Wednesday, May 28, 2008

Illegal Wiretapping, Indeed

Glenn Greenwald's trial conduct found "unethical"

Glenn Greenwald is a self-made blogging phenomenon, for which you have to respect him, even though he is probably the single most obnoxious writer on the Internet. His prose style is a groaning Frankenstein of juvenile syntax -- Tourettic scare quotes, volume-11 hyperbole -- bolted onto sentences that have the grace of nose-diving zeppelins. And his ego is galactic.

On the other hand, Greenwald can be spot-on when he's taking down right-wing hypocrisy, such as here, and especially when mocking the office pantomime of masculinity performed by that doughy chorus of pundits led by Jonah Goldberg and James Taranto. He's also voluminous on the subject of Constitutional Law and its antagonist in the Bush Administration. I'm not able to judge these writings, but I trust them a lot more than his flatulent emanations on foreign policy, as Greenwald is a former Wachtell litigator. In particular, he's had a lot to say about the Bush Administration's extensive, illegal wiretapping.

Which is why I note with a sense of irony that during his pre-blogging career as a practicing lawyer, while he was defending the First Amendment rights of white supremacist Matthew Hale in a series of civil suits, Greenwald was found in court to have illegally recorded conversations he had with various of Hale's associates. I have no clue how to properly cite cases, but the document is entitled:


No. 00 C 2021


159 F. Supp. 2d 1116; 2001 U.S. Dist. LEXIS 13001

and in it we find the following

I. Background

On October 13, 2000, Defendants' counsel's telephone rang. [**3] To Defendant's counsel's apparent pleasure, Kenneth Dippold, one of Plaintiff's witnesses, was on the line. Dippold voluntarily called Defendants' counsel in New York from a location in Illinois to answer any questions regarding Dippold's involvement in the underlying litigation. Dippold had received a subpoena from Defendants' counsel earlier that day.

Defendants' counsel served the subpoena on Dippold immediately upon discovering his identity on October 7, 2000. At that time, Plaintiff identified Dippold as the sole witness to support the allegation that Hale encouraged Smith to engage in the July 1999 shooting spree. Before that date, Plaintiff [*551] had not identified a witness to support this allegation.

Seizing the opportunity, Defendants' counsel hit the record button and commenced surreptitiously taping the conversation with Dippold. The conversation lasted for some time, covering in detail Dippold's contacts with Hale, the WCOTC, and various other parties having an interest in the underlying litigation. Dippold never asked if Defendants' counsel was taping the conversation. Nor did Defendants' counsel make any representations to Dippold suggesting that the conversation was or [**4] was not being taped.

The existence of the tape remained undiscovered by Dippold and Plaintiff until Dippold's deposition approximately two months later. After three hours of questioning, and allegedly a few too many inconsistent statements, Defendants' counsel revealed that the October telephone conversation was surreptitiously taped. Because Defendants' counsel proceeded to use a transcript of the tape to impeach Dippold, Defendants' counsel immediately provided Plaintiff's counsel with a copy of the tape. Any work-product protection no longer applied.

Approximately one month later, Plaintiff discovered the existence of another tape. This tape pertained to a conversation between Defendants' counsel and Ian Sigel, another witness in the case. Similar to the circumstances surrounding Dippold's tape, Sigel was in Illinois at the time of the telephone conversation, while Defendants' counsel was in New York. Sigel had also received a subpoena from Defendants' counsel.

In view of Defendants' counsel's tactics, Plaintiff served a Fourth Request for the Production of Documents and Things on Defendant. Among other things, Plaintiff requested "any and all audio tapes and/or written transcripts [**5] reflecting any conversation(s) between [Defendants] and/or [Defendants] attorney(s) and any third-party referring or relating to the [underlying lawsuit]." (Pl.'s Consolidated Mem. Supp. Mot. Compel & Protective Order at 4.) Days later Defendants responded, asserting the work product doctrine and refusing to produce any tapes.


As it turned out, Plaintiff quickly determined that it was necessary to brief the issue. More tapes, in fact, existed. Moreover, Defendants' counsel refused to discontinue making additional tapes...

Greenwald and Hale lost both motions relating to Greenwald's misconduct, and lost again on appeal.

Plaintiff moved to compel disclosure of these tapes, arguing that this conduct was unethical and therefore vitiated any attorney work-product privilege that may have attached to these recordings, and sought a protective order prohibiting any further recordings. The magistrate judge granted both motions, finding defense counsel's conduct unethical under two separate rules: Local Rule 83.58.4(a)(4), prohibiting "dishonesty, fraud, deceit or misrepresentation;" and Local Rule 83.54.4, stating "a lawyer shall not … use methods of obtaining evidence that violate the legal rights of [another] person." [Emphasis mine]

After disclosure was eventually made, the elaborateness of Greenwald's deceit came to light:

A 52-page transcript of one conversation showed defendants' counsel steered the conversation by eliciting particular responses to detailed questions, leading to more detailed questions, to lure the witness into damning statements for later use.

This hardly raises to the level of a Constitutional violation of privacy by the Executive, but Greenwald is never so strident as he is when exposing what he perceives to be hypocrisy. I suppose, though, we wouldn't receive the bounty of our self-anointed protectors if they were encumbered by the lofty sense of ethics they bear down on others.


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