Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Council on American-Islamic Relations Action Network, Inc. v. Gaubatz

United States District Court, D. Columbia.

March 27, 2014

COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., et al., Plaintiffs,
v.
PAUL DAVID GAUBATZ, et al., Defendants

Page 238

[Copyrighted Material Omitted]

Page 239

[Copyrighted Material Omitted]

Page 240

[Copyrighted Material Omitted]

Page 241

For CAIR-FOUNDATION, INC., Plaintiff: Gadeir Abbas, LEAD ATTORNEY, PRO HAC VICE, Nina Kraut, LEAD ATTORNEY, Munia Jabbar, COUNCIL ON AMERICAN-ISLAMIC RELATIONS, Washington, DC.

For COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., Plaintiff: Gadeir Abbas, LEAD ATTORNEY, PRO HAC VICE, Nina Kraut, LEAD ATTORNEY, Munia Jabbar, COUNCIL ON AMERICAN-ISLAMIC RELATIONS, Washington, DC.

For PAUL DAVID GAUBATZ, Defendant: Joseph William Eshelman, III, LEAD ATTORNEY, BUTZEL LONG, Washington, DC; Daniel Horowitz, Lafayette, CA; Martin Garbus, PRO HAC VICE, EATON & VAN WINKLE LLP, New York, NY.

For CHRIS GAUBATZ, also known as DAVID MARSHALL, Defendant: Joseph William Eshelman, III, LEAD ATTORNEY, BUTZEL LONG, Washington, DC; Daniel Horowitz, Lafayette, CA.

For CENTER FOR SECURITY POLICY, INC., CHRISTINE BRIM, ADAM SAVIT, SARAH PAVLIS, Defendants: David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center, Washington, D.C.; J. Thomas Smith, PRO HAC VICE, J. THOMAS SMITH ATTORNEY AT LAW, Franklin, TN; Robert J. Muise, American Freedom Law Center, Ann Arbor, MI.

For DAVID YERUSHALMI, Defendant: David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center, Washington, D.C.; Robert J. Muise, American Freedom Law Center, Ann Arbor, MI.

For SOCIETY OF AMERICANS FOR NATIONAL EXISTENCE, Defendant: David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center, Washington, D.C.; J. Thomas Smith, PRO HAC VICE, J. THOMAS SMITH ATTORNEY AT LAW, Franklin, TN; Robert J. Muise, PRO HAC VICE, American Freedom Law Center, Ann Arbor, MI.

For UNITED STATES OF AMERICA, Interested Party: Lynn E. Haaland, U.S. ATTORNEY'S OFFICE, National Security Division, Washington, DC.

Page 242

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

Plaintiffs Council on American-Islamic Relations Action Network, Inc. (" CAIR-AN" ) and CAIR-Foundation, Inc. (" CAIR-F" ) bring this action against Chris Gaubatz, his father Paul David Gaubatz (" David Gaubatz" ), the Center for Security Policy, Inc. (" CSP" ) and three of its employees, Christine Brim, Adam Savit, and Sarah Pavlis, the Society of Americans for National Existence (" SANE" ), and David Yerushalmi. Plaintiffs allege that Defendants conceived and carried out a scheme to place Chris Gaubatz in an internship with Plaintiffs under an assumed identity, which allowed him to remove and copy thousands of Plaintiffs' internal documents and to record private conversations involving Plaintiffs' employees without consent or authorization. In this action, Plaintiffs seek relief under the Federal Wiretap Act, 18 U.S.C. § § 2510-2522, the District of Columbia analog (the " D.C. Wiretap Act" ), D.C. Code § § 23-541-23-556, the Stored Communications Act, 18 U.S.C. § § 2701-2712, and the common law of the District of Columbia.[1] Presently before the Court are Defendants' [154] Motion for Summary Judgment and Plaintiff CAIR-F's [156] Motion for Partial Summary Judgment. Upon consideration of the parties' submissions,[2] the applicable

