Preview
ESX-L-004260-23 11/03/2023 Pglof61 Trans ID: LCV20233413866
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Nov -3
Aakash Dalal
SBI# 792652E
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
October 19, 2023
VIA CERTIFIED U.S. MAIL, R.R.R.
Clerk of the Court
Essex County Superior Court
50 W. Market Street
Newark, NJ 07102
RE: Filing of Motion
Aakash Dalal v. ViaPath Technologies, Inc.
Docket No.: ESX-L-004260-23
Dear Clerk:
Please find enclosed for filing in the above-referenced matter one
copy of the following documents:
1 Notice of Motion to Reinstate Complaint
2 Certification of Plaintiff
3 Proposed Order
4 Certification of Service
Filing fees have been waived in the matter.
PI 1 lease upload the motion to eCourts because I am present!
incarcerated and cannot do so myself.
Thank you.
Respectfully submitted:
oe
Plaintiff, pro se
Enc.
ESX-L-004260-23 11/03/2023 Pg2of61 Trans ID: LCV20233413866
Aakash Dalal
SBI# 792652E
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff, pro se
SUPERIOR COURT OF NEW JERSEY
AAKASH DALAL, ESSEX COUNTY VICINAGE
LAW DIVISION — CIVIL PART
Plaintiff,
Docket No.: ESX-L-4260-23
Vs.
CIVIL ACTION
VIAPATH TECHNOLOGIES, INC, et al.,
NOTICE OF MOTION TO
Defendant. REINSTATE THE COMPLAINT
AND FOR RELIEF FROM ORDER
DISMISSING COMPLAINT
To Clerk of the Court Aaron Van Nostrand, Esq.
Essex County Superior Court Greenberg Traurig, LLP
50 W. Market Street 500 Campus Drive, Suite 400
Newark, NJ 07102 Florham Park, NJ 07932
PLEASE TAKE NOTICE that on a date to be determined by the Court, the
undersigned Plaintiff will move before the Honorable Richard T. Sules, J.S.C. at Essex
County Vicinage of the Superior Court of New Jersey at 50 W. Market Street in Newark,
New Jersey pursuant to R. 4:50-1 for an order reinstating his Complaint for good cause or
alternatively, modifying the October 6, 2023 Order dismissing the complaint with
prejudice to reflect that it was opposed.
PLEASE TAKE FURTHER NOTICE that Plaintiff will rely on his annexed
Certification in support of this motion.
PLEASE TAKE FURTHER NOTICE that a proposed Order has been annexed.
PLEASE TAKE FURTHER NOTICE that pursuant to R, 1:6-2(c), Plaintiff
waives oral argument and requests that this Motion be decided on the papers.
DISCOVERY END DATE: None
ESX-L-004260-23 11/03/2023 Pg3of61 Tr 3413866
PRETRIAL CONFERENCE DATE: None
ARBITRATION DATE: None
TRIAL DATE: None
Respectfully submitted:
SBI# 792652E
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff, pro se
Dated: October 19, 2023
ESX-L-004260-23 11/03/2023 Pg 4of61 Trans ID: LCV20233413866 |
Aakash Dalal
SBI# 792652E
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff, pro se
SUPERIOR COURT OF NEW JERSEY
AAKASH DALAL, LAW DIVISION — CIVIL PART
ESSEX VICINAGE
Plaintiff, Docket No.: ESX-L-4260-23
Vs. CIVIL ACTION
VIAPATH TECHNOLOGIES, INC., et al., Certification of Service
Defendant.
The undersigned states as follows:
1 Iam the Plaintiff in the above-captioned matter and have full knowledge of
the facts herein.
Pursuant to R. 1:5-3, I served the enclosed documents along with this
document, via regular United States mail, on the Clerk of the Essex Vicinage
of the Superior Court of New Jersey and all counsel of record.
I certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are wilfully false, I am subject to punishment.
Respectfully submitted:
Aakash Balal —~
Lal
Dated: October 19, 2023
ESX-L-004260-23 11/03/2023 Pg5of61 Trans iD: LCV20233413866 ©
Aakash Dalal
SBI# 792652E
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff, pro se
SUPERIOR COURT OF NEW JERSEY
AAKASH DALAL, ESSEX COUNTY VICINAGE
LAW DIVISION — CIVIL PART
Plaintiff,
Docket No.: ESX-L-4260-23
Vs.
CIVIL ACTION
VIAPATH TECHNOLOGIES, INC. et al.,
CERTIFICATION IN SUPPORT OF
Defendant. MOTION TO REINSTATE THE
COMPLAINT AND RELIEF FROM
ORDER DISMISSING THE
COMPLAINT
Plaintiff Aakash Dalal states as follows:
I am the Plaintiff in this matter and have full knowledge of all the facts herein. I
submit this certification in support of my motion to reinstate the Complaint in this
matter.
On October 6, 2023, the Hon. Richard T. Sules, J.S.C. granted Defendants
ViaPath Technologies, Inc.’s and Global Tel*Link Corporation’s motion to
dismiss the complaint with prejudice as unopposed and on res judicata grounds.
The purpose of this motion is to request that the Court vacate its order dismissing
the complaint or alternatively, modify its order to reflect that it was opposed.
I had repeatedly and timely mailed an opposition brief for filing to the Essex
County Superior Court, but the brief was never uploaded by court staff to eCourts.
Because | am presently incarcerated at the South Woods State Prison, I cannot
access eCourts and upload any documents. My only option for filing documents is
meee
ESX-L-004260-23 11/03/2023
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to mail them to the court and then call the court to determine whether they have
been filed.
On September 8, 2023, I mailed the brief via first-class U.S. mail to the Essex
County Superior Court. A true copy of the cover letter and accompanying
opposition briefis appended as Exhibit “1”.
On September 19, 2023, I called the court’s Civil Division at (973) — 776 — 9300
ext. 56800 and left a message requesting that the brief be uploaded to eCourts.
That same day, I also called the Court’s chambers at (973) — 776 — 9627 and
requested an adjournment because it was not clear whether court staff had
uploaded the brief. The Court’s secretary advised me that the brief was not on
eCourts. I also called defense counsel Aaron Van Nostrand, who consented to the
adjournment. I again mailed a copy of the brief to the Essex County Superior
Court. A true copy of the cover letter accompanying the second mailing is
appended as Exhibit “2”.
On September 28, 2023, I again called the court’s Civil Division and lefta
message requesting that the opposition brief be uploaded to eCourts.
On October 2, 2023, I called the Civil Division yet again at (973) — 776 — 9300
ext. 57110 and was informed that the brief had not been uploaded to eCourts and
that I should sign up for eCourts. I was informed that mail goes to the “central
mailroom” and is then “dispersed to teams”. Again, because I am in prison, |
cannot access the Internet and therefore cannot sign up for eCourts.
R. 4:50-1(a) provides that “the court may relieve a party or the party’s legal
representative from a final judgment or order for the following reasons: (a)
oe
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mistake, inadvertence, surprise, or excusable neglect...” Additionally, the
Supreme Court has held that a motion under R. 4:50-1 “should be guided by
equitable principles...” Housing Auth. of Township of Morristown vy. Little, 135
N.J. 274, 283 (1994).
10. The failure to upload my opposition brief to eCourts given my pro se and
incarcerated status could reasonably be interpreted as a mistake or inadvertence
by court staff sufficient warrant relief.
11 In addition, it has been well established that prisoners “retain right of access to the
courts.” Jenkins v. Fauyer, 108 N.J. 239, 246 (1987). This right is guaranteed by
both the First and Fourteenth Amendments to the United States Constitution and
Article 1, Paragraph 1 of the New Jersey Constitution. State in Interest of D.H.,
139 N.J. Super. 330, 334 (App. Div. 1976) (“It would appear that even though the
right of access to the courts is not specifically guaranteed by the New Jersey
Constitution, it is a natural and inalienable right derived from Article 1.”)
12. By refusing to upload my filings to eCourts and refusing to accept my paper
filings, court staff have effectively and unconstitutionally shut the courthouse
doors to me. The violation of this fundamental right should also warrant relief
from the order.
I certify that the foregoing statements made by me are true. | am aware that if any
of the foregoing statements made by me are willfully false, I am subject to punishment.
BEAL
‘Aakashdalak~
Plaintiff, pro se
Dated: October 19, 2023
ee
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EXHIBIT “1”
ESX-L-004260-23 11/03/2023 Pg 9 of 61 Trans | 866
Aakash Dalal
SBI# 792652E
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
September 8, 2023
VIA U.S. MAIL
Clerk of the Court — Civil Division
Essex County Superior Court
470 Martin Luther King, Jr. Blvd.
Newark, NJ 07102
RE: Filing of Brief and Documents
Aakash Dalal v. ViaPath Technologies, Inc.
Docket No.: ESX-L-4260-23
Dear Clerk:
Please find enclosed for filing in the above-referenced matter one
copy of the following documents and please upload the documents to
eCourts because I am currently incarcerated:
Request for Adjournment
Plaintiffs Brief in Opposition to Defendants’ Motion to
Dismiss the Complaint
Certification of Plaintiff & Exhibits
Certification of Service
Amended R. 4:5-1(b)(2) Certification
Thank you for your assistance with this matter.
Respectfully submitted:
Plaintiff, pro se
Enc.
= oe
ESX-L-004260-23 11/03/2023 Pg 10 of 61 Trans | V202334138
Aakash Dalal
SBI# 792652E
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff, pro se
September 8, 2023
VIA U.S. MAIL
Hon. Richard T. Sules, J.$.C.
Essex County Superior Court
465 Martin Luther King, Jr. Blvd.
Newark, NJ 07102
RE Request for Adjournment of Defendants’ R. 4:6-2(e) Motion to
Dismiss
Aakash Dalal v. ViaPath Technologies, Inc.
Docket No.: ESX-L-4260-23
Dear Judge Sules:
I am the incarcerated pro se Plaintiff in the above referenced matter. | am
requesting an adjournment of Defendants ViaPath Technologies, Inc.’s and Global
Tel*Link Corporation’s R. 4:6-2(e) September 5, 2023 motion to dismiss the complaint.
