subpoena, No. 17-91097, slip op. at 12 (D. Mass. April 4, 2019).
The district court found that the magistrate's opinion was contrary
to law because he had inverted the burden of proof by requiring
the Government to prove that PSI had continued to record
Middlebrooks's extension by inadvertence or mistake. Id. at 10.
The district judge agreed that PSI meant to record Middlebrooks's
telephone calls while she was on the second floor and should have
been aware of the consequences of rewiring her extension to the
third floor without simultaneously cancelling the recording
license. Id. at 11. Nonetheless, it concluded that the magistrate
judge relied on the absence of evidence explaining why PSI failed
-11- to stop recording telephone conversations from Middlebrooks's
extension instead of requiring Appellants to prove that it was
PSI's conscious objective to continue to record Middlebrooks's
conversations after her promotion. Id. at 11-12. Accordingly,
the court reversed the magistrate's order that had quashed the
subpoena. Id. at 12. Appellants timely appealed.
II. DISCUSSION
A. Standard of Review
A district court may reconsider an order on a pretrial
matter designated to a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) if the magistrate judge's order is "clearly
erroneous or contrary to law." Like the district court, this
Court reviews the magistrate judge's factual findings for clear
error. Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir.
1999) (noting that, "[l]ike the district court, we review [the
magistrate judge's] factual findings under the 'clearly erroneous'
rubric" (citing 28 U.S.C. § 636(b)(1)(A))). This means that we
accept the magistrate judge's findings of fact and the conclusions
drawn therefrom unless, after analyzing the entire record, we "form
a strong, unyielding belief that a mistake has been made." Id.
(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990)). We review de novo whether an order is contrary
to law. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15
-12- (1st Cir. 2010) ("[W]e, like the district court, must afford de
novo review to . . . purely legal question[s].").
B. Applicable Law
Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. §§ 2510-2522, also known as the Federal
Wiretap Act,4 was enacted to "(1) protect[] the privacy of wire
and oral communications, and (2) delineat[e] on a uniform basis
the circumstances and conditions under which the interception of
wire and oral communications may be authorized." United States
v. Cartagena, 593 F.3d 104, 108 n.1 (1st Cir. 2010) (quoting
Gelbard v. United States, 408 U.S. 41, 48 (1972)). It prohibits
the intentional "interception[ 5 ] of telephone conversations,
subject to certain exceptions [not applicable here], without a
court order."6 United States v. Lewis, 406 F.3d 11, 14 (1st Cir.
4 See United States v. Larios, 593 F.3d 82, 84 (1st Cir. 2010). Title III was amended by the Electronic Communications Privacy Act of 1986 ("ECPA"). Pub. L. No. 99-508, 100 Stat. 1848; see also Bartnicki v. Vopper, 532 U.S. 514, 524 (2001) (explaining some aspects in which the ECPA amended Title III and "enlarged [its] coverage"). 5 "The statute defines 'intercept[ion]' as 'the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.'" Larios, 593 F.3d at 90 (quoting 18 U.S.C. § 2510(4)). 6 One of the ways in which the ECPA amended Title III was by changing the state of mind requirement from "willful" to "intentional." In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003) (explaining how the ECPA's legislative history makes
-13- 2005) (citing 18 U.S.C. §§ 2511, 2518); see also United States v.
Councilman, 418 F.3d 67, 72 (1st Cir. 2005) (en banc). Title III
further prohibits the subsequent use or disclosure of unlawfully
intercepted communications, as well as their use as evidence "in
any trial, hearing, or other proceeding in or before any court,
grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the United States, a
State, or a political subdivision thereof." 18 U.S.C.
§§ 2511(1)(c), 2515.
"Intentional" as used in the context of Title III "means
more than that one voluntarily engaged in conduct or caused a
result." In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003)
(quoting S. Rep. No. 99–541, at 23 (1986), as reprinted in 1986
U.S.C.C.A.N. 3555, 3577). Instead, the "conduct or the causing
of the result must have been the person's conscious objective."
Id. (quoting S. Rep. No. 99–541, at 23). Thus "[a]n 'intentional'
state of mind means that one's state of mind is intentional as to
one's conduct or the result of one's conduct if such conduct or
result is one's conscious objective." Id. (quoting S. Rep. No.
99–541, at 23). Consequently, "[a]n act is not intentional if it
is the product of inadvertence or mistake." Id. (citing Sanders
pellucid Congress's desire to require that the unlawful interception be "intentional").
