Copyright Defendant’s Secret Phone Recording Stays Confidential

A recording of a phone call between a copyright suit defendant and the plaintiff’s copyright enforcement agent was properly designated as confidential under a discovery order, a federal magistrate judge ruled Mar. 5.

Geoarm Security’s interest in keeping the recorded conversation private outweighs Alarm Grid Inc.’s need to share the information with the enforcement agent, a non-party to the litigation, Magistrate Judge William Matthewman said.

Alarm Grid alleges that one of its copyrighted photographs was unlawfully displayed on Geoarm’s website. The litigants are competing alarm monitoring services companies that target consumers who install security systems on a do-it-yourself basis.

After Alarm Grid filed the copyright lawsuit, a Geoarm employee called ImageRights International Inc., Alarm Grid’s copyright enforcement agent. Geoarm allegedly never advised ImageRights that the call was being recorded. But Geoarm listed the call on its privilege log in discovery for the copyright matter.

The court in January ordered Geoarm to hand over the recording to Alarm Grid. The recording isn’t protected by the work product doctrine and there are some indications that it may have been made in violation of Florida law, the court said.

Subsequently, Geoarm produced a copy of the recording and designated it as confidential under the parties’ protective order. The parties last November entered into a stipulated umbrella protective order, which set the terms regarding how confidential information will be disclosed and handled during discovery.

Alarm Grid challenged Geoarm’s s confidentiality designation and sought to give the recording to ImageRights.

The recording can’t constitute as a proprietary trade secret and Geoarm’s labeling of the recording is an attempt to avoid disclosure of criminal behavior, Alarm Grid told the court.

Siding with Geoarm, Matthewman said the defendant had demonstrated there is good cause for keeping the recording confidential.

“Currently, the recording is merely discovery material, and the confidentiality designation shall remain unless and until the Court orders otherwise at a later point in this litigation,” he said.

Moreover, Alarm Grid’s argument that Geoarm’s counsel can’t ethically designate the call as confidential is unavailing, he said.

Under the Florida Rules of Professional Conduct, a lawyer can’t fail to disclose a material fact to a third party when doing so is necessary to avoid assisting a criminal or fraudulent act by a client. Here, Geoarm’s counsel didn’t fail to disclose any material facts because the recording was identified on the company’s privilege log during discovery, Matthewman said.

Duane Morris LLP represented plaintiff Alarm Grid Inc. Cole, Scott & Kissane PA and Law Office of Lee Anne LeBlanc, P.A represented defendant Geoarm Security.

The case is Alarm Grid, Inc. v. Alarm Club.com, Inc. , 2018 BL 73956, S.D. Fla., No. 17-80305-CV-MARRA/MATTHEWMAN, 3/5/18.