Page 243

authorities, and the entire record, the Court shall DENY Plaintiff CAIR-F's [156] Motion for Partial Summary Judgment, and GRANT IN PART and DENY IN PART Defendants' [154] Motion for Summary Judgment. With respect to Plaintiffs' Wiretap Act claims (Count I), the Defendants' motion is GRANTED as to: (1) claims by Plaintiff CAIR-AN; (2) Plaintiff CAIR-F's claims for use and disclosure liability against Defendants Savit, Pavlis, SANE, and Yerushalmi; (3) Plaintiff CAIR-F's claims for procurement liability against Defendants Savit and Pavlis; (4) Plaintiff CAIR-F's claims for conspiring and aiding and abetting liability against all Defendants; and (5) Plaintiff CAIR-F's respondeat superior claims against Defendants Savit, Pavlis, and SANE. With respect to Count I, Defendants' motion is DENIED as to: (1) Plaintiff CAIR-F's claims against Chris Gaubatz; (2) Plaintiff CAIR-F's claims for use and disclosure liability against Defendants David Gaubatz, CSP, and Brim; (3) Plaintiff CAIR-F's claims for procurement liability against Defendants David Gaubatz, CSP, Brim, SANE, and Yerushalmi; and (4) Plaintiff CAIR-F's respondeat superior claims against Defendants David Gaubatz, CSP, Brim, and Yerushalmi. With respect to Plaintiffs' Stored Communications Act claims (Count II), Defendants' motion is GRANTED as to: (1) claims by Plaintiff CAIR-AN; (2) Plaintiff CAIR-F's claims for conspiring and aiding and abetting liability against all Defendants; (3) Plaintiff CAIR-F's respondeat superior claims against Defendants Savit, Pavlis, and SANE. With respect to Count II, Defendants' motion is DENIED as to: (1) Plaintiff CAIR-F's claims against Chris Gaubatz; and (2) Plaintiff CAIR-F's respondeat superior claims against Defendants David Gaubatz, CSP, Brim, and Yerushalmi. Defendants' motion is GRANTED with respect to Plaintiffs' claims for breach of contract (Count V) and tortious interference with contract (Count VI). Defendants' motion is DENIED WITHOUT PREJUDICE as to all of Plaintiffs' remaining claims. The parties shall submit additional briefing as to these claims as set out in this Opinion and the accompanying Order.

I. BACKGROUND

A. Factual Background

Plaintiff Council on American-Islamic Relations Action Network, Inc. (" CAIR-AN" ) is a self-described Muslim advocacy group with a mission that includes enhancing the understanding of Islam and promoting a positive image of Muslims in the United States. TAC ¶ 10. Plaintiff Council on American-Islamic Relations Foundation (" CAIR-F" ) is an organization related to CAIR-AN that was created on February 15, 2005. Defs.' Facts ¶ 10. Although Plaintiff CAIR-AN was initially named Council on American-Islamic Relations, Inc., id. ¶ 6, CAIR-AN has used the name CAIR as its de facto public name since its' founding. Id. " CAIR" is not a registered trade name or otherwise legal d/b/a in the District of Columbia. Id. ¶ 7. On June 15, 2007, CAIR-AN officially changed its name from Council on American-Islamic Relations, Inc. to its current name Council on American-Islamic Relations Action Network, Inc. Id. ¶ 8. CAIR-AN owns the real property at 453 New Jersey Avenue SE, Washington, DC, the location of Plaintiffs' offices at issue in this suit. Id. ¶ 11. As best as the Court can understand, CAIR-F occupies the offices as a tenant by virtue of an unwritten agreement. Id. ¶ 12.[3]

Page 244

Defendant Center for Security Policy, Inc. (" CSP" ) is an IRC § 501(c)(3) non-profit, Washington, D.C. based think tank founded in 1988 by Frank Gaffney. Id. ¶ 1. Defendant Christine Brim is currently the chief operating officer of CSP. Pls.' Facts ¶ 3. CSP believes CAIR (the public term apparently used to refer to CAIR-AN and CAIR-F) to be a Muslim Brotherhood front group operating in the United States. Id. ¶ 6. CSP often focuses its efforts on CAIR because it regards CAIR as an organization that is " hostile to American security interests." Id. ¶ 7.

In late 2007 and early 2008, Defendant CSP initiated a documentary film project, referred to by Defendants as the " CAIR Documentary Film Project." Defs.' Facts ¶ 29. Defendants describe the film as a study of Islamism and organizations linked to the Muslim Brotherhood in the United States, with a particular emphasis on Plaintiffs. Id. ¶ ¶ 29, 31. The parties agree that the purpose of the documentary was in part to portray CSP's beliefs about CAIR and the Muslim Brotherhood in America. Pls.' Facts ¶ 15. CSP gave the project a working title of " CAIR Film Project" and Gaffney described the project as " an effort to make a film about the Council on American-Islamic Relations." Id. ¶ 17; Pls.' Ex. 7 (Gaffney Dep.) at 106:12-16.

In order to produce this documentary, CSP and non-party Manifold Productions created Publius Productions, LLC, an entity in which both companies had a 50 percent ownership interest. Defs.' Facts ¶ 38. Defendants state that pursuant to this agreement, Manifold would act as the producer of the documentary and CSP would act primarily as its financier. Id. Internally, Publius referred to the CAIR Documentary Film Project as a " film proposal" called " Islam and America." Id. ¶ 40.

