Plaintiff, v. CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.; AMERICAN BROADCASTING COMPANY, Plaintiff INC.); KVOA COMMUNICATIONS, INC.; KGUN INC.; KOLD INC.; KNST INC.; “JOHN DOE Defendants,”           Defendants.	PLAINTIFF’S REPLY & OBJECTIONS TO THE JULY 17, 1998 MAGISTRATE’S REPORT AND RECOMMENDATION (ORAL HEARING REQUESTED)

 The Plaintiff hereby submits his reply and objections to the Magistrate Judge’s Report and Recommendation (R & R) dated July 17, 1998.  Unfortunately, the Magistrate Judge has made recommendations unfavorable to the Plaintiff. This objection by the Plaintiff shall address specific errors in the R & R as well as make points as to why the
R & R incorrectly makes the recommendation it does. The objections that follow are highlights that support Plaintiff’s submitted filings or make corrections to the R & R. Consequently, this specific pleading will not discuss all of Plaintiff’s pleadings as the District Court can independently and thoroughly examine those in their entirety.

MAGISTRATE’S REPORT & RECOMMENDATION IGNORES CRUX OF CASE:  SATELLITE SURVEILLANCE

 First, and foremost, the Report simply does not discuss in any manner the crux  of this case-satellite surveillance and 4th amendment violations.  The Plaintiff believes this is an unfortunate error in the Magistrate Judge’s reading into the facts and the legal arguments submitted thus far in this case.  In addition, it may well be that the Plaintiff’s case is the first case of its kind submitted before the federal courts as it pertains to satellite surveillance. (The treatise Warrantless Satellite Surveillance:  Will Our 4th Amendment Rights Be Lost in Space?  mentions that as of summer 1995 no cases  had yet been presented to the courts.  The Plaintiff would also recommend that this court review this treatise carefully).  As such, this Court should be very open minded and liberally accept  Plaintiff’s facts as true as it pertains to this type of surveillance.  All Plaintiff can say is that as best one can witness this type of surveillance, he has. Obviously, this makes it difficult for a plaintiff to bring forth physical evidence as one would most likely be able to if he were a victim of traditional surveillance in which an electronic “bug” was used and discovered.  Nonetheless, in the present case there are ample witnesses, perhaps hostile, as well as other physical evidence to fully prove the facts.

MAGISTRATE’S REPORT IGNORES CRITICAL MATERIAL FACTS

 The second major objection the Plaintiff has with the R & R is that the Magistrate has simply incorrectly evaluated facts.  While all facts presented by the Plaintiff are material facts, one in particular has been wrongly evaluated by the Magistrate.  Fact number 55 from “Plaintiff’s Statement of Material Facts in Support of His Complaint” submitted on January 5th, 1998 reads as follows:

 55)On May 25, 1995, within approximately one hour of his employment interview, KVOA broadcast parts of Plaintiff’s employment interview “live” that were intercepted illegally, in what could be regarded as a “special report.” (Wenc affidavit #2,  1,2, 9d).
 

Unfortunately, the Magistrate has trivialized this important fact placing it into a footnote in the R & R and by incorrectly relying on an affidavit submitted by KVOA.  In addition, Plaintiff responded to the supplemental affidavit submitted by Jon Ruby of KVOA by clarifying the time in which KVOA carried out the rebroadcast stated in Plaintiff’s fact #55. (See Plaintiff’s Reply in Support of His Statement of Facts in Support of His Complaint, p. 6, n. 10).  To repeat, this broadcast did not occur during any of KVOA’s regular four broadcast shows as Ruby’s affidavit attests to.  Thus, the scripts reviewed and relied upon by both KVOA and the Magistrate are of significant error.  Moreover, KVOA has not objected nor provided an affidavit disputing when this rebroadcast of the interview occurred.  Thus, a material fact exists as is relevant to the Plaintiff’s claims in this Complaint.

