Monday, March 16, 2009

Living (and Suing) on a Prayer

The penultimate sentence in one of my recent posts was "Never underestimate the creativity of a plaintiff's lawyer and a desperate debtor." As if on cue, enter the City of Detroit's former mayor and leading debtor, Kwame Kilpatrick, and his attorney, Florida's well-known Willie Gary. [If you've been preoccupied during the last several years, there's a timeline of Kilpatrick's scandals here.]

On March 10, in a Mississippi circuit court, Gary and Kilpatrick sued SkyTel, reportedly for the nice round sum of $100 million, for allegedly violating the federal Electronic Stored Communications Act. The gist of the lawsuit, which can be viewed here, is that by releasing text messages between Kilpatrick and others, principally his former chief of staff, Christine Beatty, SkyTel invaded Kilpatrick's privacy and violated federal law.

Willie Gary has a record of getting big verdicts, but this lawsuit is ridiculous. Under the Detroit policy in effect at the time the text messages were sent -- a policy implemented by Kilpatrick himself -- any messages sent over city-owned phones/pagers/messaging devices are expressly not private and the property of the city.

These are standard provisions in the electronic media policies of any public institution or private corporation (at least those who have the foresight to retain The Wiz).

Here's the importance of that policy for Kwame's lawsuit: if the texts belong to the city, only the city can sue for their release (if such a lawsuit is even possible). And, since the city's policy stated that users of city-owned devices had no expectation of privacy in the emails or texts sent using those devices, I don't think Kilpatrick can even claim he is entitled to assert the city's rights or that he has derivative rights based on the city's contract with SkyTel.

These are theoretical questions, for the most part, because Kilpatrick's lawsuit does not assert that his rights are derivative in any way. The theory of the lawsuit is capsulized in paragraph 10 of the complaint, which alleges:

As part of its contract obligations, and because the pagers were for use both in pursuit of business for the City and for employees’ personal use, SkyTel had a duty to protect the privacy rights of these employees of the City. Defendant SkyTel carried or maintained the contents of the wire or electronic communications on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), subscribers or customers of such service solely for the purpose of providing storage or computer processing services to such subscribers or customers.

So, the theory goes, because the city allowed the pagers to be used for personal business, SkyTel is required to protect each user's private text messages, regardless of the facts that (1) SkyTel's contract is with the city, not with the individual users; and (2) Kwame's own policy contradicts his lawsuit.

The Kwame/Gary theory also directly contradicts other allegations in the lawsuit, e.g., the allegation in paragraph 35 that "SkyTel is not authorized to access the contents of any such communications for the purposes of providing any services other than storage or computer processing." If SkyTel cannot access the contents, how can it distinguish between public and private messages for the purpose of responding to subpoenas as authorized by federal law?

Moreover, there is no allegation that SkyTel ever did "access the contents" of the texts at issue. It is surely possible to respond to a subpoena for all messages between Christine Beatty and Kwame Kilpatrick without reading them.

Kilpatrick has been extraordinarily lucky during his public life. Twice elected mayor, he dodged numerous scandals and controversies until being tripped up by his own indiscretions and text messages. Even then, he was able to cut a good deal with the prosecutor and had a job waiting for him in Texas when he got out of jail. Will his luck continue to run with this lawsuit? I don't think so.

Predicting litigation results is risky. Ask Sharon McPhail, who predicted that Kilpatrick would not be charged with a crime in the text message scandal. This lawsuit against SkyTel looks like a last second Hail Mary pass, but if you've been living on a prayer, why not sue on one?

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