Defendants state that CSP conceived of and proposed the film as a series of interviews with individuals in the national security field relating to the relationship between the Muslim Brotherhood and CAIR-AN. Id. ¶ 30. In order to provide background video to air alongside these interviews, Defendants state that they planned for the proposed film to include " B-roll" video of Plaintiffs and other organizations Defendants believed to be affiliated with the Muslim Brotherhood. Id. B-roll is a term in film production for " general imagery" or more specifically " visuals which support the audio that's gathered in an interview." Id. ¶ 33.

Defendants state that in order to obtain this B-roll, CSP contacted another organization, Defendant Society of Americans for National Existence (" SANE" ). Id. ¶ 42. SANE is a nonprofit organization founded by, among others, Defendant David Yerushalmi and his wife. Pls.' Facts ¶ 10. CSP reached out to SANE though it's then-president Yerushalmi, who also served at this time as general counsel to CSP. Defs.' Facts ¶ 42.

Defendant SANE, through Yerushalmi, recommended Defendant David Gaubatz to Defendant CSP to conduct " field research" for the film. Id. ¶ 44. David Gaubatz had an ongoing contractual relationship with SANE to conduct field research for an unrelated project entitled " Mapping Sharia." Id. ¶ 43-44. Apparently because of this pre-existing relationship, CSP, SANE, and David Gaubatz decided that SANE would contract with David Gaubatz to provide, according to Defendants, " the field

Page 245

research services required to obtain the B-roll for the CAIR Documentary Film Project." Id. ¶ 47. Defendant SANE also entered into a contract with Publius " to provide researchers to obtain B-roll" , in effect creating a relationship between Publius and David Gaubatz. Id. ¶ 48. Defendants state that all parties understood that SANE was acting as a contractual intermediary and that all funding to pay David Gaubatz would be paid by CSP, either through Publius or directly from CSP. Id. ¶ 52. In March 2008, Manifold terminated its involvement in the CAIR Documentary Film Project. Id. ¶ 53. At this point, CSP became the sole operator of Publius. Id. ¶ 54.

As part of the film proposal, CSP hoped to gather video footage from inside Plaintiffs' office. Pls.' Facts ¶ 18. Prior to entering into these contracts, Frank Gaffney and David Gaubatz discussed Gaubatz's ability to obtain B-roll from inside CAIR offices. Id. ¶ 25. Gaffney and Gaubatz also discussed David Gaubatz hiring individuals who would volunteer to work as interns in CAIR offices and obtain film for the project. Id. According to Defendants, in mid-March 2008, Publius, David Gaubatz, and CSP decided that David Gaubatz would employ, train, and supervise researchers to volunteer at offices affiliated with Plaintiff CAIR-AN or at CAIR-AN itself, and use an audio-video recorder in an attempt to capture B-roll for the documentary film proposal. Defs.' Facts ¶ 57.

Defendants state that David Gaubatz was responsible for all aspects of obtaining the B-roll, including employing the researchers, training them in how they were to obtain volunteer positions at Plaintiffs' offices, and supervising the researchers during their volunteer internships. Id. ¶ 122. However, Defendants concede that CSP understood that it was paying David Gaubatz to identify, train, and supervise interns, and to instruct them on how to covertly obtain audio/video recordings from inside Plaintiffs' offices. Pls.' Facts ¶ 40. CSP further understood that these interns would be wearing inconspicuous audio/video recorders as part of their conduct while interning at CAIR offices. Id. ¶ 38. Defendants state that while Publius or CSP could ultimately reject a proposed researcher, the researchers would be David Gaubatz's employees whom he would choose. Defs.' Facts ¶ 122. Defendants state that David Gaubatz supervised and managed the day-to-day work relating to the researchers he employed to volunteer at Plaintiffs' offices. Id. ¶ 127. Defendants state that CSP had no day-to-day involvement in the work supervised by David Gaubatz and had no substantive contact with the researchers during the volunteer internships at Plaintiffs' offices. Id. ¶ 128. Publius employees did play a role in the decision as to which camera gear to purchase for use in " undercover filming," and in training one of the researchers in how to use the video camera. Pls.' Facts ¶ ¶ 33-35.