MAGISTRATE’S REPORT MISINTERPRETS PLAINTIFF’S FACTS

 The Plaintiff has listed facts referred to as “in disguise” comments as it pertains to evidence of surveillance. The phrase “in disguise” is used in reference as it is used in 42 U.S.C. § 1985 describing conspiracies and  appropriately it describes the nature of the Defendants’ actions as it relates to the highly covert surveillance and how the Defendants apparently wanted to make Plaintiff aware of the Defendants’ surveillance activities.  The Plaintiff has stated that most of these “in disguise” comments were, in one form or  another, to get Plaintiff’s attention.
 Unfortunately, the Magistrate is unable to view these “in disguise” comments as evidence  of surveillance or interception and disclosure of oral communications.  Perhaps the Magistrate has made this conclusion due the way such facts appear in printed form in the pleadings. In any case, the Plaintiff must disagree with the Magistrates interpretations and conclusions in judging these facts.  The Plaintiff has put the several instances of surveillance and disclosure of oral communications into printed words as best as he feels possible to describe events of that nature.  The Magistrate cites two examples in which she is unable to link such “in disguise” remarks to interception and disclosure of oral communications.  These two events being Plaintiff’s desire for a trial and his thoughts of depression and suicide.  Perhaps Plaintiff did not make it clear in his affidavits or his Statement of Material Facts, but the only way Defendants could have had knowledge to those desires by the Plaintiff is by intercepting oral  conversations  of Plaintiff regarding those ideas as they were made in conversations in Plaintiff’s apartment either in person, usually with his sister, or in some cases, as in with the desire for a trial, in calls to legal counsel.  Furthermore, the R & R states that “comments made  about [the Plaintiff] at work. . .does not support his contention that the comments he overheard resulted from any purported violation of the Federal Wiretap Statutes. . . .”  To disagree with the Magistrate’s conclusion, one must ask this question:  How else would strangers and Defendants have knowledge of Plaintiff’s private conversations and private events in Plaintiff’s life?  The answer to this question is simple: The Defendants intercepted/overheard conversations and recklessly shared or otherwise disseminated the contents of these oral communications of the Plaintiff.   Additionally, the R & R tends to overly rely on Plaintiff’s assertion that “unknown persons who may or may not be employees of Defendants. . .” have conducted the surveillance.  Plaintiff is merely stating, that by the very nature of the surveillance, that without discovery, it is impossible to name by proper name the specific individuals who technically operated the surveillance devices.

 ERRORS OF FACTS IN MAGISTRATE’S REPORT

 For the record, the Plaintiff must make light to the following factual errors either by misinterpretation or clerical error.
 1.) From page one of the report, it states “KOLD’s Motion to Unseal.”  The Motion to  Unseal was  filed by Defendants CNN and TBS.
 2.) From page five of the report, the Magistrate states the Tucson Mall as a location  where strangers discussed Plaintiff.  Plaintiff has never submitted any facts listing the Tucson Mall as a relevant location.
 3.) From page five of the report, the Magistrate has stated “Plaintiff canceled expanded cable service to eliminate CNN and Headline News.”  To clarify, Plaintiff did not cancel expanded  service with the  intent to eliminate those channels, that was merely a consequence of canceling expanding cable.
 The aforementioned factual errors illustrate how easy it is for a reader to misinterpret the true and intended meaning of facts presented in Plaintiff’s printed pleadings.  Hopefully such misinterpretations can be made more clearly in person at the oral hearing.

MAGISTRATE PREMATURELY RECOMMENDS AGAINST PLAINTIFF’S RIGHT TO AN AMENDED COMPLAINT

 Other than citing a case stating that Plaintiff should be denied the right to amend his complaint because it would lack merit or be futile, the Magistrate does not elaborate any reasons that would specifically apply to this case. It would appear such a recommendation is based on the Magistrate’s misreadings into Plaintiff’s facts. The Magistrate’s conclusion that an amended Complaint would be futile is simply legal error.  The actions and liabilities of the additional parties are relevant to the pending claims in Plaintiff’s Complaint.  At a minimum, video evidence possessed by one of the unnamed parties is a needed piece of evidence even if that party were to not be named in this suit or any other suit. Thus, it is simply incorrect to say an amended Complaint would be futile.  It is unclear at this point why the Magistrate would make recommendations  to the court that effectively protect the current Defendants and additional defendants from liability to their tortious actions.

