The Wiretap Act And The Energy Policy And Conservation Act

• Jurisdiction: United States,Federal,California
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Energy and Natural Resources, Energy Law, Oil, Gas & Electricity, Water
• Author: Ms Lena H. Hughes and Joel F. Wacks
• Published date: 24 July 2023

This week, the Court addresses the Wiretap Act and whether the Energy Policy and Conservation Act preempts Berkeley's natural-gas-infrastructure ban.

Read the full blog post.

This week, the Court addresses the Wiretap Act and whether the Energy Policy and Conservation Act preempts Berkeley's natural-gas-infrastructure ban.

PYANKOVSKA V. ABID

The Court holds that the Noerr-Pennington doctrine does not preclude liability for Wiretap Act violations that illegally obtained evidence for use in custody proceedings in state court.

The panel: Chief Judge Murguia and Judges Parker (2d Cir.) and Lee, with Judge Parker writing the opinion.

Key highlight: "Jones and Abid's right to petition in a case with no public significance does not grant Jones immunity from the penalties prescribed by Congress for those who violate the Wiretap Act. Once they were in state court, Jones and Abid were not at liberty to set their own rules. Jones was free to file and argue the custody motion'i.e., to petition'but he was not free to support that motion with illegal evidence. In other words, because Jones had no petitioning 'right' to use the transcripts in the first place, requiring him to face the consequences specified by Congress for those who violated the law is not a cognizable 'burden' on any conduct he was lawfully entitled to participate in." (Citations omitted.)

Background: In the midst of a bitter custody dispute, defendant Sean Abid surreptitiously recorded conversations between his ex-wife, plaintiff Lyudmyla Pyankovska, and the estranged couple's child by putting a recording device in their child's backpack. Abid then edited transcripts of the conversations and gave them to his lawyer, defendant John Jones. Jones submitted the transcripts to the state court hearing the custody dispute between Abid and Pyankovska. The state court allowed a court-appointed psychologist to rely on the transcripts and, after considering the psychologist's testimony and other evidence, granted Abid primary physical custody. Abid subsequently uploaded the transcripts to Facebook.

Pyankovska sued Abid and Jones in federal court alleging violations of the Federal Wiretap Act, its Nevada analogue, and various other state common law claims. The district court granted Jones's motion to dismiss on the basis that his conduct was protected by the Noerr-Pennington doctrine. It allowed the claims against Abid to proceed and entered default judgment against him on all claims when he provided inaccurate discovery...