Defendants state that the contracts among CSP, SANE, and David Gaubatz expressly and substantively created independent contractor relationships between CSP and SANE, and SANE and David Gaubatz, respectively. Defs.' Facts ¶ ¶ 49, 50. Plaintiffs dispute this description of the relationship, pointing to statements by David Gaubatz in which he appears to state that CSP and Yerushalmi had the power to direct him on how to perform the tasks that would lead to the acquisition of audio and video recordings from Plaintiffs' offices. Pls.' Facts ¶ 28 (citing Pls.' Ex. 5 (David Gaubatz Dep.) at 77:24-78:3). See also Pls.' Ex. 5 at 72:13-14 (David Gaubatz describing Yerushalmi as his " supervisor" ). Plaintiffs further dispute the role of SANE, pointing to a March 2008 agreement

Page 246

between Publius and SANE for SANE to provide a team of " researchers" to covertly enter CAIR and create audio-video recordings for a documentary. Id. ¶ 20 (citing Pls.' Ex. 26 (Publius-SANE Agreement) at 9). Defendants state that SANE had no knowledge that the project would require researchers to enter Plaintiffs' offices and SANE had no knowledge that the project would require researchers to obtain B-roll from inside Plaintiffs' offices. Defs.' Resp. Stmt. ¶ 20. Rather, Defendants state that SANE simply contracted to provide researchers to Publius via its contract with David Gaubatz, who would actually hire, train, and supervise the researchers to obtain B-roll. Defendants state that SANE's only role in the CAIR Documentary Film Project after the execution of these contracts was to transfer all funding received from Publius to David Gaubatz. Defs.' Facts ¶ 52.

In addition, the parties dispute the motivations for using interns to obtain B-roll from inside Plaintiffs' offices. Defendants state that the purpose of the B-roll was cinematic, and not investigative. Id. ¶ 35. Defendants state that they did not plan to expose Plaintiffs' confidences, secrets, or proprietary information. Id. " Specifically, the B-roll of a volunteer in Plaintiffs' offices was to capture background and context of the broader examination of the Muslim Brotherhood's operation in the U.S." Id. Defendants state that the purpose of wearing the inconspicuous button camera was so that the audio-video recordings, which would serve as B-roll, would capture the " natural life" of an intern at CAIR National and that the natural quality of the B-roll would be lost if the subjects of the recording knew they were being recorded. Plaintiffs disagree, stating that Defendants acted with an investigative purpose, and that the button camera was used for " undercover filming" of Plaintiffs in order to obtain secret, confidential, or proprietary information regarding Plaintiffs' offices. They point to statements that Chris Gaubatz used " clandestine camera gear" during his internship in order to record footage that would not have otherwise been revealed " openly." Pls.' Facts ¶ 36. Plaintiffs also point to statements that CSP believed that CAIR would not approve or enable them to openly obtain B-roll for their film project if they knew of its intentions with the proposal. Id.

CSP, Publius, and David Gaubatz first decided to obtain B-roll of an intern volunteering inside the offices of an affiliate of Plaintiffs, referred to as CAIR MD/VA, located in Herndon, Virginia. Defs.' Facts ¶ 32. This intern was Defendant Chris Gaubatz, David Gaubatz's son. Id. Defendant Yerushalmi states that in preparation for this internship, he advised David Gaubatz of what he believed to be the circumstances under which the use of a recording device in the CAIR MD/VA offices would be legally permissible. Id. ¶ ¶ 133, 134.

Chris Gaubatz began his volunteer work at the CAIR MD/VA offices in Herndon, Virginia in approximately late March 2008. Id. ¶ 60. Chris Gaubatz made audio-video recordings while interning at CAIR MD/VA by using an inconspicuous button camera. Id. ¶ 57. He also removed documents from the CAIR MD/VA offices. Id. ¶ 76. Plaintiffs have stipulated that no audio recordings made by Chris Gaubatz at CAIR MD/VA are a basis for any of their claims against Defendants. Id. ¶ 78. Further, Plaintiffs have expressly stipulated that Chris Gaubatz's removal of documents from the CAIR MD/VA offices are not the basis for any of their claims against Defendants. Id. ¶ 79. During this internship, at the request of David Gaubatz, David Yerushalmi provided legal advice to David Gaubatz regarding the circumstances

Page 247

under which he believed Chris Gaubatz could legally remove documents from the CAIR MD/VA offices. Id. ¶ 135.

After the CAIR MD/VA offices closed down, its former staff recommended to Chris Gaubatz and CAIR-F that Chris Gaubatz volunteer at Plaintiffs' offices as an unpaid intern. Id. ¶ 81. Chris Gaubatz informed his father about this opportunity and David Gaubatz instructed him to apply for the position as a volunteer intern. Id. ¶ 111.