-14- v. Robert Bosch Corp., 38 F.3d 736, 742–43 (4th Cir. 1994) and
United States v. Townsend, 987 F.2d 927, 930 (2d Cir. 1993)). The
party seeking protection under § 2515 against the use or disclosure
of the unlawfully intercepted communications bears the burden of
proving that a particular communication was intercepted
intentionally in violation of Title III. See id. at 19.
C. Analysis
We are tasked with determining whether the magistrate
judge clearly erred in finding that Appellants met their burden of
proving that PSI's interception of Middlebrooks's extension after
her relocation to the third floor was intentional. According to
Appellants, the magistrate judge's finding of intent was supported
by the evidence on the record and the inferences drawn therefrom,
and thus was not clearly erroneous and should not have been
disturbed by the district court. We disagree.
To support his finding that PSI intended to continue
intercepting Middlebrooks's extension, the magistrate judge, in
essence, relied on the following facts: PSI started recording
Middlebrooks's extension intentionally while she worked in the
call center located on the second floor; PSI knew that it needed
to affirmatively remove the recording license if it no longer
wished to continue recording calls from that extension when it was
rewired to the third floor; and PSI failed to take affirmative
-15- steps to remove the license during the rewiring process. Based
on this evidence, the magistrate judge inferred that PSI intended
to continue recording calls on Middlebrooks's extension after her
promotion and relocation to the third floor because PSI "should
have known" that the recording would continue after the rewiring
unless it took affirmative steps to end the recordings.
The facts in the record, however, do not permit the
inference drawn by the magistrate judge that PSI intended to
continue the recordings after Middlebrooks was promoted and
relocated to a floor where telephone conversations were usually
not recorded.
Although a reviewing court may not "reverse the finding
of the trier of fact simply because it is convinced that it would
have decided the case differently," Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985), the deference owed to the
inferences made by a trier of fact is not limitless. In order for
the fact-finder's inferences to stand, they must be reasonable and
drawn from the evidence in the record. See United States v.
Espinoza, 490 F.3d 41, 46 (1st Cir. 2007).
Here, the inference of intent drawn by the magistrate
judge was not supported by the record. Although the magistrate
might have been right that PSI "should have known when it rewired
[Middlebrooks's] extension that her calls would continue to be
-16- recorded unless it acted to stop the practice," that PSI "should
have known" that the recordings would continue is not sufficient
to adequately establish the intent necessary to find a Title III
violation. See, e.g., United Sates v. Ford, 821 F.3d 63, 73
(1st Cir. 2016) (holding that enabling a jury to find mens rea on
a "should have known" basis would enable it to improperly "convict
one who was merely negligent in failing to know"). Perhaps PSI
acted negligently or even with gross negligence in failing to
remove the recording license, but neither negligence nor gross
negligence satisfies the intent element required to find a Title
III violation. See In re Pharmatrak, Inc. Privacy Litig.,
292 F. Supp. 2d 263, 267-68 (D. Mass. 2003) (noting that a theory
of negligence or gross negligence "is [not] sufficient to satisfy
the specific intent requirement under the EPCA").
Furthermore, the magistrate judge's finding of intent
was based in part on PSI's failure to proffer evidence excusing
its omission to remove the recording license on Middlebrooks's
extension after her promotion and relocation to the third floor.
See In re HIPAA Subpoena, No. 17-mc-91097, slip op. at 9-11 (noting
that PSI opted to "remain silent" about its omission). Yet, PSI
did not have to prove mistake or inadvertence on its part because
it did not bear the burden of proof. It was Appellants who needed
to prove that PSI intentionally continued recording Middlebrooks's
-17- calls after she moved offices. 7 See In re Pharmatrak, Inc.,
329 F.3d at 19.
Because of what PSI "should have known" and its decision
to "remain silent," the magistrate chose "between competing
hunches," and sided with Appellants' theory. The magistrate judge
clearly erred in so doing, as neither what PSI should have known
nor its failure to prove mistake or inadvertence were adequate
grounds to find intent on a mere "hunch." 8 Furthermore, the
record, read as a whole, undermines any inference supporting a
finding that PSI intentionally recorded calls on Middlebrooks's
extension once she became Manager of Program Development.
It is undisputed that PSI bought the recording licenses
with the intent to record calls made to and from the extensions
assigned to certain positions, such as Patient Service
7 We note that although the magistrate judge acknowledged at the motion hearing that Appellants bore the burden of proof, he then made some inconsistent statements in his opinion and order. See, e.g., In re HIPAA Subpoena, No. 17-mc-91097, slip op. at 9-10 (explaining how "even accepting that there may be a basis to reason that inadvertence or mistake led to the interception of Middlebrooks'[s] calls, the evidence before the Court does not plainly explain why PSI failed to terminate the recording license when rewiring Middlebrooks'[s] extension"). 8 We note that any inference as drawn by the magistrate from PSI's silence is undercut by the fact that PSI, as the target of the investigation, likely had little if any incentive to say anything that would undercut the position of its employees in attempting to quash the subpoena.