R & R APPLIES INCORRECT JUDGMENT IN OPPOSING MOTION TO COMPEL  AND MOTION TO STAY

 As Plaintiff has stated previously, the Magistrate has incorrectly interpreted Plaintiff’s facts and consequently has wrongly concluded that discovery would not allow Plaintiff to show “how evidence sought will raise a genuine issue of  material fact.” (R & R, p. 24).  Obviously, the purpose of discovery is to initiate a plan to uncover any and all relevant persons, documents, knowledge and other tangibles pertinent in proving allegations.  Other than to agree with the Defendants claims that the Plaintiff seeks broad or voluminous discovery requests, the Magistrate fails to recognize the fact that in a conspiracy and surveillance case such as this, a Plaintiff must be granted a starting point for discovery in order to narrow down requests that become more relevant to the case at hand.  For example, Plaintiff has requested the names and duties of all employees for the various Defendants’ broadcasting stations.  Once such a list is given, it would become highly evident as to exactly which employees would need to be deposed and those that would not.  Moreover, the demanding of broadcast audio or video tapes by date and time is hardly a broad request, but as specific as one can make such a request. Importantly, too, many employees are now former employees of these Defendants which makes the requested discovery less broad and more needed.   The Court’s granting of discovery and eventual depositions is what justice requires.  God forbid that Defendants’ witnesses be allowed to tell the truth given the opportunity, even if it results in whistleblowing by their current or former employer.  To oppose discovery to the Plaintiff would essentially be setting the precedent that broadcasters are above the law and can conspire to covertly surveillance and violate the constitutional rights of individuals with eavesdropping devices without liability. Surely, this Court does not wish to convey such a message. The Plaintiff fails to see the  logic or legal basis in denying  discovery for there is no harm to the Court to allow the truth to be uncovered.  In fact, the very purpose of a court is to reveal the truth, not impose obstacles to camouflage the truth.
 In addition, the Magistrate again wrongly relies on the affidavits submitted by the general managers of KOLD, KVOA, KNST and KGUN.  As stated previously, those affidavits are merely based on the affiants “belief or knowledge.” Four wrongs can not outweigh the truth. The only thing the Defendant affidavits evidence is the apparent inability of those affiants to oversee every action at the respective broadcasting stations.  Moreover, none of the Defendants have submitted by any employee any affidavits countering any of the Plaintiff’s specific facts.  In essence, all the Defendant’s have submitted are vague affidavits that say, to the best of their belief and knowledge that “we didn’t do it.”  Surely, if every defendant could submit such a simple affidavit and basically say “they didn’t do it,” then every plaintiff would have his/her case dismissed. In addition, Defendants KVOA, KOLD and KNST have never filed any objections with the court to Plaintfiff’s Motion to Compel Discovery and Motion to Stay.  To dismiss Plaintiff’s claims without discovery would be highly premature and unjust and be contrary to precedents Plaintiff has cited in his pleadings. Thus, the Magistrate’s recommendation against Discovery and the Stay is in error.