Subsequently, Chris Gaubatz presented himself to CAIR's national office located in Washington, D.C. as an applicant for a volunteer intern position. Id. ¶ 108. In applying, Chris Gaubatz used the alias " David Marshall" which he had used earlier at CAIR MD/VA. Id. ¶ 112. Defendants state that Chris Gaubatz used this alias as a security measure so that Plaintiffs would not suspect that he was related to David Gaubatz, who was known to Plaintiffs as a critic of the CAIR organizations. Id. ¶ 113. Defendants state that the decision to use an alias was David Gaubatz's idea. Id. ¶ 131. Defendant Yerushalmi states that, as part of his responsibilities to provide legal advice regarding the CAIR Documentary Film Project, he advised David Gaubatz that there was no material legal risk to Chris Gaubatz using an alias if he (1) did not present false documentation, (2) did not accept payment or out-of-pocket expenses for his work, (3) conducted himself legally in performing his duties, and (4) had no intent to violate laws, breach agreements, or breach duties incumbent upon him. Id. ¶ 132.

Chris Gaubatz also sent an e-mail " resume" to Plaintiffs' in-house counsel, Nadhira Al-Khalili, which contained additional untrue information, namely that he was attending Ferrum College and that he had worked in a family-owned construction business. Id. ¶ 114. Defendants state that the CSP Defendants, SANE, and Yerushalmi were not aware that Chris had provided Plaintiffs this additional information. Id.

Pursuant to his agreement with CSP, David Gaubatz hired three additional researchers to pose as interns in Plaintiffs' offices: Charity Zhe, Stephanie Creswell, Daniel Ryder. P51. David Gaubatz notified CSP of his intent to hire these researchers. Pls.' Facts ¶ 52. David Gaubatz directed the researchers to appear Muslim as part of their internship, instructing Chris Gaubatz to grow a beard and identify himself as Muslim, id. ¶ 55, and directing Zhe and Creswell to wear hijabs -- the traditional scarf worn by Muslim women to cover their hair, id. ¶ 58.

On or about June 16, 2008, Chris Gaubatz began his volunteer internship at Plaintiffs' offices. Defs.' Facts ¶ 85. Chris Gaubatz did not indicate to any staff member that he was wearing a button camera and recording video and audio during his internship. Pls.' Facts ¶ 66. Over the course of his internship, Chris Gaubatz disseminated the covert recordings he made at Plaintiffs' offices to David Gaubatz. Id. ¶ 86. Chris Gaubatz and David Gaubatz also disseminated the recordings made at Plaintiffs' office to Defendants CSP and Christine Brim. Id. ¶ 87. In addition, Chris Gaubatz and David Gaubatz disseminated email summaries of Chris Gaubatz's activities as an intern to Christine Brim pursuant to the CAIR Documentary Film Project. Id. ¶ 89.

The parties dispute the role of Christine Brim in the CAIR Documentary Film Project. Defendants point out that at the start of the Project, Brim was a contract employee at Defendant CSP. Id. ¶ 177. In approximately August 2008, Brim became a full-time employee of CSP with the title of senior vice president. Id. Since approximately April 2010, Brim has served

Page 248

as chief operating officer of CSP. Id. Brim's involvement with the CAIR Documentary Film Project as a contract employee, Defendants state, was limited to administrative work to coordinate the receipt of the audio-video recordings from the Gaubatz Defendants, to receive oral and written reports from David Gaubatz, and to be a liaison between David Gaubatz and Brim's supervisors at CSP. Id. ¶ 178. Brim was not responsible for assessing the audio-video recordings or the daily reports. Rather, according to Defendants, her role was only to receive them, make certain that the audio-video files had recordings on them, and to make copies as needed by her supervisors. Id. ¶ 182. Plaintiffs dispute that this was Brim's only role, pointing to David Gaubatz's statement in his deposition that he was approached by Christine Brim and David Yerushalmi with a proposal to hire individuals to obtain audio video recordings from Plaintiffs' offices. Pls.' Facts ¶ 2 (citing Pls.' Ex. 5 at 76:12-15). In addition, Plaintiffs note that Christine Brim disseminated a compilation of covert videos Chris Gaubatz took at Plaintiffs' offices to third party Joseph Farah and representatives of World Net Daily. Defs.' Facts ¶ 164, 165. At the very least, the parties do not dispute that Christine Brim knew that David Gaubatz's researchers were going to make audio-video recordings at Plaintiffs' offices. Pls.' Facts ¶ 49.

