Free Speech

No Take-Backs, No Do-Overs, No Data Replevin

A lawyer caught on tape criticizing his client (a judge), in the making of a documentary about the prosecution of rapper Meek Mill.

|The Volokh Conspiracy |

From Peruto v. ROC Nation, a federal district court case decided yesterday by Judge Gerald Austin McHugh (E.D. Pa.):

[1.] In common parlance, when someone regrets words spoken in haste, the speaker of such words often follows up by saying: "I take that back." This is a case that tries to give legal force to that expression, as Plaintiff here seeks to replevy the contents of a recorded interview to keep embarrassing statements he made from being included in a film documentary. Courts have been virtually unanimous in limiting the remedy of replevin to physically tangible property. Putting to one side the profound First Amendment implications of Plaintiff's proposed relief—in the nature of a prior restraint—I conclude on technical legal grounds that replevin is not an available remedy for a dispute of this nature….

This dispute arises out of an interview Plaintiff gave in May 2018 for a documentary series entitled #FreeMeek. Defendants Roc Nation, Amazon Alternative, IPC Television, Josh Miller, Patrick Reardon, Eli Holzman, and Janet Kim are all involved in the production of the documentary. The focus of the series is rapper Robert Rihmeek Williams, better known as Meek Mill. It intends to address, at least in part, Meek Mill's experience with the criminal justice system, including his interactions with Judge Genece Brinkley of the Philadelphia County Court of Common Pleas. Judge Brinkley has overseen Mill's criminal case for more than a decade and became the subject of some controversy when she re-imprisoned him for probation violations. Facing public criticism, Judge Brinkley retained Plaintiff A. Charles Peruto, Jr. as her counsel.

On May 30, 2018, Mr. Peruto sat for an interview related to the #FreeMeek documentary series, which is the source of this dispute. The interview concluded with Peruto explaining why he believes Meek Mill does not represent an example of the problems in the criminal justice system. When Peruto finished, the interviewer and one of his colleagues indicated that they had no further questions. Peruto then said, "Let me tell you something," at which point the camera turned off. The audio, however, continued recording as Peruto went on to say, "That was hard to do because defending this judge is now becoming—why doesn't she just grant this fucking thing?" A conversation ensued—caught on the still-operating lavalier microphone—in which Peruto said critical things about his client and her handling of the Meek Mill case.

The audio recording reflects that, despite his assertions to the contrary in both the Second Amended Replevin Complaint and the Second Amended Wiretap Complaint, Mr. Peruto never instructed anyone to go "off the record," nor did anyone present state that they had stopped the audio recording.

After Mr. Peruto was given the opportunity to hear the full recording as a part of this litigation, he alleged that it had been edited and did not accurately portray the interaction. Accordingly, I ordered the parties to agree upon an expert who could evaluate the authenticity of the recording. A team of two experts, Catalin Grigoras and Jeff Smith, has since confirmed that the recording is authentic. At oral argument, no party disputed its authenticity….

Mr. Peruto obviously did not intend for his disparaging statements to be shared widely, let alone become part of the #FreeMeek documentary series. Unfortunately for Mr. Peruto, his comments were leaked to the press along with portions of the recording….

[2.] Plaintiff brings a novel replevin claim seeking sole possession of the digital version of his oral communications…. Peruto's replevin claim does not seek possession of the equipment originally used to record him or the device on which the recording is stored, but rather possession of the data and files that contain the recordings of his voice…. Plaintiff [cannot establish] a viable claim for replevin by showing [as is required] that (1) the recording constituted a property interest subject to replevin, and (2) he had title and exclusive right to possess the property….

[3.] Replevin is a common law remedy dating back centuries. Historically it has taken the form of an action to regain possession of goods and chattels. Traditionally, only tangible property has been recoverable in actions for replevin or the related tort of conversion. The law has expanded only slightly beyond the bounds of tangible property, but the Pennsylvania Superior Court has noted that "[t]he process of expansion has stopped with the kind of intangible rights which are customarily merged in, or identified with some document." In such cases, there is some intrinsic link between the physical item retrieved and the property interest it signifies. For example, items such as deeds or stock certificates are recoverable in replevin and conversion actions, but other intangible property remains outside the bounds of a replevin claim.

The computer data and digital files Peruto seeks represent intangible property beyond the reach of replevin. A stock certificate is a specialized instrument signifying a particular ownership interest. Hard drives, portable "thumb" drives, and data "cards," in contrast, store information of every conceivable form, encompassing audio, video, photos, spreadsheets, calculations, and every variety of text. The computer data and digital files that Peruto seeks to replevy represent one form of information, stored by various methods, none of them emblematic of the content of the data.

The computer data and digital files containing the recording of Peruto's oral communications are therefore unable to support a replevin action….

[4.] Even if Mr. Peruto could assert a property interest properly subject to replevin, however, he cannot claim title and an exclusive right to possess the property in question…. Here, Peruto has simply asserted that he "has title and exclusive right to possess the computer data and digital file containing the illegally obtained audio recording," without citing the basis for such entitlement. He claims that his "oral communications" constituted his property, which Defendants "illegally obtained and made permanent as 'digitized communications.'" He appears to argue that the act of (purportedly) unlawful recording is what gives rise to the ownership interest he asserts. But Plaintiff offers no legal authority supporting the conclusion that Defendants' conduct in some way endows him with exclusive rights to the words spoken.

Understandably so. Claiming exclusive possession of words knowingly communicated to others presents an inherent contradiction. Once words have been expressed to another, the speaker would seem to have forfeited the exclusive right to "possess" them, as they then exist in both parties' memories. If someone present creates a record of what was said, the physical means they employ to do so—whether written notes or electronic device—would have a tangible existence that could be appropriate for replevin. But the means of preservation are distinct from the words themselves.