To my knowledge, based on the Defendants’ moving papers, the motion is scheduled for
September 22, 2023. The return date is incorrect because under recent amendments to R.
4:6-2, “A motion to dismiss based on defense (e), and any opposition thereto, shall be
filed and served in accordance with the time frames set forth in R. 4:46-1.”
I am requesting an adjournment so that my opposition brief, which is being sent
via mail because I am presently incarcerated, can be timely filed.
Thank you for your attention to this matter.
Respectfully submitted:
cc: Aaron Van Nostrand, Esq.
ESX-L-004260-23 11/03/2023 Pg1lof61 Tr ID: LCV2023
Aakash Dalal
SBI# 792652E
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff, pro se
September 8, 2023
VIA U.S. MAIL
Hon. Richard T. Sules, J.S.C.
Essex County Superior Court
465 Martin Luther King, Jr. Blvd.
Newark, NJ 07102
RE: Plaintiff Aakash Dalal’s Brief in Opposition to Defendants’ Motion to
Dismiss the Complaint and for Attorneys’ Fees
Aakash Dalal v. ViaPath Technologies, Inc.
Docket No.: ESX-L-4260-23
Dear Judge Sules:
Please accept this letter brief in lieu of a more formal brief as Plaintiff Aakash
Dalal’s opposition to the September 5, 2023 Motion to Dismiss the Complaint and for
Attomeys’ Fees of Defendants ViaPath Technologies, Inc. and Global Tel*Link
Corporation (“MTD”). Plaintiff requests an adjournment of the September 22, 2023
motion date so that this brief, which is being mailed, may be filed within time.
PRELIMINARY STATEMENT
Plaintiff previously brought a class action opt out suit against Defendant Global
Tel*Link Corporation (“GTL”), a provider of telecommunications services to jails and
prisons throughout the United States, for violations of the New Jersey Consumer Act
because the company charged him excessive fees in order to make telephone calls from
the Bergen County Jail. See Dalal v. Global Tel*Link Corporation, ESX-L-7456-20;
Certification of Plaintiff, Exhibit 2. In a disturbing development, November 2021
eee —e—
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discovery disclosures in that case revealed that GTL and its successor ViaPath
Technologies, Inc. (““ViaPath”) recorded at least 37 phone calls between Plaintiff and his
attorneys and disclosed them to law enforcement. Based on this revelation, Plaintiff
moved to file a First Amended Complaint in that matter adding new causes of action for
violations of the federal and state Wiretap Acts, violations of the United States and New
Jersey Constitutions, and invasion of privacy. On March 6, 2022, the Hon. Stephen
Petrillo, J.A.D. (then J.S.C.) stated that he was inclined to grant the motion, but oral
argument was adjourned due to a logistical issue at the South Woods State Prison. Pl.
Cert., Exh. 3 (Motion to Reinstate Complaint in ESX-L-7456-20). No further hearings
were scheduled in that matter and the motion was never heard or ruled upon. Jd, See
ESX-L-7456-20 docket.
Due to the failure of the Superior Court to adjudicate the motion, on June 26,
2023 Plaintiff filed this civil action for claims arising out of Defendants’ illegal
interception, recording, and disclosure of his attorney-client privileged telephone calls.
On August 14, 2023, ESX-L-7456-20 was dismissed with prejudice for failure to appear
at trial. Subsequently, Plaintiff moved to reinstate the matter, as he did not have notice of
the “trial date”, and that motion remains pending. Pl. Cert., Exh. 3.
Defendants have now moved to dismiss the Complaint at bar supported by a brief
riddled with misrepresentations, contradictions, and inappropriate factual disputes. They
first claim there is a “lack of evidence” Plaintiff's attorney-client calls were recorded,
MTD at 8, then claim all of Plaintiff's calls were recorded, id. at //, and finally argue
that Plaintiff had “knowledge of the recording.” Jd. at /2. For the reasons that follow, it is
ESX-L-004260-23 11/03/2023 Pg 13 o0f61 Trans ID: LCV20233413866
submitted that the Defendants’ motion is factually and legally flawed and should be
denied.
Finally, it bears mention that Defendants and their Greenberg Traurig, LLP
attorneys are serial abusers of the judicial system. Defendant GTL changed its name to
ViaPath Technologies, Inc. after negative publicity arising out of a $66 million settlement
and a federal judge’s finding “by clear and convincing evidence that GTL intentionally
provided false information in the course discovery, falsely verified interrogatory answers,
and provided false testimony via the vehicle of [a] deposition.” Githieya v. Global
Tel*Link Corporation, Civ. No.: 15-cv-986-AT, 2020 U.S. Dist. LEXIS 222628 *56
(N.D. Ga. November 30, 2020); * 92 (“GTL purposefully manipulated evidence and
discovery to hide the truth from Plaintiffs and the Court.”)
STATEMENT OF FACTS
Plaintiff incorporates the facts in his Complaint by reference as if they were fully
set forth herein.
LEGAL ARGUMENT
RES JUDICATA DOES NOT APPLY BECAUSE THERE WAS NO
ADJUDICATION ON THE MERITS IN ANY PREVIOUS ACTIONS
AND BECAUSE THE CAUSES OF ACTION ARE NOT IDENTICAL
TO THOSE IN ANY PREVIOUS LAWSUIT
Defendants present a distorted argument, replete with misleading statements of
law and fact, claiming that res judicata requires the dismissal of the Complaint. MTD at
4-5. To make it clear, no claims in ESX-L-7456-20 were ever adjudicated on the merits
and the matter was dismissed for failure to appear at trial rather than any substantive
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grounds. Plaintiff has filed a motion to reinstate the Complaint in that matter and for
relief from the order pursuant to R. 4:50-1. Pl. Cert., Exh. “3”. Most importantly, the
claims here are separate and distinct from the claims in ESX-L-7456-20 and not identical
as required for a dismissal of this action under the doctrine of res judicata.
Application of res judicata “requires substantially similar or identical causes of
action and issues, parties, and relief sought,” as well as a final judgment. Wadeer v. New
Jersye Mfrs. Ins. Co., 220 N.J. 591, 606 (2015). The principle “contemplates that when a
controversy between parties is once fairly litigated and determined it is no longer open to
relitigation.” Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960).
Whether the causes of action are identical depends on:
“(1) whether the acts complained of and the demand for relief are the same (that
is, whether the wrong for which redress is sought is the same in both actions); (2)
whether the theory of recovery is the same; (3) whether the witnesses and
documents necessary at trial are the same (that is, whether the same evidence
necessary to maintain the second action would have been sufficient to support the
first); and (4) whether the material facts alleged are the same.”
Wadeer, 220 N.J. at 606.
This action concerns the Defendants’ unlawful interception, recording, and
disclosure of attorney-client privileged telephone calls and brings claims for violations of
the United States Constitution, the New Jersey Constitution, federal and state anti-
wiretapping laws, invasion of privacy and negligence. The previous action was limited to
Plaintiff's claim that Defendant GTL charged pretrial detainees excessive amounts of
money for telephone calls. See Pl. Cert., Exh. “2” (Complaint in ESX-L-7456-20).
The best evidence that these cases and causes of action are separate and distinct is
Defendant GTL’s own argument in support of its opposition to Plaintiffs motion for
leave to amend in ESX-L-7456-20: “Through this motion to amend, however, Plaintiff is
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attempting to change the entire nature of this case by asserting numerous claims based
upon an unfounded allegation that GTL improperly recorded calls with his attorneys
between 2012 and 2017.” And while this civil action also brings claims under the New
Jersey Consumer Fraud Act and for unjust enrichment, these claims are based on
Defendants’ failure to use the fees it charged to implement features in its software to
ensure that attorney-client privileged telephone calls would not be intercepted, recorded,
and disclosed. See Complaint at § 45 (“ViaPath and GTL had an obligation to implement
features in the OCS system that would separate detainees’ attorney-client phone calls from
other phone calls. ViaPath and GTL declined to implemental such a feature in order to
maximize their profits by saving the costs of designing and utilizing such a function.”).
Clearly, the claims are not identical and res judicata does not apply.
The Appellate Division has rejected the exact misleading res judicata argument
raised by Defendants here suggesting that R. 4:37-2(d) renders the dismissal of ESX-L-
7456-20 an adjudication on the merits. Walker v. Choudhary, 425 N.J. Super. 135
(App.Div.), certif, denied, 211 N.J. 274 (2012). The defendants there argued that the
dismissal with prejudice in that case was an adjudication on the merits pursuant to R.
4:37-2(d). The Appellate Division rejected the argument, holding, “Rule 4:37-2 applies to
trials, and subsections (b) and (c) concern dismissals after the presentation of evidence
and for claims related to contribution. This case was not tried; therefore, Rule 4:37-2 has
no bearing on the issues presented.” Id. at 151-152.
Judge Moore dismissed ESX-L-7456-20 with prejudice “for failure to appear for
trial.” Van Nostrand Cert., Exh. C. While this order was patently improper and is
presently being contested, it does not constitute a dismissal on the merits. As the
Appellate Division noted in Walker, “to label such an order as an adjudication on the
ESX-L-004260-23 11/03/2023Pg 16 of 61 Trans ID: 2334
merits would be the embodiment of promoting form over substance.” Walker, 425 N.J.
Super. at 154.
The Defendants’ res judicata argument is meritless and should be rejected because
the causes of action in the Complaint in this matter are distinct from the claims in ESX-L-
7456-20 and there has never been a final adjudication on the merits as to these claims.
I. PLAINTIFF DID NOT VIOLATE R. 4:5-1(b)(2) BECAUSE HE
EXPLICITLY INFORMED THE COURT OF WHAT THE
DEFENDANTS CLAIM IS A RELATED ACTION
The Defendants frivolously argue that Plaintiff violated R. 4:5-1(b)(2) “by not
disclosing the First Action asserting the exact same claims as those asserted here.!” MTD
at 5-6. Clearly, Plaintiff informed the court of the civil action against GTL in the exact
same document that Defendants cite to support its frivolous argument:
“19, On October 16, 2020, after timely opting out of the settlement, Plaintiff file{d] a
civil action against GTL in the Superior Court of New Jersey, Essex Vicinage raising
violations of the New Jersey Consumer Fraud Act based on the same matter in the
class action lawsuit. Aakash Dalal v. Global Tel*Link Corporation, Docket No.:
ESX-7456-20.”