CSP paid SANE a total of $103,865 in 2008 with the expectation that the money would go from SANE to David Gaubatz as compensation for his work obtaining audio/video recordings from Plaintiffs' office. Id. ¶ 41. David Gaubatz understood that CSP was paying him to obtain audio/video recordings from inside Plaintiffs' office. Id. ¶ 42. Pursuant to its agreement with David Gaubatz, CSP expected delivery of the recordings his researchers obtained from CAIR's office. Id. ¶ 43. According to Defendants, sometime between August 21, 2008 and September 15, 2008, CSP entered into a contract directly with David Gaubatz to continue his services to produce field researchers to obtain B-roll from Plaintiffs' Offices. Defs.' Facts ¶ 55.

During Chris Gaubautz's internship at Plaintiffs' Offices, his direct supervisor was Raabia Wazir. Id. ¶ 86. Raabia Wazir was the CAIR-F employee responsible for overall supervision of interns. Id. ¶ 87. On his first formal day of his internship, Chris Gaubatz met with Wazir for orientation, id. ¶ 89, and she presented him with what she described as a confidentiality agreement for him to sign. Id. ¶ 90. When Chris Gaubatz asked if he should sign it then, Wazir told him to " read it on your own time." Id. Chris Gaubatz states that he never read or signed the purported confidentiality agreement and Plaintiffs have not produce a signed version to contradict this statement. Id. ¶ 95.

Chris Gaubatz further states that he never orally agreed to be subject to any form of confidentiality. Id. Plaintiffs dispute this statement noting that Chris Gaubatz discussed a nondisclosure agreement in a recorded telephone conversation with a representative of World Net Daily, implying that he understood himself to be bound by a confidentiality agreement.[4]

Page 249

Pls.' Resp. Stmt. ¶ 95 (citing Pls.' Ex. 37 (Recorded Telephone Conversation of Chris Gaubatz)). Aside from this confidentiality agreement, Plaintiffs do not dispute that no one at Plaintiffs' offices provided Chris Gaubatz with a manual or written or oral set of rules, policies, or procedures relating to the existence of, or the treatment of confidential, proprietary, or personal information. Defs.' Facts ¶ 100. Of the 24 volunteer interns working at Plaintiffs' offices during the time period relevant to this litigation, Plaintiffs could only produce 13 signed confidentiality agreements. Id. ¶ ¶ 103, 104.

The parties disagree as to whether Chris Gaubatz was ever explicitly provided confidential, proprietary, or private information during his internship at Plaintiffs' office. Defendants state that at no time did Wazir or anyone at Plaintiffs' offices ever inform Chris Gaubatz that he was being provided confidential, proprietary, or private information. Id. ¶ 101. Plaintiffs state that Chris Gaubatz was given access to confidential, proprietary, and trade secret information about Plaintiffs by CAIR-F employees as part of his internship, specifically sensitive lists of mosque contacts, as well as access to information about CAIR's legislative advocacy strategies and its personnel. Pls.' Facts ¶ ¶ 73-75. Plaintiffs also state that Chris Gaubatz recorded CAIR discussions about sensitive and confidential matters with the button camera. Id. ¶ 105. As support for this position, Plaintiffs point to videos recorded by Chris Gaubatz which discuss plans for non-public meetings between members of Plaintiffs' Executive Board with various imams and other mosque leaders in the region. Pls.' Ex. 1 (Recorded Videos) at June 16, 2008, 2:38:59. In addition, the videos also discuss a mosque database containing research and contacts at local mosques. One of these videos records another intern on the phone conducting a survey of a mosque as part of CAIR's mosque survey research project. Id. at July 14, 2008, 35:00. At the close of the interview, he states " [t]his information is confidential and it will not be shared with anyone." Id.

Regarding the role of the other Defendants in this matter, Defendants also state that based upon the information provided to them from David Gaubatz and from the audio-video recordings provided to CSP, the CSP Defendants, Yerushalmi, and SANE had no knowledge of any fiduciary duty owed to Plaintiffs by Chris Gaubatz. Defs.' Facts ¶ 145. These Defendants further state that they did not have knowledge of any statutory, contractual, or common law duty of confidentiality or non-disclosure owed to Plaintiffs by Chris Gaubatz. Id. ¶ 144. In response, Plaintiffs state and Defendants do not dispute that

Page 250

CSP knew that Chris Gaubatz's duties at Plaintiffs' offices were " no different from any other intern," and that Chris Gaubatz was instructed to, and did, follow instructions from staff during his internship. Pls.' Facts ¶ 71.