Mr. Peruto further argues that, even if he cannot claim an exclusive right to words spoken in the presence of others, his voice is uniquely his, and Defendants cannot appropriate the sound of his voice in their documentary. On a different record, this argument might raise profound questions of privacy and personal identity. Here, the fatal flaw is that, in agreeing to cooperate with Defendants, Peruto expressly agreed in writing to allow them to record and use his voice. Although Plaintiff might argue that the release has limited applicability, his having signed it certainly forfeits any claim of exclusivity as to the sound of his voice….

Replevin is not a vehicle through which Mr. Peruto can "take back" what he said.

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  1. I would not have ruled so broadly. The judge could easily have said that even if replevin might apply, the consent to be recorded precludes a claim of sole ownership of the recording. I would have left for another day the question of whether some class of electronic data intangibles (Bitcoin comes to mind) might be subject to replevin.

    1. Why not? Using replevin to seek possession of something that legally is incapable of being possessed is clearly bonkers. Whether Bitcoin can be possessed is a different question, which different jurisdictions might well answer differently. In any event, I don’t see how this case prejudges that issue.

    2. I would have left for another day the question of whether some class of electronic data intangibles (Bitcoin comes to mind) might be subject to replevin.

      I respectfully disagree.

      This opinion doesn’t mention Bitcoin; it doesn’t purport to be a sweeping new ruling on all types of electronic data intangibles. Nor does purport to create a precedent for any types of electronic data intangibles that were not at issue and that thus were not before the court. Even if it had so claimed, that would have been obvious dicta.

      If someone in a future case cited this opinion as if it were controlling or persuasive precedent applicable to all, or some other, electronic data intangibles (e.g., Bitcoin), it would be easy to distinguish this case.

  2. One hopes Mr. Peruto has kept his malpractice insurance up-to-date.

  3. This dude is kinda stupid.

  4. “Plaintiff here seeks to replevy the contents of a recorded interview to keep embarrassing statements he made from being included in a film documentary. Courts have been virtually unanimous in limiting the remedy of replevin to physically tangible property. Putting to one side the profound First Amendment implications of Plaintiff’s proposed relief—in the nature of a prior restraint—I conclude on technical legal grounds that replevin is not an available remedy for a dispute of this nature”

    What if plaintiff had requested all physical copies of the medium on which the interview had been recorded?
    Or is it the case that interviewees should present a boilerplate contract to interviewer granting themselves a right to edit or delete the recording after it has been made, or reserve the right to decline to permit the interview to be used for any particular purpose or for any purpose, period. Would courts enforce such a contract in light of a first-amendment challenge?

  5. What a delightfully droll opinion! And what a maroon!

    Pro tip for fellow lawyers: “Let me tell you something” ≠ “Let’s go off the record.”

    All-Pro Tip for fellow lawyers: Remember who generally conducts in camera review to consider privilege claims: the judge (or a subordinate). Therefore, my standing and invariable practice over the last 40 years has been never to commit anything critical of any sitting judge to writing, even in a privileged communication.

    If obliged to give my candid impressions and advice to a client about a judge — which indeed trial lawyers are commonly obliged to do — I do so verbally, with an instruction to my client not to take notes about it.

  6. Court squirrels out of it by arguing contract — he gave permission. This seems to make a weak point in the facts load-bearing, though — if he can establish that the recording was unfairly surreptitious, you’re back to square one. Perhaps easier to say that Replevin doesn’t lie for an infinitely reproducible object. (And rely on the fact that either the secret prime or the post hoc work in modifying the blockchain string can sufficiently distinguish cryptocurrency, perhaps.)

    Trover, perhaps. Seems to test the facts more cleanly. (Was the appropriation wrongful? Did the plaintiff exercise due care?)

    This comment is not legal advice. Or a ham sandwich.

    1. … if he can establish that the recording was unfairly surreptitious, you’re back to square one.

      From the opinion:

      A conversation ensued—caught on the still-operating lavalier microphone—in which Peruto said critical things about his client and her handling of the Meek Mill case.

      He didn’t notice when they literally clipped a microphone to his collar, d’ya think?

      1. “He didn’t notice when they literally clipped a microphone to his collar, d’ya think?”

        Clipping a microphone on your collar doesn’t cause a recording to be made. If they clipped on the microphone on and then said “we’ll do this hand gesture when the recording starts, OK?”, but started recording immediately without doing the hand gesture, that’s a surreptitious recording. is it not? If they told him he could go off-the-record just by signaling a desire to do so, but the recorded throughout, that might be surreptitious, too, no?
        Or even if they suggested that they’d let him cut out stuff after the interview, but they didn’t, that might be unfairly surreptitious. So the fact that he knew he was wired for sound doesn’t rule out the possibility that he was surreptitiously recorded.

  7. Having spent a few years of my youth subsidising my acting habit by working as a theatre electrician, I can vouch for the fact that people forget that they’re there. If the sound tech doesn’t take the slider down during tech rehearsals, you’ll be hearing conversations and the usual noises associated with human beings from the offstage folks. Industry rumor has it that a high-profile star broadcast some trailer shenanigans to the entire set, as he was still wired (and patched into the PA by a trickster tech).

    The tort claim would test the attenuation of the wiring-up to determine fault. Possession of the IP of the voice was never really acquired by conversion or asportation — which is why I think the trover/quasi-trover calculus might be right. It’s discovered in possession subject to a sort of quasi-bailment logic, and the techno-paterfamilias who has it does something with it that they shouldn’t do. That goes beyond their rights in the object, however acquired.

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