by Lonnie Burton

Attorney Donald York Evans and his client John Witherow, a Nevada state prisoner, filed a federal civil rights lawsuit challenging the monitoring of privileged phone calls between them. After lengthy proceedings the suit was dismissed.

The Nevada Department of Corrections (DOC) has a policy of initially screening attorney-client phone calls then occasionally checking in on the calls. The justification is to make sure the privileged status of the calls is not being abused to allow unmonitored communications with third parties or the passing of contraband information such as escape plans.

The defendants included three prison phone providers and DOC officials. The claims were numerous, including Fourth and Fourteenth Amendment due process violations and violations of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2251. The court dismissed Evans and the phone companies from the suit and granted defendants summary judgment on most of the remaining claims. A jury decided against Witherow on the remaining claim--whether the initial screening violated the ECPA. Witherow appealed.

The Ninth Circuit reversed, holding that the district court should have used the "normative inquiry" approach instead of the "reasonable expectation of privacy" approach when analyzing Witherow's Fourth Amendment claims. Using that approach, the district court held that the fact that Witherow and Evans knew about the monitoring did not destroy the "well-recognized" right of private client communications. "However, the legitimate penological interests of ensuring that the right to confidential attorney-client communications is not abused and that contraband information is not sent out of prison makes the practice of periodically 'checking in' on the calls of inmates after initial screening to ensure they are still privileged, i.e., that the attorney had not handed the telephone over to a non-attorney such as a family member or even a criminal confederate once the parties have become confident monitoring has ceased, constitutionally reasonable." The court noted there was no other means of achieving this goal. Therefore, on February 17, 2016, it dismissed the Fourth Amendment claim and rendered judgment in defendants' favor. See: Evans v. Skolnik, U. S. D. C. (D. Nev.), Case No. 3:08-cv-00353-RCJ-VPC.

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