Complaint at § 19.
More importantly, Plaintiff explicitly informed the court of this action in his Civil
Case Information Statement which was filed simultaneously with the Complaint:
“Related Cases Pending? Yes
If “Yes,” list docket numbers
ESX-7456-20”
The language near the end of the Complaint (page 21) was an oversight and
Plaintiff has now submitted an amended certification along with this brief for filing.
' As noted in Point I, the claims asserted in the excessive fees lawsuit (ESX-L-7456-20) are
different from the claims asserted in this lawsuit based on Defendants’ unlawful interception and
recording of attorney-client privileged telephone calls.
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R. 4:5-1(b)(2) provides that, “A successive action shall not, however, be
dismissed for failure of compliance with this rule unless the failure of compliance was
inexcusable and the right of the undisclosed party to defend the successive action has
been substantially prejudiced by not having been identified in the prior action.” Here, the
previous action was in fact disclosed to the court in both the Complaint and the Civil
Case Information Statement and the latter document is used by the court to determine
whether to consolidate any cases. The Defendants specious argument for dismissal and
for attorneys’ fees should therefore be rejected.
Il. PLAINTIFF’S NEW WIRETAP ACT AND CONSTITUTIONAL
CLAIMS ARE FACTUALLY SUPPORTED
Neglecting both the standards that govern R. 4:6-2(e) motions to dismiss and the
facts stated in Plaintiff's Complaint, Defendants argue that Plaintiff's claims lack any
factual basis. M7D at 6-/3. It is submitted that Plaintiff has set forth sufficient facts in his
Complaint to support his claims for violations of the federal and state Wiretap Acts,
violations of the United States and New Jersey Constitutions, and tort claims and that
consequently, the Defendants’ motion should be denied.
R. 4:6-2(e) motions to dismiss “should be granted in only the rarest of instances.”
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). In evaluating
such motions, courts must “assume the facts as asserted by plaintiff are true and give
[him] the benefit of all inferences that may be drawn in [his] favor.” Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). “It is the existence of the fundament of
a cause of action in those documents that is pivotal; the ability of the plaintiff to prove its
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allegations is not at issue.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165-66, 183
(2005).
The facts set forth in the Complaint show that (1) New Jersey regulations and the
Bergen County Sheriff’s Office’s (“BCSO”) policies prohibit the monitoring and
recording of attorney-client calls at county jails (Complaint at {] 22-28); (2) Plaintiff
never consented to the monitoring or recording of his attorney-client calls (Complaint at
44 29-30); (3) Plaintiff discovered on November 2, 2021, through discovery materials,
that GTL advised the BCSO that, “All call recording is part of the proposed [Offender
Communication System]. The OCS does not make use of external recording devices to
perform recording. The recorded conversations, whether inmate calls or visitation calls, are
associated to the actual call data.” (Complaint at § 20-21); (4) the actual call data, disclosed
by GTL in discovery, contains 37 of Plaintiff's calls to his attorneys (Complaint at { 30);
(5) GTL boasted that its software allows law enforcement to monitor, listen to, and
download all calls (Complaint at § 33); and (6) GTL actually recorded 37 calls between
Plaintiff and his attorneys (Complaint at §§ 41-42).
Defendants ignore the R. 4:6-2(e) standard and surmises that “Plaintiff appears to
rely on two sources of information...”, MTD at 7, presents the Court with selected
excerpts and pages from discovery materials, asks the Court to assume that Plaintiff
relied on these particular items, and then claims these excerpts do not support Plaintiff's
claims. This is the epitome of a strawman argument and should be rejected by the Court.
The facts in the First Amended Complaint are the only material the Court should consider
in its determination of this motion.
Defendants’ statement that “recorded conversations ... are associated to actual
call data” and the call data itself, which includes attorney-client calls, gave Plaintiff
eee
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ufficient reason to believe that such calls were recorded. Defendants provide the Court
with only the first page of the call detail records it disclosed to Plaintiff and claims,
“Nothing in the call log supports Plaintiff's allegation that his calls with his attorneys
were recorded.” Van Nostrand Cert., Exh. A; MTD at 8. Plaintiff has provided the Court
with the first three pages of the call detail records and marked the attorney-client calls
with arrows. P/. Cert. at Exhibit “J”. What the call detail records demonstrate is that
Defendants ViaPath and GTL could not differentiate between those attorney-client calls
and regular calls made by Plaintiff further indicating that such calls were recorded by the
Defendants.
Defendants finally argue that they made a statement in their response to a request
for proposal to Bergen County indicating that they would protect the attorney-client
privilege”. There is no evidence indicating that Defendants ViaPath and GTL actually did
anything to separate attorney-client calls from any other calls. In reality, the call detail
records demonstrate that Defendants’ software did not have any functions that would
segregate attorney-client calls from regular calls or determine which phone numbers were
associated with attorneys or friends and family members of a detainee. (Complaint at §§
35-36). Had Defendants implemented such functionality in their software, they would not
have hesitated to bring it to the Court’s attention.
? GTL’s response to the RFP states as follows:
“41. Vendor must have the capability to provide digital call recording that can meet the
following requirements: a. Record all inmate placed calls. VENDOR RESPONSE: We
offer you the flexibility to record calls for a specific inmate, a specific phone number, a
specific phone, a specific group of phones, all calls in progress, selected calls in progress,
groups of inmates, groups of phone numbers or each and every call, all the while
protecting attorney-client privileges.” Van Nostrand Cert., Exh. “B” at 100.
a
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I. PLAINTIFF’S CLAIMS ARE NOT BARRED BY CONSENT OR LAW
ENFORCEMENT EXCEPTIONS TO THE WIRETAP ACT
Relying on mischaracterizations of a series of inapposite federal criminal cases,
Defendants argue that Plaintiff's proposed claims are futile because (1) the law
enforcement exception to the Wiretap Act applies and (2) Plaintiff purportedly consented
to the recording of his attorney-client privileged phone calls. MTD at III(C). Both
arguments are meritless. Every single case Defendants ViaPath and GTL rely on
concerns the recording of prisoners calls with friends, codefendants, or coconspirators’.
None concern the recording of calls between prisoners or pretrial detainees and their
attorneys and many of the decisions indicate that such calls are in fact protected by the
Constitution and the Wiretap Act.
Given Defendants’ suggestion that pretrial detainees have no reasonable
expectation of privacy in their calls with their attorneys, Plaintiff first addresses his
Fourth Amendment and Article 1, Paragraph 7 claims. Plaintiff then addresses the law
3 Defendants cites a series of irrelevant decisions, which held that inmates had no
reasonable expectation of privacy in their jailhouse calls to their friends, codefendants,
and coconspirators, and that such calls fell within the law enforcement and consent
exceptions to the Wiretap Act. None of the decisions concern calls between inmates and
their attorneys and some of the decisions explicitly note that their analyses do not cover
such calls. United States v. Van Poyck, 77 F.3d 285, 291 (9"" Cir. 1996) (calls between
defendant and his friends; “This analysis does not apply to properly placed telephone
calls between a defendant his attorney.”); United States v. Feekes, 879 F.2d 1562, 1566
(7" Cir. 1989) (“The regulations of the Bureau of Prisons authorized the tape recording of
all prisoner calls except to prisoners’ lawyers, and Baltazar Lopez’s calls to his son were
recorded in accordance with this routine, which was the “ordinary course” for the
officers.”); United States v. Willoughby, 860 F.2d 15, (2 Cir. 1988) (calls between
defendant and his co-defendant; ruling prisoners “had no reasonable expectation of
privacy in their calls to nonattorneys on institutional telephones.”); United States v. Horr,
963 F.2d 1124, 1126 (8" Cir. 1992) (calls between defendant and undercover FBI agent);
United States v. Hammond, 286 F.3d 189 (4"" Cir. 2002) (calls between defendant and
witness); United States v. Lanoue, 71 F.3d 966, 971 (1° Cir. 1995) (calls between
criminal defendant and co-conspirator were suppressed, noting, “Deficient notice will
almost always defeat a claim of implied consent.”).
10
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enforcement exception to the Wiretap Act and Defendants’ claims that Plaintiff somehow
consented to the recording and disclosure of 37 calls between himself and his attorneys. It
should be noted that Defendants have failed to address Plaintiff's claims under the First
and Sixth Amendments to the United States Constitution (Counts II] and IV) and claims
under corresponding provisions of the New Jersey Constitution brought pursuant to the
New Jersey Civil Rights Act (Counts VII and VIII).
A Fourth Amendment and Article 1, Paragraph 7 (Counts V and VI)
Defendants ViaPath and GTL never reference the Fourth Amendment or Article
1, Paragraph 7 in their brief, but suggest that pretrial detainees lack a reasonable
expectation of privacy in their telephone calls with their attorneys‘. Just recently, the
New Jersey Supreme Court confirmed that, “Monitoring of an arrestee's call to a lawyer
is constitutionally forbidden, regardless of notice.” State v. McQueen, 248 N.J. 26, 50 n.
12 (2021) (citing State v. Sugar, 84 N.J. 1, 13 (1980)). “An arrestee cannot be given the
unpalatable choice of speaking with an attorney in the unwelcome presence of a police
officer or on a recorded line, or not speaking with an attorney at all.” Id. Here, Plaintiff
was not a prisoner at the timeframe set forth in the Complaint, but rather, a pretrial
detainee, who was presumed to be innocent and had a constitutionally guaranteed right
and necessity to consult with his attorneys regarding his impending trial. “The
4 At the outset, Defendants misrepresent the decision in Young v. Department of Public
Safety & Correctional Services, 2015 U.S. Dist. LEXIS 82526 (D. Md. June 24, 2015),
which had nothing to do with the recording of attorney-client calls, and where an inmate
filed suit over the disclosure of his disciplinary status to his own attorney. The Court
ruled, “Plaintiff's complaint regarding the release of information regarding his
disciplinary segregation sentence is in essence a claim that his constitutional right to
privacy has been violated. Prisoners ordinarily have no legitimate expectation of
privacy.” Id. at *12 (emphasis added).
lL
ESX-L-004260-23 11/03/2023 Pg 22 of61 TransID: LCV20233413866
warrantless and surreptitious monitoring or recording of calls of an arrestee who is
presumed innocent does not comport with the values of privacy that are prized in our free
society.” Id. at 50-51.