WITHOUT DISCOVERY IT IS PREMATURE FOR THE COURT TO MAKE A RULING ON PLAINTIFF’S CLAIMS

 Aside from Plaintiff’s concessions that 18 U.S.C. § 241, 18 U.S.C. § 2512, and A.R.S. 13 §§ 107, 1003 and 3008 are listed in the Complaint for descriptive or definition purposes, it would be unjust and premature for the Court to make a legal ruling on Plaintiff’s legal claims without discovery as Plaintiff has stated repeatedly throughout his pleadings. The Magistrate has, in citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., that “[the non-movant] party must come forward with more persuasive evidence to support its claim than would otherwise be necessary.” (R & R p. 8) Plaintiff does not feel his facts are  implausible, but at this juncture in the case have been  misinterpreted by the Magistrate.  In any case, Plaintiff’s facts would better be illustrated before the Court accompanied by the needed video or audio tapes along with testimonial explanation.  This explanation can only be done inside the courtroom with the tapes.  Furthermore, after discovery it will become more evident the extent of the “state action” between the Defendants and the law enforcement officers and any other government  action.
 42 U.S.C. §1983
 In looking at the  particulars in the R & R pertaining to Plaintiff’s claim under 42 U.S.C. §1983, the Magistrate prematurely concludes that a nexus between the broadcasters and the law enforcement officers is lacking.  To the contrary, there  is a  strong link between the law enforcement agents and the broadcasters, which at this time appears to meet the “joint action test” as enumerated  from the R & R.  The most obvious of this “state action” link is the arrival of the law enforcement officers and the simultaneous , yet remote presence of the media broadcaster utilizing a space satellite or other surreptitious surveillance device.  This fact clearly exhibits a “meeting of the minds” among the state officials and private broadcasters.  It is no coincidence that the two parties were present at the same place at the same time, even if one party was remotely present. This only exemplifies the similarities of a nexus between the state officials and the media agents as in Berger concerning search and seizure and disclosure of confidential communications. Berger v. Hanlon 129 F.3d 505 (9th Cir. 1997).  However, the present case is unique in its own ways, as no two cases are likely to be identical.  In the instant case, we have covert surveillance being conducted from thousands of miles away, while locally law enforcement officials conduct their intents at the Plaintiff’s residence.
 42 U.S.C. 1985(1)
 Clearly, Plaintiff was not a federal officer during the time of the allegations in the Complaint.  However, Plaintiff is pleading to the Court to expand the reach of  section 1985(1) for the primary reasons that the offices Plaintiff did hold inevitably included federal duties and rights.
 42 U.S.C. 1985(2)
 As stated in Plaintiff’s Memorandum, the section 1985(2) is not settled as to whether or not “attending” federal court includes filing of a Complaint.  The R & R does not address this issue in that respect.  Accordingly, Plaintiff pleads that this District Court adopt the interpretation that filing a complaint be protected within the definition of attending court under 42 U.S.C. 1985(2).  The facts to validate this claim are a question for a jury.
 42 U.S.C. § 1985(3)
 While the R & R discusses the requirements for a valid claim under §1985(3), the Magistrate’s recommendation to dismiss this claim is again incorrect as the recommendation is based on misreadings of Plaintiff’s facts.  In addition, the R & R notes that the Plaintiff has not provided supporting evidence as it pertains to this claim.  This recommendation is not in accord with viewing “all inferences in the light most favorable to the non-moving party.” (R & R, p. 8)  Plaintiff has stated the class motive behind the Defendants’ conspiracy actions and has provided evidence to that effect.  At this juncture, that is all a Plaintiff need provide and establish in meeting the class based motive under §1985(3).  In addition, the Magistrate has clearly erred in concluding that the Plaintiff has not been deprived any fundamental rights.  The Plaintiff has provided a list of nine rights. (See Plaintiff’s Memorandum, p. 2).  Understandably, however, the Magistrate makes such a recommendation from a different vantage point, as an outsider not having experienced or witnessed what the Plaintiff has experienced and witnessed. For this reason, it  would seem most appropriate that the court allow discovery so it could more clearly evaluate the facts rather than make rulings with a blind eye.
 47 C.F.R. §§ 15.9 and 2.701
 The R & R fails to address the validity of the 1966 FCC Order prohibiting private citizens from using radio eavesdropping devices.  In addition, the Magistrate neglects the distinction that CNN and TBS are cable programmers and are thus subject to the FCA’s definition of common carriers engaged in wire communications as defined in 47 U.S.C. §153(h), who are then ultimately subject to liability under 47 U.S.C. § 206.
 Pendant State Claims
 Because the Magistrate has misinterpreted Plaintiff’s facts for the federal claims, likewise the discretion to dismiss the pendant state claims is also in error.

CNN & TBS’ MOTION TO UNSEAL

 It is unfortunate the Magistrate recommends unsealing documents previously sealed without allowing Plaintiff the opportunity to present to the court evidence to substantiate Plaintiff’s claims.  Of course, it is only “hypothesis and conjecture” that a person could be physically harmed if further improper dissemination were to occur regarding issues under seal in this case. Obviously, no one can predict the future, but surely all parties and the Court would agree that safety of any individual is desirable.  As for the facts for which Plaintiff has requested to remain under seal, there is nothing hypothetical or speculative about things the Plaintiff has witnessed.  Therefore, the Magistrate again prematurely has recommended to lift the seal and as such has simply erred in judgment regarding the purpose of the seal.  Therefore, the Seal should remain in place and the Court should extend the Sealing Order as Plaintiff has previously requested.

CONCLUSION

  The Magistrate’s Report and Recommendation is based on errors and misinterpretations in fact and consequently errors in application of the law.  Significantly, these errors have led to a premature recommendation against discovery for the Plaintiff.  Such recommendations have been made on apparent uninformed affiants, who have provided no other testimonial affidavits countering any of the specifics of Plaintiff’s Complaint. Moreover, factual evaluations accompanied by testimony and evidence are determinations for a jury to determine the validity and credibility.  Therefore, the right thing for the District Court to do is to grant Plaintiff’s Motion to Stay and Motion to Compel and eventually allow the Plaintiff to file an amended complaint.

 Dated July 31, 1998 Plaintiff

Copies of the foregoing mailed, to the addresses on record,  this ___th day of July 1998, to:

David J. Bodney/CNN & TBS
Diane M. Johnsen & Stephen E. Silverman/ABC
George O. Krauja & Jennifer M. Dubay/KGUN
Janice A. Wezelman/KVOA
Gary F. Urman/KOLD & KNST
 

Back to Satellite Surveillance Home