Apparently in his capacity as CSP's General Counsel, Defendant Yerushalmi provided legal advice to David Gaubatz regarding various aspects of the CAIR Documentary Film Project. Defs.' Facts ¶ 130. Yerushalmi knew that Chris Gaubatz was wearing an inconspicuous device to make audio-video recordings at CAIR. Pls.' Facts ¶ 48. Yerushalmi states that he advised David Gaubatz as to whether information identified by Chris Gaubatz at Plaintiffs' offices amounted to evidence of tax fraud by Plaintiffs. Defs.' Facts ¶ 136. Yerushalmi also states that he advised David Gaubatz that Chris Gaubatz should not remove documents from a network, shared server or e-mail server. Id. ¶ 137.

Defendants state that Chris Gaubatz never recorded conversations that took place behind closed doors. Id. ¶ 154. Defendants also state that Chris Gaubatz was physically and visually present and a party to all conversations he recorded at Plaintiffs' offices. Id. ¶ 162. Plaintiffs disagree, pointing to videos in which Chris Gaubatz used his button camera to record conversations at CAIR in which he was not participating or was not visible to the speakers. Pls.' Facts ¶ 81. For example, in a section of the recording made on August 7, 2008, Chris Gaubatz appears to stand behind a speaker apparently involved in a telephone conversation. See Pl.'s Ex. 1 at August 7, 2008, 01:21:40-01:22:05. This speaker has his back turned to Chris Gaubatz. Defendants state that in all the recorded conversations, Chris Gaubatz was standing nearby, in plain sight, and the conversations were taking place such that Chris and others could hear the conversation. Defs.' Resp. Stmt. ¶ 81. Defendants also note that none of the remaining Defendants had an expectation that Chris Gaubatz would not be present and a party to the conversations recorded. Defs.' Facts ¶ 163.

At various points during his internship, Chris Gaubatz was asked to shred documents by Wazir. Id. ¶ 155. Defendants state that Chris Gaubatz did not take any documents from locations in Plaintiffs' offices to which he was not given open and unfettered access and authority. Id. ¶ 156. Defendants state that Chris Gaubatz never removed documents from a shared drive or e-mail server. Id. ¶ 154. Plaintiffs dispute this assertion, stating that based on their review, Chris Gaubatz removed documents that could have only come from shared folders on their network drive. Defs.' Ex. A., Ex. 3 (Saylor Dep.) at 143:19-144:5. Defendants also point to evidence that the CAIR Documentary Film Project did not contemplate or require the taking of documents from Plaintiffs' offices. Defs.' Facts ¶ 166.

On or about September 3, 2008, upon the completion of his volunteer internship, Chris Gaubatz received a " Certificate of Completion" from " CAIR" for successfully fulfilling his duties as a volunteer intern. Id. ¶ 116. On February 9, 2009, after all field work had ended on the CAIR Documentary Film Project and after Chris Gaubatz had terminated his internship at Plaintiffs' offices, CSP entered into a contract with Chris Gaubatz to review potential B-roll audio-video recordings he obtained from the CAIR MD/VA offices and Plaintiffs' Offices, assess them, and log them in some coherent fashion. Id. ¶ 56. Christine Brim supervised Chris Gaubatz in this work. Id. ¶ 187.

B. Procedural Background

CAIR-AN filed its original Complaint on October 29, 2009, naming as Defendants

Page 251

Chris and David Gaubatz and ten John and Jane Does whose identities were then unknown but who were alleged to have participated in and benefitted from the activities alleged in the Complaint. See Compl., ECF No. [1], ¶ ¶ 12-14. CAIR-AN asserted a single claim under the Stored Communications Act and common law claims for conversion, breach of fiduciary duty, breach of contract, and trespass. See id. ¶ ¶ 49-77.

Contemporaneous with the filing of the Complaint, CAIR-AN moved for a temporary restraining order and a preliminary injunction. See Mem. in Supp. of Pl.'s Mot. for a TRO & Prelim. Inj., ECF No. [2-1]. On November 2, 2009, after repeated efforts to contact the Gaubatz Defendants proved fruitless, the Court held an ex parte hearing to address CAIR-AN's request for a temporary restraining order. See Min. Entry (Nov. 2, 2009). On November 3, 2009, the Court granted in part and denied in part CAIR-AN's motion for a temporary restraining order, temporarily prohibiting the Gaubatz Defendants from making certain uses of materials obtained from Plaintiffs' offices and requiring the return of such materials to CAIR-AN's counsel. See Council on American-Islamic Relations v. Gaubatz, 667 F.Supp.2d 67 (D.D.C. 2009) (" CAIR I " ).

