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Grey v. Kirkland & Ellis

September 2, 2010

FAYE R. GREY, PLAINTIFF,
v.
KIRKLAND & ELLIS, LLP, AN ILLINOIS LIMITED LIABILITY PARTNERSHIP, DEFENDANT.
TAMMI P. BOWDEN, PLAINTIFF,
v.
KIRKLAND & ELLIS LLP, DEFENDANT,
NANCY J. GAGEN, PLAINTIFF,
v.
KIRKLAND & ELLIS LLP, DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiffs, two former employees and one unsuccessful job applicant of Chicago-based law firm Kirkland & Ellis LLP ("Kirkland"), assert various employment discrimination claims against the firm.*fn1 In addition, all three Plaintiffs accuse Kirkland of engaging in the systematic interception and surveillance of their private telephone conversations in violation of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2510 et seq., and the Illinois Eavesdropping Act, 720 ILCS 5/14-2. Plaintiff Tammi Bowden recalls that she took care not to make personal phone calls from her office phone at Kirkland. Yet numerous personal calls appear in Kirkland's phone bills rather than in Ms. Bowden's cell phone bills, where she expected to see them. From these circumstances--and these alone--Ms. Bowden and her co-Plaintiffs conclude that Kirkland violated federal and state law by eavesdropping on her personal conversations. Kirkland seeks summary judgment on these claims, and because Plaintiffs have failed to produce any non-speculative evidence that Defendant did, in fact, engage in eavesdropping, the motion is granted.

BACKGROUND

Plaintiff Tammi Bowden is an African-American woman who was employed as a legal secretary at Kirkland between December 1996 and February 2007. Plaintiff Nancy Gagen is a Caucasian woman who was employed as a document specialist at Kirkland between March 2002 and March 2006. Plaintiff Faye Grey is an African-American woman whose two applications for employment at Kirkland in June 2004 and May 2005 were both rejected. (Def.'s 56.1 Stat. at ¶ 2.) During the relevant periods, both Bowden and Gagen worked in Kirkland's document support services department, where they were supervised by Leah Quinlisk and Donna Amos. (Pl.'s 56.1 Resp. at ¶ 3.) Bowden, Gagen, and Grey are friends who, during the time period in question, regularly engaged in personal telephone conversations with one another to discuss their shared grievances against Kirkland and the pendency of a discrimination charge that Bowden filed against the firm with the Equal Employment Opportunity Commission ("EEOC") in early October 2005.*fn2 (Pl.'s 56.1 Stat. at 2.)

In September 2005, Bowden testified, she "began to suspect or had a sneaking suspicion" that Kirkland was monitoring the land-line telephone in her workspace. (Pl.'s Resp. at ¶ 9; Bowden Dep. at 320-22.)*fn3 Motivated by these suspicions, Bowden resolved to refrain from using her desk phone and began using her private cell phone to conduct personal calls while at work. (Id.) According to Bowden, after September 2005, she conducted almost all of her personal calls on her cell phone. Bowden acknowledged, however, that she still made or received occasional personal calls from her desk phone if, for example, she was temporarily unable to get a cell phone signal or if she was only making a quick call. (Bowden Dep. at 321-23.) Bowden estimated that she made or received between 10 and 20 calls per day; she acknowledged that she could not remember every personal call she made during this period. (Id. at 353.) Bowden's cell phone at the time was a Nokia 6010 GSM digital phone. The signal of a digital cell phone is encrypted, and the parties do not dispute that "[i]t is virtually impossible to intercept a digital phone without possessing sophisticated equipment and technical expertise." (Pl.'s Br. at 5.)

On or around September 27, 2005, Bowden and Gagen agreed that any conversation between them would be conducted using Bowden's cell phone in order to circumvent any possible monitoring by Kirkland.*fn4 (Pl.'s 56.1 Resp. at ¶ 10.) Bowden gave similar instructions to Grey. Nevertheless, Grey and Gagen did continue to call Bowden's desk phone on rare occasions. "[Gagen] made a few mistakes after [September] 27th," Bowden testified. "[A] few calls where I quickly got her off the phone, but with the exception of maybe one call in September that was two minutes or so and one in early October, she never called me on my land line except probably a few instances where she was trying to track me down and never got me . . . ." (Bowden Dep. at 322.) Bowden remains adamant in asserting that, with the limited exceptions stated above, she stopped using her desk phone almost entirely and used her cell phone whenever she made outgoing personal calls to either Gagen or Grey. (Pl.'s 56.1 Stat. ¶ 4-5.)