To demonstrate a Fourth Amendment violation, an individual must demonstrate
that he had a “reasonable expectation of privacy” in his communications. Id. at 41-42.
Where GTL inadvertently recorded attorney-client calls at a jail in California, a District
Court determined the Fourth Amendment had been violated and held, “[I]t is clearly
established that pretrial detainees have a reasonable expectation of privacy in phone calls
to their attorneys, especially when a prison has an actual policy of not recording or
listening to such calls.” Jayne v. Bosenko, 2014 U.S. Dist. LEXIS 84431 *69 (E.D. Cal.
2014). Under similar circumstances as here, where GTL’s competitor Securus
Technologies, Inc. recorded attorney-client phone calls at another jail, a District Court
found the Fourth Amendment had been violated and held, “Plaintiffs have therefore
properly alleged that attorneys and detainee clients have a reasonable expectation of
privacy in their confidential communications.” Austin Lawyers Guild v. Securus
Technologies, Inc., 2015 U.S. Dist. LEXIS 178047 *36 (W.D. Tex. 2015). See also
Lonegan v. Hasty, 436 F. Supp. 2d 419, 434-36 (E.D.N.Y. 2006) (9/11 detainees had
reasonable expectation of privacy in their attorney-client communications at federal jail)
New Jersey’s Supreme Court has “construed Article I, Paragraph 7 of our State
Constitution more broadly than its Fourth Amendment counterpart in ensuring a person's
reasonable expectation of privacy from untoward government intrusion, particularly
within the sphere of telecommunications.” McQueen, supra, 248 N.J. at 42. Therefore,
where a reasonable expectation of privacy has been found under the Fourth Amendment,
12
ESX-L-004260-23 11/03/2023 Pg 23 of61 Trans ID: LCV20233413866
it certainly exists under Article 1, Paragraph 7. Here, Plaintiff was led to believe that his
attorney-client phone calls would not be recorded by both the Bergen County Sheriff's
Office’s Inmate Handbook and state regulations. Given this information and the
sacrosanct nature of the attorney-client privilege, Plaintiff had a reasonable expectation of
privacy in his communications with his attorneys, as every Court that has considered this
particular issue under these circumstances has found. Lanza v. State of New York, 370
U.S. 139, 143-44 (1962) (“{I]t may be assumed that even in ajail, or perhaps especially
there, the relationships which the law has endowed with particularized confidentiality
must continue to receive unceasing protection.”)
B. The law enforcement exception to the Wiretap Act is inapplicable because
law enforcement officers do not ordinarily record and monitor attorney-
client calls.
Defendants ViaPath and GTL argue that the law enforcement exception to the
federal and state Wiretap Acts bars Plaintiffs claims under those laws. MTD at 9-10. 18
U.S.C. § 2510(5)(a)(ii) exempts interceptions “by an investigative or law enforcement
officer in the ordinary course of his duties.” Given the Bergen County Sheriff's Office’s
regulations and New Jersey state law, it is apparent that law enforcement officials in this
state and particularly at the Bergen County Jail cannot monitor or record attorney-client
calls in the ordinary course of their duties. In fact, the Bergen County Sheriff's Office
explicitly stated in its inmate handbook that, in accordance with New Jersey law, it does
not record or monitor attorney-client calls.
Confronted with the exact same fact pattern here—the recording of attorney-client
calls at a jail, Via Path’s and GTL’s competitor Securus Technologies argued that the law
enforcement exception to the Wiretap applied. Austin Lawyers Guild v. Securus
13
ESX-L-004260-23 11/03/2023” Pg 24 of61 TransID: LCV20233413866
Technologies, Inc., 2015 U.S. Dist. LEXIS 178047 *27-28 (W.D. Tex. 2015). The
District Court there rejected that argument. Id. at * 30-31. The Court noted that
“Plaintiffs allege that [Travis County Sheriff’s Office]’s policies bar recording of
onfidential attorney-client telephone conversations,” and therefore “recording
confidential attorney-client telephone conversations is not ... within the Travis County
Defendants’ law enforcement duties.” Id. at *31; Lonegan v. Hasty, 436 F. Supp. 2d 419,
432 (E.D.N.Y. 2006) (“[I]n the prison setting, attorney-client communications generally
are distinguished from other kinds of communications and exempted from routine
monitoring.”)
Every decision cited by Defendants ViaPath and GTL applying this exemption to
jailhouse calls is limited to calls between inmates and their friends, codefendants, and
coconspirators. None of the decisions concern attorney-client calls. For example,
Defendants cite United States v. Rivera, 292 F. Supp. 2d 838 (E.D. Va. 2003) for the
proposition that its recordings fell under the law enforcement exception, however, there,
the Court was careful to note that “The government does not seek to admit any calls made
to an attorney. Thus, the evidence does not raise any issue regarding the attorney-client
privilege.” Id. at 841 n.6. GTL also cites Van Poyck, but as previously noted, there, “Van
Poyck called a number of his friends and made more incriminating statements.” Van
Poyck, supra, 77 F.3d at 287. The 9" Circuit expressly noted, “This analysis does not
apply to properly placed telephone calls between a defendant an his attorney, which the
MDC does not record or monitor.” Id. at 291 n. 9.
14
oe
ESX-L-004260-23 11/03/2023 Pg 25 of 61 Trans ID: LCV202 33413866
Cc. Plaintiff did not consent to the recording of his attorney-client calls.
Without any competent evidence and contrary to the facts stated in the Complaint,
Defendants ViaPath and GTL preposterously claim that Plaintiff consented to the
interception, recording, and disclosure of 37 calls between himself and his attorneys
while he was awaiting trial on serious charges. The Complaint explicitly states, “Plaintiff
never consented to the monitoring, recording, or disclosure of his attorney-client
communications and calls.” Complaint at § 30. The facts also show that not only did
Plaintiff not have notice that his attorney-client calls were recorded, he was repeatedly
informed by the Bergen County Sheriff's Office that his attorney-client calls would not
be monitored or recorded. Jd. at § 25-27. Furthermore, ViaPath and GTL publicly
maintain that they do not record attorney-client calls. /d. at § 28.
In the face of these facts, Defendants claim, “Bergen County inmates, including
Plaintiff, were notified that their calls were recorded and monitored in at least two ways.”
MTD at 11. The New Jersey Supreme Court’s decision in McQueen forecloses the
argument that implied consent based on notice bars Plaintiff's claims here. McQueen,
supra, 248 N.J. at 50 n. 12 (“Monitoring of an arrestee's call to a lawyer is
constitutionally forbidden, regardless of notice.”). Defendants cite no evidence that
Plaintiff provided explicit consent in any form or that it required such consent for the use
of its telephone system.
First, by misleadingly quoting a requirement in Bergen County’s Request for
Proposal, Defendants claim they “provide[d] appropriate signage at each inmate
telephone location in accordance with established Federal, State, and Facility guidelines
to notify inmates that the system may recorded all telephone calls for security purposes.”
15
ee
ESX-L-004260-23 11/03/2023" Pg 26 of61 Trans ID: LCV20233413866
Initially, there is no evidence that ViaPath and GTL actually provided any signage. Most
importantly, however, State and Facility guidelines explicitly prohibit the recording of
attorney-client calls. See FAC at § 10-15; N.J.A.C. 10A:31-21.5(b) (“All inmate
telephone calls may be monitored and recorded except calls to the Internal Affairs Unit
and legal telephone calls.”). Therefore, any signs, if they actually existed, would have
informed Plaintiff that his attorney-client calls would not be recorded.
Defendants also claim, citing a requirement in the RFP, that “at the beginning of
all inmate-initiated calls, ‘the inmate and called party [were] notified that ALL calls are
subject to monitoring and recording.’”. MTD at 11. There is no evidence that such notice
was actually provided to Plaintiff with regard to his attorney-client calls. Defendants
merely informed Bergen County that they would provide such a message in its response
to the RFP. Regardless, any such message would contradict the statements made by the
Bergen County Sheriff's Office, GTL itself, and New Jersey regulations, which made it
clear that attorney-client calls cannot be lawfully monitored or recorded. Finally,
McQueen made it clear the recording of attorney-client calls is unlawful even where such
notice is provided.
It is worth noting that a federal judge determined that GTL fabricated discovery
responses and evidence regarding interactive voice responses at the beginning of
telephone calls, Githieya v. Global Tel*Link Corporation, Civ. No.: 15-cv-986-AT, 2020
USS. Dist. LEXIS 222628 (N.D. Ga. November 30, 2020) (“GTL intentionally provided
false information in the course discovery, falsely verified interrogatory answers, and
provided false testimony via the vehicle of [a] deposition...”).
16
enewsne emeanana oe m
ESX-L-004260-23 11/03/2023 Pg 27 of 61 Trans 1D: LCV20233413866
POINT III: PLAINTIFF’S CLAIMS ARE NOT BARRED BY THE STATUTE
OF LIMITATIONS
Defendants argue that Plaintiffs claims are barred by the statute of limitations
because he purportedly “had a reasonable opportunity to discover the alleged violation
when it allegedly took place.” M7D at / 1-12. Here, Defendants ViaPath and GTL
surreptitiously recorded Plaintiff's attorney-client calls. Plaintiff reasonably believed and
was led to believe, based on New Jersey regulations and the BCSO’s written policies, that
his attorney-client calls would not be recorded. Plaintiffs claims were filed with two
years after he discovered that these calls were recorded through discovery disclosures in
in ESX-L-7456-20 in November 2021. Complaint at § 20-21. Therefore, New Jersey’s
discovery rule and the discovery language set forth in the federal and state Wiretap Acts
make it clear that Plaintiff's claims are timely.
