“Securus’ motion trivializes the importance of trust and confidence in the attorney-client relationship as well as the critical need for certainty that attorney-client communications will not be unlawfully intruded on by law enforcement or prosecutors,” attorney Robert L. Teel said in an email.

Prison Callers Defend Revamped Securus Recording Suit — By Bryan Koenig Law360, Washington (January 10, 2017, 1:59 PM EST)

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Prison phone users Monday stood by their class allegations that Securus Technologies Inc. recorded their calls without permission, arguing that the reasserted fraud and misrepresentation claims are detailed enough and that the telephone service provider is treading on already-decided ground.

Securus should not be allowed to again trim the fraud allegations after they were bolstered with specific details, said Juan Romero, Frank Tiscareno and Kenneth Elliott — two former San Diego prison inmates and a criminal defense attorney respectively. Nor should it be able to entirely dodge allegations that prison calls placed through the company were recorded and archived without caller knowledge, they said, because the court has already held that they have standing to sue.

“In continuing to argue that the facts alleged in the [second amended complaint] constitute a ‘bare procedural violation,’ defendant confuses apples (a bare procedural violation) with oranges (an enforceable substantive statutory right), and argues it does not really matter because they are both fruit,” the callers said. “Defendant is either willfully turning a blind eye to the difference between a bare procedural violation and an enforceable, substantive legal right (which constitutes an injury-in-fact), or is intentionally trying to bamboozle and confuse the issue.”

U.S. District Judge Jeffrey T. Miller has already rejected Securus’ stance that the evidence in the proposed class action failed to show that any recording took place and that the callers would be left without actionable injury and thus without standing to sue.

Where Securus said it found no recordings to, from or between the men, Judge Miller’s October ruling noted that the company did not swear off having “never recorded” any calls involving plaintiffs, but that “any potential recordings” would have been purged shortly after being made. That was enough for the judge to not toss the California Invasion of Privacy Act allegations.

On Monday, the callers argued that much of Securus’ current dismissal bid is simply trying to take another stab at the overall argument concerning their ability to sue, based on contentions that no harm was done in the alleged recording — the company is saying that any recordings never reached human ears, not unlike a tree falling in a forest without anyone around.

“Defendant presents nothing new to its argument against the court’s ruling, and plaintiffs have already addressed these arguments. First, plaintiffs have alleged the recordings were listened to,” the callers said in a footnote. “Second, plaintiffs have adequately pled they suffered injury and harm because, to use defendant’s analogy, if they had known trees would be falling all around them, they would not have paid to go into the forest at all.”

Additionally, the California Penal Code clearly makes it a crime to either listen to or record a call, the callers added.

“It does not require recording and listening to the recordings when imposing statutory criminal and civil liability,” they said.

While Judge Miller’s October ruling had largely left the case intact, he did dismiss the claims of fraud and misrepresentation for lack of specificity, along with a conversion claim.

The October ruling left no room to reassert the conversion allegation but did allow a repleading of the other claims, which the callers did in early November. Securus took aim at those fraud and misrepresentation claims later that month, contending they are “still deficient.” But the callers hit back Monday, saying it does not matter that claims about calls were not all made to them directly, according to the reply brief, which stood by the sufficiency of the second amended complaint.

“Plaintiffs’ SAC specifically alleges defendant made actionable affirmative misrepresentations when it falsely and misleadingly represented to the sheriff it would not record calls to and from phone numbers on the ‘Do Not Record’ list,” the callers said. “The SAC also alleges defendant made actionable affirmative misrepresentations when it pledged to its customers, inmates, friends, family, law enforcement, and the corrections community (again, including without limitation to the sheriff) that it understood confidentiality of such calls is critical.”

Securus also promised to follow all relevant laws, they said.

Counsel for Securus declined to comment Tuesday. An attorney for the callers blasted the dismissal bid in a statement provided Wednesday to Law360.

“Securus’ motion trivializes the importance of trust and confidence in the attorney-client relationship as well as the critical need for certainty that attorney-client communications will not be unlawfully intruded on by law enforcement or prosecutors,” attorney Robert L. Teel said in an email.

The called had filed suit at the end of May, looking to include in their class all inmates and attorneys who used Securus phone services from June 2008 forward, a number of plaintiffs that may well be in the thousands. They claim that calls were recorded at least between 2013 and 2014, to be shared with law enforcement.

According to the complaint, Securus bills itself as the United States’ largest provider of inmate communications, serving “thousands” of prison facilities and more than 1 million inmates across at least 45 states, processing in excess of a million phone calls a day.

Inmates are entitled to privacy on those calls, especially when talking with their lawyers, the plaintiffs claim, arguing that at no point are attorneys or their clients notified that their communications might be recorded. Rather, since at least 2013, those callers on either end of the line only heard a prompt from Securus discussing the company’s marketing information, according to the complaint, and not any warning about monitoring or recording of their discussions.

The callers are represented by Ronald A. Marron, Alexis Wood, Kas Gallucci and William B. Richards Jr. of the Law Offices of Ronald A. Marron and Robert L. Teel of the Law Office Of Robert L. Teel.

Securus is represented by Adam R. Fox, Marisol C. Mork, Chassica Soo, Gretchen A. Ramos and Tania L Rice of Squire Patton Boggs LLP.

The case is Romero et al. v. Securus Technologies Inc., case number 3:16-cv-01283, in the U.S. District Court for the Southern District of California.

–Additional reporting by Kali Hays and Kat Sieniuc. Editing by Edrienne Su.

Update: The story has been updated with a comment from the callers’ counsel.

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