Bowden believes that, between October 2005 and June 2006, Kirkland intercepted and eavesdropped on the calls she made from her cell phone whenever she was sitting at her workstation in Kirkland's offices. (Pl.'s 56.1 Resp. at ¶ 15.) She bases her contention, in part, on what she perceives to be discrepancies in her monthly cell phone bills. (Id. at ¶ 18.) Omissions in Bowden's billing information, Plaintiffs urge, demonstrate that "something is not Kosher at Kirkland & Ellis LLP." (Pl.'s Resp. at 2.) Precisely what that something is, however, remains elusive. Bowden herself admitted that she is unclear about how or why Kirkland actually went about intercepting her calls. When asked her basis for the interception allegations, Bowden responded: "I have no idea. I just know that my Cingular [cell] phone activity was not reflected by Cingular's phone records and only when I was at my workstation." (Bowden Dep. at 327.) As the court understands it, Plaintiffs' contention is as follows: according to Bowden, many of the calls that she dialed or received on her cellular phone between October 2005 and June 2006 are not accurately reported on her monthly cell phone billing records. Specifically, the bills omit entirely every call that Bowden claims to have made or received on her cell phone while she was sitting in her workspace. (Bowden Decl. at ¶ ¶ 13, 18.) The omitted calls allegedly include several telephonic conversations between Bowden and the other Plaintiffs, in which Plaintiffs discussed their general dissatisfaction with the firm and Bowden's pending EEOC complaint. The omitted calls also allegedly include dozens (or perhaps hundreds) of personal calls that Bowden placed to her boyfriend, her neighbor, her brother, her therapist, the man who painted her condo, the developer of her condo complex, and many others. (Pl.'s Ans. to Second Set of Interrog.) Significantly, several of the calls that are allegedly omitted from Bowden's cell phone bills instead appear on Kirkland's internal telephone records, reported there as having originated from or terminated at the land-line telephone on Bowden's desk. Based on her memory of having placed the telephone calls only from her cell phone and her professed habit of deliberately avoiding use of her workspace telephone, Bowden asserts that Kirkland's internal telephone records are erroneous and reflect calls that she did not actually make using the firm's telephone system. (Bowden Dep. 311-21.)

Plaintiffs claim that the absence of cellular billing records for calls purportedly placed on Bowden's cell phone and the erroneous reporting of these same calls on Kirkland's internal records are "anomalies" that cannot be innocently explained. (Pl.'s 56.1 Stat.at ¶ 41.)*fn5 Plaintiffs infer from these apparent anomalies that Kirkland somehow intercepted Bowden's cell phone signal, removed Bowden's calls from the network of her cellular carrier (Cingular Wireless), and rerouted the signal through the firm's internal telecommunications system. (Bowden Dep. at 301-02.) Plaintiffs themselves recognize that such an interception would require tremendous technological sophistication, but they nevertheless insist that it is "theoretically possible." (Pl.'s Stat. at ¶ 41.)

Referring to the apparent inconsistency in the billing records, Gerald Christensen, a wireless-systems engineer retained by Plaintiffs, opined that "based on various highly unusual call anomalies that cannot be explained by normal wireless telecommunications call signaling, processing and routing, there is a reasonably high probability that call interception of some type and through some method occurred . . ." (Christensen Decl. at ¶ 2; Christensen Report of 12/22/09 at 3.) Christensen did not explain what precisely he meant by the phrase "reasonably high probability," but in his deposition he stated that he had "satisfied [himself] that there was some forensic evidence, let's call it, that could indicate the potential for interception may have occurred." (Christensen Dep. at 37.) The "forensic evidence" to which Christensen referred appears to be the billing records, which Christensen concluded "do not reflect call details in accordance with Bowden's actual phone usage or call activity." (Christensen Report of 12/22/09 at 5.) This evidence, Christensen opined, "merit[ed] further investigation to verify if said interception occurred . . ." (Id. at 4.) That Christensen called for "further investigation" satisfies the court that he was unable, from his review of records, to "verify" Plaintiffs' allegations of interception.

Christensen further hypothesized that it would be possible for an entity to intercept digital cellular phone calls in the manner Plaintiffs allege by using one of two devices: an International Mobile Station Identifier ("IMSI") catcher or a GSM interceptor (or "sniffer"). (Id. at 49-54.) Christensen testified that these devices are typically used by governments and law enforcement agencies, and that they are not available to the general public. (Id. at 54-58.) Christensen speculates that it is nevertheless "conceivable" that an entity like Kirkland could obtain such a device on the black market: "[O]f course, again, this is speculation on my part and I shouldn't provide testimony on speculation, but I would presume that it's conceivable that somebody could obtain one [of these devices] if they were not a lawful organization if they went to one of these [overseas sellers of the devices]." (Id. at 69.) Christensen explained that his conclusion was based on his "gut reaction" to marketing materials for such devices that he found on the internet. (Id. at 70-71.) Plaintiffs state that they "now believe[] defendant used a an [sic] IMSI catcher/GSM interceptor (sniffer) to intercept and eavesdrop on [Plaintiffs'] calls . . ." (Pl.'s Resp. at ¶ 28.) Based on the technical limitations of such a device, Plaintiffs posit that the IMSI catcher or sniffer was covertly located somewhere proximate to Bowden's workspace, though Plaintiffs admit that none of them ever saw or heard of such a device in use at Kirkland. Kirkland's unlawful eavesdropping, Plaintiffs speculate, was apparently motivated by the firm's concern over Bowden's EEOC charge and her various internal complaints against her supervisors.