“The discovery rule prevents the statute of limitations from running when injured
parties reasonable are unaware that they have been injured[.]” Caravaggio v. D’ Agostini,
166 N.J. 237, 245-46 (2001). The federal and state Wiretap Acts have built-in discovery
tules. 18 U.S.C. § 2520(e) (“A civil action under this section may not be commenced
late
Preview
ESX-L-004260-23 11/03/2023 Pglof61 Trans ID: LCV20233413866 3 Nov -3 Aakash Dalal SBI# 792652E South Woods State Prison 215 Burlington Road South Bridgeton, NJ 08302 October 19, 2023 VIA CERTIFIED U.S. MAIL, R.R.R. Clerk of the Court Essex County Superior Court 50 W. Market Street Newark, NJ 07102 RE: Filing of Motion Aakash Dalal v. ViaPath Technologies, Inc. Docket No.: ESX-L-004260-23 Dear Clerk: Please find enclosed for filing in the above-referenced matter one copy of the following documents: 1 Notice of Motion to Reinstate Complaint 2 Certification of Plaintiff 3 Proposed Order 4 Certification of Service Filing fees have been waived in the matter. PI 1 lease upload the motion to eCourts because I am present! incarcerated and cannot do so myself. Thank you. Respectfully submitted: oe Plaintiff, pro se Enc. ESX-L-004260-23 11/03/2023 Pg2of61 Trans ID: LCV20233413866 Aakash Dalal SBI# 792652E 215 Burlington Road South Bridgeton, NJ 08302 Plaintiff, pro se SUPERIOR COURT OF NEW JERSEY AAKASH DALAL, ESSEX COUNTY VICINAGE LAW DIVISION — CIVIL PART Plaintiff, Docket No.: ESX-L-4260-23 Vs. CIVIL ACTION VIAPATH TECHNOLOGIES, INC, et al., NOTICE OF MOTION TO Defendant. REINSTATE THE COMPLAINT AND FOR RELIEF FROM ORDER DISMISSING COMPLAINT To Clerk of the Court Aaron Van Nostrand, Esq. Essex County Superior Court Greenberg Traurig, LLP 50 W. Market Street 500 Campus Drive, Suite 400 Newark, NJ 07102 Florham Park, NJ 07932 PLEASE TAKE NOTICE that on a date to be determined by the Court, the undersigned Plaintiff will move before the Honorable Richard T. Sules, J.S.C. at Essex County Vicinage of the Superior Court of New Jersey at 50 W. Market Street in Newark, New Jersey pursuant to R. 4:50-1 for an order reinstating his Complaint for good cause or alternatively, modifying the October 6, 2023 Order dismissing the complaint with prejudice to reflect that it was opposed. PLEASE TAKE FURTHER NOTICE that Plaintiff will rely on his annexed Certification in support of this motion. PLEASE TAKE FURTHER NOTICE that a proposed Order has been annexed. PLEASE TAKE FURTHER NOTICE that pursuant to R, 1:6-2(c), Plaintiff waives oral argument and requests that this Motion be decided on the papers. DISCOVERY END DATE: None ESX-L-004260-23 11/03/2023 Pg3of61 Tr 3413866 PRETRIAL CONFERENCE DATE: None ARBITRATION DATE: None TRIAL DATE: None Respectfully submitted: SBI# 792652E 215 Burlington Road South Bridgeton, NJ 08302 Plaintiff, pro se Dated: October 19, 2023 ESX-L-004260-23 11/03/2023 Pg 4of61 Trans ID: LCV20233413866 | Aakash Dalal SBI# 792652E 215 Burlington Road South Bridgeton, NJ 08302 Plaintiff, pro se SUPERIOR COURT OF NEW JERSEY AAKASH DALAL, LAW DIVISION — CIVIL PART ESSEX VICINAGE Plaintiff, Docket No.: ESX-L-4260-23 Vs. CIVIL ACTION VIAPATH TECHNOLOGIES, INC., et al., Certification of Service Defendant. The undersigned states as follows: 1 Iam the Plaintiff in the above-captioned matter and have full knowledge of the facts herein. Pursuant to R. 1:5-3, I served the enclosed documents along with this document, via regular United States mail, on the Clerk of the Essex Vicinage of the Superior Court of New Jersey and all counsel of record. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment. Respectfully submitted: Aakash Balal —~ Lal Dated: October 19, 2023 ESX-L-004260-23 11/03/2023 Pg5of61 Trans iD: LCV20233413866 © Aakash Dalal SBI# 792652E 215 Burlington Road South Bridgeton, NJ 08302 Plaintiff, pro se SUPERIOR COURT OF NEW JERSEY AAKASH DALAL, ESSEX COUNTY VICINAGE LAW DIVISION — CIVIL PART Plaintiff, Docket No.: ESX-L-4260-23 Vs. CIVIL ACTION VIAPATH TECHNOLOGIES, INC. et al., CERTIFICATION IN SUPPORT OF Defendant. MOTION TO REINSTATE THE COMPLAINT AND RELIEF FROM ORDER DISMISSING THE COMPLAINT Plaintiff Aakash Dalal states as follows: I am the Plaintiff in this matter and have full knowledge of all the facts herein. I submit this certification in support of my motion to reinstate the Complaint in this matter. On October 6, 2023, the Hon. Richard T. Sules, J.S.C. granted Defendants ViaPath Technologies, Inc.’s and Global Tel*Link Corporation’s motion to dismiss the complaint with prejudice as unopposed and on res judicata grounds. The purpose of this motion is to request that the Court vacate its order dismissing the complaint or alternatively, modify its order to reflect that it was opposed. I had repeatedly and timely mailed an opposition brief for filing to the Essex County Superior Court, but the brief was never uploaded by court staff to eCourts. Because | am presently incarcerated at the South Woods State Prison, I cannot access eCourts and upload any documents. My only option for filing documents is meee ESX-L-004260-23 11/03/2023 Pg 6 of 61 Trans ID: LCV2023341 to mail them to the court and then call the court to determine whether they have been filed. On September 8, 2023, I mailed the brief via first-class U.S. mail to the Essex County Superior Court. A true copy of the cover letter and accompanying opposition briefis appended as Exhibit “1”. On September 19, 2023, I called the court’s Civil Division at (973) — 776 — 9300 ext. 56800 and left a message requesting that the brief be uploaded to eCourts. That same day, I also called the Court’s chambers at (973) — 776 — 9627 and requested an adjournment because it was not clear whether court staff had uploaded the brief. The Court’s secretary advised me that the brief was not on eCourts. I also called defense counsel Aaron Van Nostrand, who consented to the adjournment. I again mailed a copy of the brief to the Essex County Superior Court. A true copy of the cover letter accompanying the second mailing is appended as Exhibit “2”. On September 28, 2023, I again called the court’s Civil Division and lefta message requesting that the opposition brief be uploaded to eCourts. On October 2, 2023, I called the Civil Division yet again at (973) — 776 — 9300 ext. 57110 and was informed that the brief had not been uploaded to eCourts and that I should sign up for eCourts. I was informed that mail goes to the “central mailroom” and is then “dispersed to teams”. Again, because I am in prison, | cannot access the Internet and therefore cannot sign up for eCourts. R. 4:50-1(a) provides that “the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons: (a) oe ESX-L-004260-23 11/03/2023 Pg 7 of61 Trans ID: LCV20233413866 mistake, inadvertence, surprise, or excusable neglect...” Additionally, the Supreme Court has held that a motion under R. 4:50-1 “should be guided by equitable principles...” Housing Auth. of Township of Morristown vy. Little, 135 N.J. 274, 283 (1994). 10. The failure to upload my opposition brief to eCourts given my pro se and incarcerated status could reasonably be interpreted as a mistake or inadvertence by court staff sufficient warrant relief. 11 In addition, it has been well established that prisoners “retain right of access to the courts.” Jenkins v. Fauyer, 108 N.J. 239, 246 (1987). This right is guaranteed by both the First and Fourteenth Amendments to the United States Constitution and Article 1, Paragraph 1 of the New Jersey Constitution. State in Interest of D.H., 139 N.J. Super. 330, 334 (App. Div. 1976) (“It would appear that even though the right of access to the courts is not specifically guaranteed by the New Jersey Constitution, it is a natural and inalienable right derived from Article 1.”) 12. By refusing to upload my filings to eCourts and refusing to accept my paper filings, court staff have effectively and unconstitutionally shut the courthouse doors to me. The violation of this fundamental right should also warrant relief from the order. I certify that the foregoing statements made by me are true. | am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. BEAL ‘Aakashdalak~ Plaintiff, pro se Dated: October 19, 2023 ee ESX-L-004260-23 11/03/2023 Pg 8 of 61 Trans| 02334138 EXHIBIT “1” ESX-L-004260-23 11/03/2023 Pg 9 of 61 Trans | 866 Aakash Dalal SBI# 792652E South Woods State Prison 215 Burlington Road South Bridgeton, NJ 08302 September 8, 2023 VIA U.S. MAIL Clerk of the Court — Civil Division Essex County Superior Court 470 Martin Luther King, Jr. Blvd. Newark, NJ 07102 RE: Filing of Brief and Documents Aakash Dalal v. ViaPath Technologies, Inc. Docket No.: ESX-L-4260-23 Dear Clerk: Please find enclosed for filing in the above-referenced matter one copy of the following documents and please upload the documents to eCourts because I am currently incarcerated: Request for Adjournment Plaintiffs Brief in Opposition to Defendants’ Motion to Dismiss the Complaint Certification of Plaintiff & Exhibits Certification of Service Amended R. 4:5-1(b)(2) Certification Thank you for your assistance with this matter. Respectfully submitted: Plaintiff, pro se Enc. = oe ESX-L-004260-23 11/03/2023 Pg 10 of 61 Trans | V202334138 Aakash Dalal SBI# 792652E 215 Burlington Road South Bridgeton, NJ 08302 Plaintiff, pro se September 8, 2023 VIA U.S. MAIL Hon. Richard T. Sules, J.