11:42am PT by Eriq Gardner
Producers of Meek Mill Docuseries Beat Wiretapping Suit Over Attorney Caught on "Hot Mic"
Amazon and Roc Nation have prevailed in a rather unique wiretapping lawsuit brought by A. Charles Peruto Jr., a Philadelphia attorney who represented Judge Genece Brinkley, infamous for sending rapper Meek Mill to prison on multiple occasions for probation violations.
The defendants in this case are producers of a forthcoming documentary series titled #FreeMeek charting Meek's rise to fame and his 10-year battle with Philadelphia justice officials. In connection with the program, the filmmakers interviewed Peruto in May 2018. That interview probably wouldn't be remarkable but for what happened at the end — when everyone was wrapping up and the camera was turned off.
"This case arises out of a 'hot mic' situation where an attorney made candid and embarrassing comments about his client without realizing that he was still being recorded," opens a summary judgment opinion on Wednesday from U.S. District Court Judge Gerald McHugh.
After the interviewer told Peruto that the interview went fantastic, and the attorney thanked his interrogator, Peruto added, "Let me tell you something. ... That was hard to do because defending this judge is now becoming — why doesn't she just grant this fucking thing?"
Peruto continued by disparaging Judge Brinkley and the handling of the Mill case.
Those comments were then leaked to the press, and following unflattering media attention, Peruto filed suit against the producers. The attorney alleged this his comments were "off the record" and he aimed to recover the tapes and prevent #FreeMeek from using his comments.
Before getting to the judge's ruling, we must take a short detour to the 2016 presidential election, when The Washington Post published a leaked Access Hollywood tape of Donald Trump boasting about groping women. According to what Trump would later tell The Daily Caller, he had a lawsuit prepared against NBC over his own hot-mic situation. Of course, Trump won the election and never did sue, but let's say he did. What would have happened? Wednesday's decision might provide a clue.
The judge had the Peruto tape authenticated and doesn't hear the attorney ever instructing anyone to go "off the record" nor stop recording.
In analyzing the claim of wiretapping, a statute intended to prevent the interception of one's communications, McHugh says the big question is whether Peruto exhibited any expectation of privacy.
Peruto and his expert pointed to how the camera was turned away, how he attempted to remove his lavalier microphone and an abrupt shift in tone. That might add up to a colorable argument of privacy expectation, but again, Peruto never expressly verbalized an intention to go "off the record."
"Regardless, even if Mr. Peruto had demonstrated an expectation of privacy, in no respect did he have a reasonable expectation of privacy, a standard the Pennsylvania Supreme Court has interpreted narrowly," writes McHugh. "Mr. Peruto spoke freely in front of a room full of individuals, some of whom he did not know, in the presence of recording equipment. Although Peruto’s office may have been more secure from eavesdroppers than the squad room in Agnew, the recording devices present had been active mere seconds before and were thus more likely than the intercom phones in Agnew to intercept the conversation. Peruto knew the recording devices had just been recording, yet he began disparaging his client before he even had time to fully remove his microphone. Given the controversial nature of the case he was discussing, Defendants’ interest in getting a story, and the controversial nature of his remarks, Peruto had greater reason than the officers in Agnew to be concerned that his words might be intercepted, overheard, or otherwise disclosed."
Ah, but what about journalistic ethics and some expectation that filmmakers would respect the confidentiality of the post-interview statements?
Judge McHugh addresses this, too.
"First, Peruto knew he was disparaging his client to journalists working on a documentary series about a controversy in which public opinion has been hostile to his client," states the summary judgment opinion. "Any reasonable person could infer from that fact that Defendants would have an interest in disclosing his candid opinions about his client. For a journalist, to catch an interview subject in a fundamental contradiction is a prized coup — something Mr. Peruto would well understand."
It's added that Peruto signed a release, consenting to the use of his recorded conversations, and finally as this point bears repeating, the attorney never took what the judge says was the "obvious and elemental step of confirming that he was speaking off the record," despite his later invocation on the norms of journalism.
"Had Mr. Peruto in fact directed Defendants to go off the record and received confirmation that they were off the record, as he alleged in various pleadings, the outcome here would be considerably less clear," continues the opinion. "But it has been definitively established by authenticating the recording that no such exchange occurred. It may be that a subjective expectation of privacy is what prompted Peruto to disparage his client in front of the media and their recording equipment, but such an expectation cannot possibly be considered objectively reasonable under the controlling standard."