by Casey J. Bastian
On March 21, 2021, an agreement was reached between Wisconsin’s Portage County and a class of plaintiffs consisting of current and former detainees at the county jail to settle claims that their privileged communication with their attorneys was unlawfully intercepted. Under the settlement, Defendants and their insurer agreed to establish a $90,000 fund to pay for damages, costs and attorney’s fees suffered by the class, plus a small award to its representative, Brett Lieberman.
He filed the suit in federal court for the Western District of Wisconsin almost three years earlier, on June 12, 2018, accusing jail officials of maintaining a practice of intercepting privileged communications.
The county Sheriff’s Office, which operates the jail, installed new phone system software in 2007. Designed by Securus Technologies, Inc., now a subsidiary of Aventiv Technologies, the system allows the jail to “store, access, listen to, and transmit the recordings of detainee phone calls,” according to Lieberman’s complaint. All calls made by detainees are monitored and recorded “unless the phone number being dialed had been designated as private.” The Public Defender’s Office was automatically designated as a private number.
Then Lieberman’s attorney received a CD from the county District Attorney (DA) in 2014—while Lieberman was being prosecuting on a reckless endangerment charge for which he was eventually convicted—and discovered it contained recordings of Lieberman’s conversations with his attorney.
The attorney notified the DA, yet it took a year for the jail’s Captain of Corrections, Corey Nelson, to notify the county bar association how private attorneys could have their numbers designated as private. Meanwhile, before October 2015, calls from detainees to their attorneys were “systematically recorded, monitored, stored, accessed, and listened to,” the complaint recalled.
The jail’s Inmate Orientation Handbook informed detainees that all calls were recorded and monitored, but it did not note an exception for attorney-client calls until a September 2014 update. Prior to that, attorneys were able to schedule confidential calls, but detainees were not advised of that option. It was after the handbook was updated, though, that the DA asked jail Sgt. Dale Boettcher to preserve Lieberman’s mail and any “phone calls that were not to or from his attorneys.” The jail forwarded the DA a CD of all the detainee’s recorded calls, a copy of which the DA then sent to Lieberman’s attorney, who discovered the snooping.
So Lieberman’s attorney provided the DA with his phone number in order to get it designated as private. The number was forwarded to Nelson, who asked Securus to designate the number as private. Yet the jail again recorded a privileged call and provided it to the DA, who once more forwarded a copy to Lieberman’s attorney. An inquiry revealed the obvious: Securus had failed to designate the number as private as requested.
With the aid of John Marrese and other attorneys from Hart McLaughlin & Eldridge in Chicago, Lieberman filed suit accusing the DA, Nelson and Boettcher, along with the Sheriff’s Office and other employees there, of violating detainees’ rights under the Fourth, Sixth and Fourteenth Amendments, as well as the state’s constitution and its Electronic Surveillance Act.
According to the DA’s affidavit, he “did not review the [CD of recordings] that was sent to defense counsel,” an omission he said “was [my] mistake”—raising the additional concern that had he first reviewed the CD and discovered the privileged calls, he would not have sent them to Lieberman’s counsel at all!
Nevertheless, the Court threw out Lieberman’s suit on February 1, 2020, saying the detainees “had notice that their calls were being recorded” from their jail handbook and “when an attorney asked for more privacy, defendants accommodated that request.” Detainees also “had other options for engaging in confidential communication with their lawyers,” the Court said, plus “none of the defendants listened to any attorney calls or otherwise used the recordings to harm the inmates.” See: Lieberman v. Portage Cty., 2020 U.S. Dist. LEXIS 30521 (W.D. Wis.).
Marrese turned then to the U.S. Court of Appeals for the Seventh Circuit. While the appeal was pending, the parties entered mediation and reached a settlement, which the Court then entered as its judgment in the case.
Under those terms, over 80 percent of the settlement was awarded to class counsel, $40,202.60 for fees and another $32,647.40 for costs. Liebermann received $5,077.16, and the remainder was divided between the other 156 plaintiffs in the class, each receiving approximately $77.39. The full $90,000 was paid by Portage County’s insurer, Wisconsin County Mutual Insurance Corporation. See: Lieberman v. Portage Cty., USDC (D. Wis.), Case No. 3:18-cv-00450.
Afterward Marrese said, “We’re pleased to bring some relief to jail detainees of Portage County and preserve their right of privileged communications with their attorneys.”
Additional source: Stevens Point Journal
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Related legal cases
Lieberman v. Portage Cty.
|Cite||USDC (D. Wis.), Case No. 3:18-cv-00450|
Lieberman v. Portage Cty.
|Cite||2020 U.S. Dist. LEXIS 30521 (W.D. Wis.)|