$.C. Essex County Superior Court 465 Martin Luther King, Jr. Blvd. Newark, NJ 07102 RE Request for Adjournment of Defendants’ R. 4:6-2(e) Motion to Dismiss Aakash Dalal v. ViaPath Technologies, Inc. Docket No.: ESX-L-4260-23 Dear Judge Sules: I am the incarcerated pro se Plaintiff in the above referenced matter. | am requesting an adjournment of Defendants ViaPath Technologies, Inc.’s and Global Tel*Link Corporation’s R. 4:6-2(e) September 5, 2023 motion to dismiss the complaint. To my knowledge, based on the Defendants’ moving papers, the motion is scheduled for September 22, 2023. The return date is incorrect because under recent amendments to R. 4:6-2, “A motion to dismiss based on defense (e), and any opposition thereto, shall be filed and served in accordance with the time frames set forth in R. 4:46-1.” I am requesting an adjournment so that my opposition brief, which is being sent via mail because I am presently incarcerated, can be timely filed. Thank you for your attention to this matter. Respectfully submitted: cc: Aaron Van Nostrand, Esq. ESX-L-004260-23 11/03/2023 Pg1lof61 Tr ID: LCV2023 Aakash Dalal SBI# 792652E 215 Burlington Road South Bridgeton, NJ 08302 Plaintiff, pro se September 8, 2023 VIA U.S. MAIL Hon. Richard T. Sules, J.S.C. Essex County Superior Court 465 Martin Luther King, Jr. Blvd. Newark, NJ 07102 RE: Plaintiff Aakash Dalal’s Brief in Opposition to Defendants’ Motion to Dismiss the Complaint and for Attorneys’ Fees Aakash Dalal v. ViaPath Technologies, Inc. Docket No.: ESX-L-4260-23 Dear Judge Sules: Please accept this letter brief in lieu of a more formal brief as Plaintiff Aakash Dalal’s opposition to the September 5, 2023 Motion to Dismiss the Complaint and for Attomeys’ Fees of Defendants ViaPath Technologies, Inc. and Global Tel*Link Corporation (“MTD”). Plaintiff requests an adjournment of the September 22, 2023 motion date so that this brief, which is being mailed, may be filed within time. PRELIMINARY STATEMENT Plaintiff previously brought a class action opt out suit against Defendant Global Tel*Link Corporation (“GTL”), a provider of telecommunications services to jails and prisons throughout the United States, for violations of the New Jersey Consumer Act because the company charged him excessive fees in order to make telephone calls from the Bergen County Jail. See Dalal v. Global Tel*Link Corporation, ESX-L-7456-20; Certification of Plaintiff, Exhibit 2. In a disturbing development, November 2021 eee —e— ESX-L-004260-23 11/03/2023 Pg 12 of61 Trans ID: LCV20233413866 discovery disclosures in that case revealed that GTL and its successor ViaPath Technologies, Inc. (““ViaPath”) recorded at least 37 phone calls between Plaintiff and his attorneys and disclosed them to law enforcement. Based on this revelation, Plaintiff moved to file a First Amended Complaint in that matter adding new causes of action for violations of the federal and state Wiretap Acts, violations of the United States and New Jersey Constitutions, and invasion of privacy. On March 6, 2022, the Hon. Stephen Petrillo, J.A.D. (then J.S.C.) stated that he was inclined to grant the motion, but oral argument was adjourned due to a logistical issue at the South Woods State Prison. Pl. Cert., Exh. 3 (Motion to Reinstate Complaint in ESX-L-7456-20). No further hearings were scheduled in that matter and the motion was never heard or ruled upon. Jd, See ESX-L-7456-20 docket. Due to the failure of the Superior Court to adjudicate the motion, on June 26, 2023 Plaintiff filed this civil action for claims arising out of Defendants’ illegal interception, recording, and disclosure of his attorney-client privileged telephone calls. On August 14, 2023, ESX-L-7456-20 was dismissed with prejudice for failure to appear at trial. Subsequently, Plaintiff moved to reinstate the matter, as he did not have notice of the “trial date”, and that motion remains pending. Pl. Cert., Exh. 3. Defendants have now moved to dismiss the Complaint at bar supported by a brief riddled with misrepresentations, contradictions, and inappropriate factual disputes. They first claim there is a “lack of evidence” Plaintiff's attorney-client calls were recorded, MTD at 8, then claim all of Plaintiff's calls were recorded, id. at //, and finally argue that Plaintiff had “knowledge of the recording.” Jd. at /2. For the reasons that follow, it is ESX-L-004260-23 11/03/2023 Pg 13 o0f61 Trans ID: LCV20233413866 submitted that the Defendants’ motion is factually and legally flawed and should be denied. Finally, it bears mention that Defendants and their Greenberg Traurig, LLP attorneys are serial abusers of the judicial system. Defendant GTL changed its name to ViaPath Technologies, Inc. after negative publicity arising out of a $66 million settlement and a federal judge’s finding “by clear and convincing evidence that GTL intentionally provided false information in the course discovery, falsely verified interrogatory answers, and provided false testimony via the vehicle of [a] deposition.” Githieya v. Global Tel*Link Corporation, Civ. No.: 15-cv-986-AT, 2020 U.S. Dist. LEXIS 222628 *56 (N.D. Ga. November 30, 2020); * 92 (“GTL purposefully manipulated evidence and discovery to hide the truth from Plaintiffs and the Court.”) STATEMENT OF FACTS Plaintiff incorporates the facts in his Complaint by reference as if they were fully set forth herein. LEGAL ARGUMENT RES JUDICATA DOES NOT APPLY BECAUSE THERE WAS NO ADJUDICATION ON THE MERITS IN ANY PREVIOUS ACTIONS AND BECAUSE THE CAUSES OF ACTION ARE NOT IDENTICAL TO THOSE IN ANY PREVIOUS LAWSUIT Defendants present a distorted argument, replete with misleading statements of law and fact, claiming that res judicata requires the dismissal of the Complaint. MTD at 4-5. To make it clear, no claims in ESX-L-7456-20 were ever adjudicated on the merits and the matter was dismissed for failure to appear at trial rather than any substantive ESX-L-004260-23 11/03/2023 Pg 14 of61 Trans ID: LCV20233413866 | grounds. Plaintiff has filed a motion to reinstate the Complaint in that matter and for relief from the order pursuant to R. 4:50-1. Pl. Cert., Exh. “3”. Most importantly, the claims here are separate and distinct from the claims in ESX-L-7456-20 and not identical as required for a dismissal of this action under the doctrine of res judicata. Application of res judicata “requires substantially similar or identical causes of action and issues, parties, and relief sought,” as well as a final judgment. Wadeer v. New Jersye Mfrs. Ins. Co., 220 N.J. 591, 606 (2015). The principle “contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation.” Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960). Whether the causes of action are identical depends on: “(1) whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions); (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.” Wadeer, 220 N.J. at 606. This action concerns the Defendants’ unlawful interception, recording, and disclosure of attorney-client privileged telephone calls and brings claims for violations of the United States Constitution, the New Jersey Constitution, federal and state anti- wiretapping laws, invasion of privacy and negligence. The previous action was limited to Plaintiff's claim that Defendant GTL charged pretrial detainees excessive amounts of money for telephone calls. See Pl. Cert., Exh. “2” (Complaint in ESX-L-7456-20). The best evidence that these cases and causes of action are separate and distinct is Defendant GTL’s own argument in support of its opposition to Plaintiffs motion for leave to amend in ESX-L-7456-20: “Through this motion to amend, however, Plaintiff is ESX-L-004260-23 11/03/2023Pg 15 of61 Trans ID: LCV20233413866 _ attempting to change the entire nature of this case by asserting numerous claims based upon an unfounded allegation that GTL improperly recorded calls with his attorneys between 2012 and 2017.” And while this civil action also brings claims under the New Jersey Consumer Fraud Act and for unjust enrichment, these claims are based on Defendants’ failure to use the fees it charged to implement features in its software to ensure that attorney-client privileged telephone calls would not be intercepted, recorded, and disclosed. See Complaint at § 45 (“ViaPath and GTL had an obligation to implement features in the OCS system that would separate detainees’ attorney-client phone calls from other phone calls. ViaPath and GTL declined to implemental such a feature in order to maximize their profits by saving the costs of designing and utilizing such a function.”). Clearly, the claims are not identical and res judicata does not apply. The Appellate Division has rejected the exact misleading res judicata argument raised by Defendants here suggesting that R. 4:37-2(d) renders the dismissal of ESX-L- 7456-20 an adjudication on the merits. Walker v. Choudhary, 425 N.J. Super. 135 (App.Div.), certif, denied, 211 N.J. 274 (2012). The defendants there argued that the dismissal with prejudice in that case was an adjudication on the merits pursuant to R. 4:37-2(d). The Appellate Division rejected the argument, holding, “Rule 4:37-2 applies to trials, and subsections (b) and (c) concern dismissals after the presentation of evidence and for claims related to contribution. This case was not tried; therefore, Rule 4:37-2 has no bearing on the issues presented.” Id. at 151-152. Judge Moore dismissed ESX-L-7456-20 with prejudice “for failure to appear for trial.” Van Nostrand Cert., Exh. C. While this order was patently improper and is presently being contested, it does not constitute a dismissal on the merits. As the Appellate Division noted in Walker, “to label such an order as an adjudication on the ESX-L-004260-23 11/03/2023Pg 16 of 61 Trans ID: 2334 merits would be the embodiment of promoting form over substance.” Walker, 425 N.J. Super. at 154. The Defendants’ res judicata argument is meritless and should be rejected because the causes of action in the Complaint in this matter are distinct from the claims in ESX-L- 7456-20 and there has never been a final adjudication on the merits as to these claims. I. PLAINTIFF DID NOT VIOLATE R. 4:5-1(b)(2) BECAUSE HE EXPLICITLY INFORMED THE COURT OF WHAT THE DEFENDANTS CLAIM IS A RELATED ACTION The Defendants frivolously argue that Plaintiff violated R. 4:5-1(b)(2) “by not disclosing the First Action asserting the exact same claims as those asserted here.!” MTD at 5-6. Clearly, Plaintiff informed the court of the civil action against GTL in the exact same document that Defendants cite to support its frivolous argument: “19, On October 16, 2020, after timely opting out of the settlement, Plaintiff file{d] a civil action against GTL in the Superior Court of New Jersey, Essex Vicinage raising violations of the New Jersey Consumer Fraud Act based on the same matter in the class action lawsuit. Aakash Dalal v. Global Tel*Link Corporation, Docket No.: ESX-7456-20.” Complaint at § 19. More importantly, Plaintiff explicitly informed the court of this action in his Civil Case Information Statement which was filed simultaneously with the Complaint: “Related Cases Pending? Yes If “Yes,” list docket numbers ESX-7456-20” The language near the end of the Complaint (page 21) was an oversight and Plaintiff has now submitted an amended certification along with this brief for filing. ' As noted in Point I, the claims asserted in the excessive fees lawsuit (ESX-L-7456-20) are different from the claims asserted in this lawsuit based on Defendants’ unlawful interception and recording of attorney-client privileged telephone calls. ESX-L-004260-23 11/03/2023 Pg 17 of 61 'V 20233413866 — R. 4:5-1(b)(2) provides that, “A successive action shall not, however, be dismissed for failure of compliance with this rule unless the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action.” Here, the previous action was in fact disclosed to the court in both the Complaint and the Civil Case Information Statement and the latter document is used by the court to determine whether to consolidate any cases. The Defendants specious argument for dismissal and for attorneys’ fees should therefore be rejected. Il. PLAINTIFF’S NEW WIRETAP ACT AND CONSTITUTIONAL CLAIMS ARE FACTUALLY SUPPORTED Neglecting both the standards that govern R. 4:6-2(e) motions to dismiss and the facts stated in Plaintiff's Complaint, Defendants argue that Plaintiff's claims lack any factual basis. M7D at 6-/3. It is submitted that Plaintiff has set forth sufficient facts in his Complaint to support his claims for violations of the federal and state Wiretap Acts, violations of the United States and New Jersey Constitutions, and tort claims and that consequently, the Defendants’ motion should be denied. R. 4:6-2(e) motions to dismiss “should be granted in only the rarest of instances.” Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). In evaluating such motions, courts must “assume the facts as asserted by plaintiff are true and give [him] the benefit of all inferences that may be drawn in [his] favor.” Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). “It is the existence of the fundament of a cause of action in those documents that is pivotal; the ability of the plaintiff to prove its ESX-L-004260-23 11/03/2023 Pg 18 of61 Trans ID: LCV20233413866 allegations is not at issue.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165-66, 183 (2005). The facts set forth in the Complaint show that (1) New Jersey regulations and the Bergen County Sheriff’s Office’s (“BCSO”) policies prohibit the monitoring and recording of attorney-client calls at county jails (Complaint at {] 22-28); (2) Plaintiff never consented to the monitoring or recording of his attorney-client calls (Complaint at 44 29-30); (3) Plaintiff discovered on November 2, 2021, through discovery materials, that GTL advised the BCSO that, “All call recording is part of the proposed [Offender Communication System]. The OCS does not make use of external recording devices to perform recording. The recorded conversations, whether inmate calls or visitation calls, are associated to the actual call data.” (Complaint at § 20-21); (4) the actual call data, disclosed by GTL in discovery, contains 37 of Plaintiff's calls to his attorneys (Complaint at { 30); (5) GTL boasted that its software allows law enforcement to monitor, listen to, and download all calls (Complaint at § 33); and (6) GTL actually recorded 37 calls between Plaintiff and his attorneys (Complaint at §§ 41-42). Defendants ignore the R. 4:6-2(e) standard and surmises that “Plaintiff appears to rely on two sources of information...”, MTD at 7, presents the Court with selected excerpts and pages from discovery materials, asks the Court to assume that Plaintiff relied on these particular items, and then claims these excerpts do not support Plaintiff's claims. This is the epitome of a strawman argument and should be rejected by the Court. The facts in the First Amended Complaint are the only material the Court should consider in its determination of this motion. Defendants’ statement that “recorded conversations ... are associated to actual call data” and the call data itself, which includes attorney-client calls, gave Plaintiff eee ESX-L-004260-23 11/03/2023 Pg 19 of61 Trans ID: LCV20233413866 — ufficient reason to believe that such calls were recorded. Defendants provide the Court with only the first page of the call detail records it disclosed to Plaintiff and claims, “Nothing in the call log supports Plaintiff's allegation that his calls with his attorneys were recorded.” Van Nostrand Cert., Exh. A; MTD at 8. Plaintiff has provided the Court with the first three pages of the call detail records and marked the attorney-client calls with arrows. P/. Cert. at Exhibit “J”. What the call detail records demonstrate is that Defendants ViaPath and GTL could not differentiate between those attorney-client calls and regular calls made by Plaintiff further indicating that such calls were recorded by the Defendants. Defendants finally argue that they made a statement in their response to a request for proposal to Bergen County indicating that they would protect the attorney-client privilege”. There is no evidence indicating that Defendants ViaPath and GTL actually did anything to separate attorney-client calls from any other calls. In reality, the call detail records demonstrate that Defendants’ software did not have any functions that would segregate attorney-client calls from regular calls or determine which phone numbers were associated with attorneys or friends and family members of a detainee. (Complaint at §§ 35-36). Had Defendants implemented such functionality in their software, they would not have hesitated to bring it to the Court’s attention. ? GTL’s response to the RFP states as follows: “41. Vendor must have the capability to provide digital call recording that can meet the following requirements: a. Record all inmate placed calls. VENDOR RESPONSE: We offer you the flexibility to record calls for a specific inmate, a specific phone number, a specific phone, a specific group of phones, all calls in progress, selected calls in progress, groups of inmates, groups of phone numbers or each and every call, all the while protecting attorney-client privileges.” Van Nostrand Cert., Exh. “B” at 100. a ESX-L-004260-23 11/03/2023 Pg 20 of61 Trans ID: LCV20233413866 I. PLAINTIFF’S CLAIMS ARE NOT BARRED BY CONSENT OR LAW ENFORCEMENT EXCEPTIONS TO THE WIRETAP ACT Relying on mischaracterizations of a series of inapposite federal criminal cases, Defendants argue that Plaintiff's proposed claims are futile because (1) the law enforcement exception to the Wiretap Act applies and (2) Plaintiff purportedly consented to the recording of his attorney-client privileged phone calls. MTD at III(C). Both arguments are meritless. Every single case Defendants ViaPath and GTL rely on concerns the recording of prisoners calls with friends, codefendants, or coconspirators’. None concern the recording of calls between prisoners or pretrial detainees and their attorneys and many of the decisions indicate that such calls are in fact protected by the Constitution and the Wiretap Act. Given Defendants’ suggestion that pretrial detainees have no reasonable expectation of privacy in their calls with their attorneys, Plaintiff first addresses his Fourth Amendment and Article 1, Paragraph 7 claims. Plaintiff then addresses the law 3 Defendants cites a series of irrelevant decisions, which held that inmates had no reasonable expectation of privacy in their jailhouse calls to their friends, codefendants, and coconspirators, and that such calls fell within the law enforcement and consent exceptions to the Wiretap Act. None of the decisions concern calls between inmates and their attorneys and some of the decisions explicitly note that their analyses do not cover such calls. United States v. Van Poyck, 77 F.3d 285, 291 (9"" Cir. 1996) (calls between defendant and his friends; “This analysis does not apply to properly placed telephone calls between a defendant his attorney.”); United States v. Feekes, 879 F.2d 1562, 1566 (7" Cir. 1989) (“The regulations of the Bureau of Prisons authorized the tape recording of all prisoner calls except to prisoners’ lawyers, and Baltazar Lopez’s calls to his son were recorded in accordance with this routine, which was the “ordinary course” for the officers.”); United States v. Willoughby, 860 F.2d 15, (2 Cir. 1988) (calls between defendant and his co-defendant; ruling prisoners “had no reasonable expectation of privacy in their calls to nonattorneys on institutional telephones.”); United States v. Horr, 963 F.2d 1124, 1126 (8" Cir. 1992) (calls between defendant and undercover FBI agent); United States v. Hammond, 286 F.3d 189 (4"" Cir. 2002) (calls between defendant and witness); United States v. Lanoue, 71 F.3d 966, 971 (1° Cir. 1995) (calls between criminal defendant and co-conspirator were suppressed, noting, “Deficient notice will almost always defeat a claim of implied consent.”). 10 _ ESX-L-004260-23 11/03/2023 Pg 21 of61 Trans ID: LCV20233413866 enforcement exception to the Wiretap Act and Defendants’ claims that Plaintiff somehow consented to the recording and disclosure of 37 calls between himself and his attorneys. It should be noted that Defendants have failed to address Plaintiff's claims under the First and Sixth Amendments to the United States Constitution (Counts II] and IV) and claims under corresponding provisions of the New Jersey Constitution brought pursuant to the New Jersey Civil Rights Act (Counts VII and VIII). A Fourth Amendment and Article 1, Paragraph 7 (Counts V and VI) Defendants ViaPath and GTL never reference the Fourth Amendment or Article 1, Paragraph 7 in their brief, but suggest that pretrial detainees lack a reasonable expectation of privacy in their telephone calls with their attorneys‘. Just recently, the New Jersey Supreme Court confirmed that, “Monitoring of an arrestee's call to a lawyer is constitutionally forbidden, regardless of notice.” State v. McQueen, 248 N.J. 26, 50 n. 12 (2021) (citing State v. Sugar, 84 N.J. 1, 13 (1980)). “An arrestee cannot be given the unpalatable choice of speaking with an attorney in the unwelcome presence of a police officer or on a recorded line, or not speaking with an attorney at all.” Id. Here, Plaintiff was not a prisoner at the timeframe set forth in the Complaint, but rather, a pretrial detainee, who was presumed to be innocent and had a constitutionally guaranteed right and necessity to consult with his attorneys regarding his impending trial. “The 4 At the outset, Defendants misrepresent the decision in Young v. Department of Public Safety & Correctional Services, 2015 U.S. Dist. LEXIS 82526 (D. Md. June 24, 2015), which had nothing to do with the recording of attorney-client calls, and where an inmate filed suit over the disclosure of his disciplinary status to his own attorney. The Court ruled, “Plaintiff's complaint regarding the release of information regarding his disciplinary segregation sentence is in essence a claim that his constitutional right to privacy has been violated. Prisoners ordinarily have no legitimate expectation of privacy.” Id. at *12 (emphasis added). lL ESX-L-004260-23 11/03/2023 Pg 22 of61 TransID: LCV20233413866 warrantless