On November 19, 2009, CAIR-AN and the Gaubatz Defendants jointly moved for a consent order granting CAIR-AN's motion for a preliminary injunction. See Joint Mot. to Enter Consent Order Granting Prelim. Inj., ECF No. [19]. That same day, the Court entered the proposed consent order. See Consent Order Granting Prelim. Inj., ECF No. [22]. Pursuant to that order, the Gaubatz Defendants are (1) enjoined from making any use, disclosure, or publication of any document obtained from any office or facility of CAIR-AN, any recording of meetings of or conversations involving CAIR-AN's officials or employees, and any copies of such documents or recordings, (2) required to remove from any website or blog under their control any such documents or recordings, and (3) required to return any such documents or recordings, including any copies, to CAIR-AN's counsel. See id. ¶ ¶ 1-4. Subsequently, the Court clarified that its order permits the Gaubatz Defendants' counsel, but not the Gaubatz Defendants themselves, to retain copies of the documents at issue for indexing purposes. See Order (Dec. 10, 2009), ECF No. [30], at 2. Absent further action from the Court, the preliminary injunction will remain in effect throughout this action. See Consent Order Granting Prelim. Inj., ECF No. [22], ¶ 5.

On December 20, 2009, Defendants Chris and David Gaubatz moved to dismiss the original Complaint. On March 1, 2010 and April 12, 2011, Plaintiffs moved to amend the Complaint. The Court resolved all these motions on June 24, 2011, granting in part and denying in part the Gaubatz Defendants' motion to dismiss and granting both of Plaintiffs' motion to amend. See Council on American-Islamic Relations Action Network, Inc. v. Gaubatz, 793 F.Supp.2d 311 (D.D.C. 2011) (" CAIR II " ). First, the Court granted Plaintiffs leave to amend the Complaint to (1) clarify that references to the " Council of American Islamic Relations" in the Complaint are to CAIR-AN, (2) add CAIR-F as a second plaintiff, (3) add CSP, Brim, Savit, and Pavlis as defendants, (4) assert statutory claims under the Federal Wiretap Act, the D.C. Wiretap Act, and common law claims for unjust enrichment and tortious interference with contract, and (5) introduce a handful of supplemental factual allegations in support of extant claims. See id. at 322-30. Second, the Court granted the Gaubatz Defendants' motion to dismiss insofar as it sought dismissal

Page 252

of Plaintiffs' claim for the conversion of electronic data (one component of Count Three of the Second Amended Complaint) and otherwise denied the motion, including insofar as it sought dismissal of Plaintiffs' claim for the conversion of physical documents (the remainder of Count Three of the Second Amended Complaint). See id. at 330-45.

Subsequently, Defendants CSP, Brim, Savit, and Pavlis filed a Motion to Dismiss the Second Amended Complaint. See Mem. of P. & A. in Supp. of Mot. to Dismiss Counts I & II, ECF No. [97]. In addition, on March 5, 2012, Plaintiffs filed another motion to amend their Complaint, seeking to add David Yerushalmi and SANE as Defendants. See Pls.' Mot. for Leave to File Third Am. Compl. & Mem. in Supp. of Mot. for Leave to File Third Am. Compl., ECF No. [112]. The Court resolved all these motions on September 17, 2012, granting in part and denying in part the CSP Defendants' motion to dismiss and granting in part and denying in part Plaintiffs' motion to amend. See Council on American-Islamic Relations Action Network, Inc. v. Gaubatz, 891 F.Supp.2d 13 (D.D.C. 2012) (" CAIR III " ). The Court dismissed Count One of the Second Amended Complaint, based on the Federal and D.C. Wiretap Acts, insofar as Plaintiffs sought to hold liable the CSP Defendants (or any other Defendant) (1) under a theory of secondary liability, with respect to both the Federal and D.C. Wiretap Acts and (2) under a theory of procurement liability, with respect to the Federal Wiretap Act. Id. at 23-26. The Court also dismissed Count Two of the Second Amended Complaint, based on the Stored Communications Act, (1) against the CSP Defendants (and any other Defendant) insofar as Plaintiffs relied on a theory of secondary liability and (2) against the CSP Defendants insofar as Plaintiffs relied on a theory of primary liability. Id. at 26-29. In all other respects, the motion was denied. Regarding Plaintiffs' Motion to Amend, the Court denied the motion insofar as Plaintiffs sought to assert claims against either SANE or Yerushalmi (1) under the Federal Wiretap Act using a theory of procurement liability, (2) under the Federal or D.C. Wiretap Acts using a theory of secondary liability, and (3) under the Stored Communications Act using a theory of secondary liability. Id. at 35.

On May 19, 2013, after the parties completed discovery, Defendants filed their [154] Motion for Summary Judgment seeking dismissal of this lawsuit in its entirety. On the same date, Plaintiff CAIR-F filed its [156] Motion for Partial Summary Judgment, seeking a judgment in its favor on its ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.