By JODI SOKOLOWSKI
Buffalo Law Journal

A U.S. District Court judge has dismissed a lawsuit alleging that a Buffalo lawyer eavesdropped during a pretrial meeting using a BlackBerry.

In a ruling granting summary judgment to defendant Jay Pletcher, issued Friday, Hon. Charles Siragusa of District Court in Rochester concluded that the plaintiffs' accusations represented "rank speculation" and were "patently unreasonable."

Susan Burgess, a Brockport solo practitioner, had claimed that Pletcher, a partner at Goldstein Ackerhault & Pletcher LLP who was representing the Fairport Central School District, listened in to confidential conversations between her and her client during a hearing for the client's child, who has special educational needs. Burgess alleged in a November lawsuit that Pletcher used his combination cell phone/PDA, which was left on the table when he was out the room numerous times, to dial to a school administrator's office during the meeting.

The judge wrote that Pletcher's unredacted phone records for the duration of the Aug. 4, 2006, meeting showed no calls during the two-hour conference, "other than a one-minute incoming call at 11:32 a.m." Burgess, who requested and received a redacted list of Pletcher's phone records, also claimed that Pletcher may have used a PDA/cell phone belonging to someone else, and requested cell phone records of others, including the wives of both Pletcher and a school administrator involved in the hearing.

The judge stated that such an "unlimited" discovery demand was "purely speculative."

"This is one of the ‘rarest of cases' in which summary judgment is appropriate prior to discovery," he wrote.

Martha Buyer, an East Aurora solo practitioner who is not connected to the case, said that while it's possible for a PDA/cell phone to be used as a recording device without that recording appearing on the carrier's records, the sound quality would be "terrible" on a conversation recorded during a phone call.

"You might as well be talking through two tin cans and a string," she said.

It is also feasible for a recording to have been transferred to another electronic device and then deleted from the PDA/cell phone so that it could not be recovered through electronic discovery, noted Buyer, who practices telecommunications law and was previously a network engineer.

"My brief assessment is, the person who brought this suit does not have a full appreciation of what the technology's capabilities and limitations are," she said.

Buyer said it's highly unlikely that there will be a "rash" of cases alleging eavesdropping through PDAs, because "it's not probable and there's no proof."

Noting "a lowering of standards of attorney behavior in general," Burgess said she believes that if her discovery requests were granted, she would have uncovered more incriminating evidence.

"Someone's going to have to hold attorneys and hold themselves to higher ethical standards," she said.

Pletcher's attorney, Charles Swanekamp of Jaeckle Fleischmann & Mugel LLP, said his client is pleased that the court "vindicated Jay's and his firm's reputation."

"No lawyer should have to respond to allegations without merit," he said.