and surreptitious monitoring or recording of calls of an arrestee who is presumed innocent does not comport with the values of privacy that are prized in our free society.” Id. at 50-51. To demonstrate a Fourth Amendment violation, an individual must demonstrate that he had a “reasonable expectation of privacy” in his communications. Id. at 41-42. Where GTL inadvertently recorded attorney-client calls at a jail in California, a District Court determined the Fourth Amendment had been violated and held, “[I]t is clearly established that pretrial detainees have a reasonable expectation of privacy in phone calls to their attorneys, especially when a prison has an actual policy of not recording or listening to such calls.” Jayne v. Bosenko, 2014 U.S. Dist. LEXIS 84431 *69 (E.D. Cal. 2014). Under similar circumstances as here, where GTL’s competitor Securus Technologies, Inc. recorded attorney-client phone calls at another jail, a District Court found the Fourth Amendment had been violated and held, “Plaintiffs have therefore properly alleged that attorneys and detainee clients have a reasonable expectation of privacy in their confidential communications.” Austin Lawyers Guild v. Securus Technologies, Inc., 2015 U.S. Dist. LEXIS 178047 *36 (W.D. Tex. 2015). See also Lonegan v. Hasty, 436 F. Supp. 2d 419, 434-36 (E.D.N.Y. 2006) (9/11 detainees had reasonable expectation of privacy in their attorney-client communications at federal jail) New Jersey’s Supreme Court has “construed Article I, Paragraph 7 of our State Constitution more broadly than its Fourth Amendment counterpart in ensuring a person's reasonable expectation of privacy from untoward government intrusion, particularly within the sphere of telecommunications.” McQueen, supra, 248 N.J. at 42. Therefore, where a reasonable expectation of privacy has been found under the Fourth Amendment, 12 ESX-L-004260-23 11/03/2023 Pg 23 of61 Trans ID: LCV20233413866 it certainly exists under Article 1, Paragraph 7. Here, Plaintiff was led to believe that his attorney-client phone calls would not be recorded by both the Bergen County Sheriff's Office’s Inmate Handbook and state regulations. Given this information and the sacrosanct nature of the attorney-client privilege, Plaintiff had a reasonable expectation of privacy in his communications with his attorneys, as every Court that has considered this particular issue under these circumstances has found. Lanza v. State of New York, 370 U.S. 139, 143-44 (1962) (“{I]t may be assumed that even in ajail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection.”) B. The law enforcement exception to the Wiretap Act is inapplicable because law enforcement officers do not ordinarily record and monitor attorney- client calls. Defendants ViaPath and GTL argue that the law enforcement exception to the federal and state Wiretap Acts bars Plaintiffs claims under those laws. MTD at 9-10. 18 U.S.C. § 2510(5)(a)(ii) exempts interceptions “by an investigative or law enforcement officer in the ordinary course of his duties.” Given the Bergen County Sheriff's Office’s regulations and New Jersey state law, it is apparent that law enforcement officials in this state and particularly at the Bergen County Jail cannot monitor or record attorney-client calls in the ordinary course of their duties. In fact, the Bergen County Sheriff's Office explicitly stated in its inmate handbook that, in accordance with New Jersey law, it does not record or monitor attorney-client calls. Confronted with the exact same fact pattern here—the recording of attorney-client calls at a jail, Via Path’s and GTL’s competitor Securus Technologies argued that the law enforcement exception to the Wiretap applied. Austin Lawyers Guild v. Securus 13 ESX-L-004260-23 11/03/2023” Pg 24 of61 TransID: LCV20233413866 Technologies, Inc., 2015 U.S. Dist. LEXIS 178047 *27-28 (W.D. Tex. 2015). The District Court there rejected that argument. Id. at * 30-31. The Court noted that “Plaintiffs allege that [Travis County Sheriff’s Office]’s policies bar recording of onfidential attorney-client telephone conversations,” and therefore “recording confidential attorney-client telephone conversations is not ... within the Travis County Defendants’ law enforcement duties.” Id. at *31; Lonegan v. Hasty, 436 F. Supp. 2d 419, 432 (E.D.N.Y. 2006) (“[I]n the prison setting, attorney-client communications generally are distinguished from other kinds of communications and exempted from routine monitoring.”) Every decision cited by Defendants ViaPath and GTL applying this exemption to jailhouse calls is limited to calls between inmates and their friends, codefendants, and coconspirators. None of the decisions concern attorney-client calls. For example, Defendants cite United States v. Rivera, 292 F. Supp. 2d 838 (E.D. Va. 2003) for the proposition that its recordings fell under the law enforcement exception, however, there, the Court was careful to note that “The government does not seek to admit any calls made to an attorney. Thus, the evidence does not raise any issue regarding the attorney-client privilege.” Id. at 841 n.6. GTL also cites Van Poyck, but as previously noted, there, “Van Poyck called a number of his friends and made more incriminating statements.” Van Poyck, supra, 77 F.3d at 287. The 9" Circuit expressly noted, “This analysis does not apply to properly placed telephone calls between a defendant an his attorney, which the MDC does not record or monitor.” Id. at 291 n. 9. 14 oe ESX-L-004260-23 11/03/2023 Pg 25 of 61 Trans ID: LCV202 33413866 Cc. Plaintiff did not consent to the recording of his attorney-client calls. Without any competent evidence and contrary to the facts stated in the Complaint, Defendants ViaPath and GTL preposterously claim that Plaintiff consented to the interception, recording, and disclosure of 37 calls between himself and his attorneys while he was awaiting trial on serious charges. The Complaint explicitly states, “Plaintiff never consented to the monitoring, recording, or disclosure of his attorney-client communications and calls.” Complaint at § 30. The facts also show that not only did Plaintiff not have notice that his attorney-client calls were recorded, he was repeatedly informed by the Bergen County Sheriff's Office that his attorney-client calls would not be monitored or recorded. Jd. at § 25-27. Furthermore, ViaPath and GTL publicly maintain that they do not record attorney-client calls. /d. at § 28. In the face of these facts, Defendants claim, “Bergen County inmates, including Plaintiff, were notified that their calls were recorded and monitored in at least two ways.” MTD at 11. The New Jersey Supreme Court’s decision in McQueen forecloses the argument that implied consent based on notice bars Plaintiff's claims here. McQueen, supra, 248 N.J. at 50 n. 12 (“Monitoring of an arrestee's call to a lawyer is constitutionally forbidden, regardless of notice.”). Defendants cite no evidence that Plaintiff provided explicit consent in any form or that it required such consent for the use of its telephone system. First, by misleadingly quoting a requirement in Bergen County’s Request for Proposal, Defendants claim they “provide[d] appropriate signage at each inmate telephone location in accordance with established Federal, State, and Facility guidelines to notify inmates that the system may recorded all telephone calls for security purposes.” 15 ee ESX-L-004260-23 11/03/2023" Pg 26 of61 Trans ID: LCV20233413866 Initially, there is no evidence that ViaPath and GTL actually provided any signage. Most importantly, however, State and Facility guidelines explicitly prohibit the recording of attorney-client calls. See FAC at § 10-15; N.J.A.C. 10A:31-21.5(b) (“All inmate telephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.”). Therefore, any signs, if they actually existed, would have informed Plaintiff that his attorney-client calls would not be recorded. Defendants also claim, citing a requirement in the RFP, that “at the beginning of all inmate-initiated calls, ‘the inmate and called party [were] notified that ALL calls are subject to monitoring and recording.’”. MTD at 11. There is no evidence that such notice was actually provided to Plaintiff with regard to his attorney-client calls. Defendants merely informed Bergen County that they would provide such a message in its response to the RFP. Regardless, any such message would contradict the statements made by the Bergen County Sheriff's Office, GTL itself, and New Jersey regulations, which made it clear that attorney-client calls cannot be lawfully monitored or recorded. Finally, McQueen made it clear the recording of attorney-client calls is unlawful even where such notice is provided. It is worth noting that a federal judge determined that GTL fabricated discovery responses and evidence regarding interactive voice responses at the beginning of telephone calls, Githieya v. Global Tel*Link Corporation, Civ. No.: 15-cv-986-AT, 2020 USS. Dist. LEXIS 222628 (N.D. Ga. November 30, 2020) (“GTL intentionally provided false information in the course discovery, falsely verified interrogatory answers, and provided false testimony via the vehicle of [a] deposition...”). 16 enewsne emeanana oe m ESX-L-004260-23 11/03/2023 Pg 27 of 61 Trans 1D: LCV20233413866 POINT III: PLAINTIFF’S CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS Defendants argue that Plaintiffs claims are barred by the statute of limitations because he purportedly “had a reasonable opportunity to discover the alleged violation when it allegedly took place.” M7D at / 1-12. Here, Defendants ViaPath and GTL surreptitiously recorded Plaintiff's attorney-client calls. Plaintiff reasonably believed and was led to believe, based on New Jersey regulations and the BCSO’s written policies, that his attorney-client calls would not be recorded. Plaintiffs claims were filed with two years after he discovered that these calls were recorded through discovery disclosures in in ESX-L-7456-20 in November 2021. Complaint at § 20-21. Therefore, New Jersey’s discovery rule and the discovery language set forth in the federal and state Wiretap Acts make it clear that Plaintiff's claims are timely. “The discovery rule prevents the statute of limitations from running when injured parties reasonable are unaware that they have been injured[.]” Caravaggio v. D’ Agostini, 166 N.J. 237, 245-46 (2001). The federal and state Wiretap Acts have built-in discovery tules. 18 U.S.C. § 2520(e) (“A civil action under this section may not be commenced late