Plaintiffs also assert that Kirkland separately intercepted calls terminating at a land-line telephone in Gagen's home by apparently colluding with Gagen's telephone service provider, AT&T. According to Plaintiffs, AT&T's records reveal that the company routed specific calls to Gagen "in an indirect, suspicious manner that was different from the way other similar calls had been routed during that same time. Those incoming calls were only from African-American employees and an African-American job applicant of Kirkland & Ellis." (Bowden Decl. at ¶ 29.) The records referred to by Plaintiffs record the series of switches in the AT&T network that were automatically used to connect a given call. John DeWitte, a telecommunications engineer retained by Plaintiffs, stated that the switching records "appear[]" to show "some discrepancies regarding the routing of particular calls [to Gagen's home] in relation to other seemingly similar calls." (De Witte 12/22/09 Report at 5.) Specifically, DeWitte found, certain calls from Bowden's cell phone to Gagen's home land line "could have been routed differently than other calls with similar dialing characteristics." (Id. at 7.) "While it is [AT&T's] prerogative as to how they choose to route calls through their network, " DeWitte stated, "it would seem logical that similar calls would route in a similar manner." (Id.) In De Witte's view, AT&T's switching records did not adequately explain "why seemingly similar calls [to Gagen's home land line] were routed differently." (Id.) Plaintiffs interpret these routing "discrepancies" as evidence that AT&T, Kirkland, or both somehow diverted specific calls to or from Gagen's home. Plaintiffs do not explain, however, why AT&T would abet Kirkland's unlawful surveillance of an AT&T customer or how the company could possibly have known the race of the party originating the rerouted telephone calls. Nor do Plaintiffs appear to contemplate whether there are innocuous explanations for the switching patterns. Instead, Bowden intimates that AT&T is directly implicated in the wrongdoing; as evidence, she points out that AT&T "has strategically delayed its responses to plaintiffs' subpoenas over the course of this litigation." (Id.) DeWitte acknowledged, however, that he had not seen any evidence to connect AT&T's routing decisions with interference of any kind by Kirkland. (DeWitte Dep at 221; 234-34.) DeWitte testified, "with the information that I've been provided that I've seen, you know, there is nothing-- there is nothing that I'm aware of that even mentions Kirkland." (Id. at 95.)

Plaintiffs nevertheless remain certain that Kirkland was spying on their phone calls. They point to an e-mail exchange between Kirkland employee Lynn Tilton and Quinlisk, Plaintiffs' supervisor. In that e-mail exchange, Tilton stated that she received "an unusual phone call yesterday from Nancy Gagen." (Pl.'s 56.1 Resp. at ¶ 31.) "Nancy talked about political issues [regarding management at Kirkland] that I just couldn't follow or keep up with but your [Quinlisk's] name also came up," Tilton wrote. "I'm very concerned about this woman's intentions. I don't have anything against Nancy but cannot understand why she would want to communicate these types of issues to anyone[,] especially someone outside the K&E firm." ( Ex. 4 to Gagen Dep.) At the time, Tilton was working at Vedder Price, another Chicago-area law firm.

Gagen admits that she spoke with Tilton on the phone the day before Tilton sent the e-mail, but she denies ever conveying the information recounted in Tilton's e-mail. (Gagen Dep. 212-13.) Specifically, Gagen denies that she shared with Tilton her complaints about Quinlisk, Amos, and her other supervisors at Kirkland. That information, Gagen testified, "was completely absolutely never discussed in any way, shape[,] or means with Lynn Tilton." (Id. at 213.) Instead, Plaintiffs contend, the information could only have been learned by eavesdropping on private conversations between Gagen and Bowden. Bowden speculates that it was "likely Leigh Quinlisk" herself who disclosed the allegedly intercepted conversations to Tilton. Again, Plaintiffs admit that they have no evidence to support that speculation. (Pl.'s 56.1 Resp. at ΒΆ 34.) So far as the court is aware, neither side took Ms. Tilton's deposition. For her part, Ms. Quinlisk testified that she ...


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