-18- Representatives, Patient Managers, and Assistant Patient Managers.
The evidence in the record is that when PSI first assigned the
recording license to Middlebrooks's extension, it did so because
she held the position of Program Manager, and not because of some
other ulterior motive. Middlebrooks was then transferred to the
third floor of PSI's offices when she was promoted to the position
of Manager of Program Development, and there is no evidence in the
record indicating that PSI regularly recorded the calls of other
employees in that position.
Appellants needed to prove not merely that PSI's actions
or omissions caused the continuing recording of calls on
Middlebrooks's extension, but rather that the continuing recording
was the result of PSI's "conscious objective"; that is, that PSI
did not remove the recording license because it had the intention
to continue recording her extension.9 See In re Pharmatrak, Inc.,
329 F.3d at 23 (holding that "intentional" for Title III purposes
means that it was the result of "the person's conscious
objective"). Nevertheless, Appellants have not set forth any
evidence showing that PSI was even aware of the recordings'
9 We note that in a case like this an inference of intent is more difficult to draw from a failure to remove a line from a group of recorded phones than it might have been had the line been added to a group of recorded phones.
-19- existence until after it was served with the subpoena.10 This lack
of evidence undermines the magistrate's finding that PSI
"intended" to continue recording Middlebrooks's calls after she
was promoted. See Tyger v. Precision Drilling Corp., No. 4:11-
CV-01913, 2018 WL 1744681, at *2 (M.D. Pa. Apr. 11, 2018) (holding
that plaintiffs failed to satisfy the "intent" element to a Title
III violation where testimony indicated that an audio recording
was the result of inadvertence because the defendant was never
aware that his camcorder had an audio recording function until he
was alerted to that fact by plaintiffs' counsel); see also Abraham
v. Cty. of Greenville, 237 F.3d 386, 392 (4th Cir. 2001) (holding
that intent to record the judges' calls could be inferred based on
"ample circumstantial evidence" put forth by plaintiffs, including
a confidential memorandum prepared by the county official who
decided to install the recording system explaining that the
plaintiff-judges' lines were being recorded). Here, although
perhaps PSI "should have known" that Middlebrooks's extension
would continue to be recorded after she was transferred to the
10 Appellants argue that because Grifasi, one of the few employees at PSI authorized to access the "Record and Evaluate" system, could see which extensions had been assigned recording licenses in the system, he must have seen that Middlebrooks's extension was still being recorded. Again, what Grifasi could have seen is not enough to support a finding that PSI intended to continue recording Middlebrooks's extension.
-20- third floor unless it affirmatively removed the license assigned
to said extension, Appellants have not proffered any proof
indicating that PSI did, in fact, know that the recording
continued. Nor is there any evidence in the record that PSI had
a motive to continue recording Middlebrooks's extension after her
promotion, from which it could be inferred that the continued
recording was the result of PSI's "conscious objective." In re
Pharmatrak, Inc., 329 F.3d at 23 (noting that, although there is
"authority suggesting that liability for intentionally engaging in
prohibited conduct does not turn on an assessment of the merit of
a party's motive," motive is not "entirely irrelevant in assessing
intent" because "[a]n interception may be more likely to be
intentional when it serves a party's self-interest to engage in
such conduct" (citations omitted)).
Based on the foregoing, we conclude that the magistrate
judge clearly erred in finding that Appellants met their burden of
proving that PSI's interception of Middlebrooks's extension after
her relocation to the third floor was intentional. The record
lacks evidence showing that PSI had the intent to continue
recording Middlebrooks's extension after her promotion, or a
motive to do so. Settling for one of the "competing hunches"
because PSI "should have known" that the recording would continue
or because the Government did not "plainly explain why PSI failed
-21- to terminate the recording license when rewiring Middlebrooks'[s]
extension" is not enough to support a finding that PSI had the
conscious objective to continue intercepting Middlebrooks's calls
after she was promoted and relocated to the third floor.
III. CONCLUSION
In light of the foregoing, we affirm the district court's
order reversing the magistrate judge's grant of Appellants' motion
to quash the subpoena duces tecum as to the recordings of
Middlebrooks's extension after she was relocated to the third floor
of PSI's offices.
Affirmed.
-22-