Mark O'Donnell sued by Pennsylvanian congregations over "eavesdropping" virtual meeting between lawyers and elders

by Corney 7 Replies latest watchtower child-abuse

  • Corney
    Corney

    In a civil complaint filed under seal and unsealed nearly two months ago, 11 congregations accuse the activist of violating federal, Pennsylvania and Maryland wiretap statutes.

    In the course of the ongoing statewide grand jury investigation, all JW congregations in Pennsylvania were subpoenaed to produce records pertaining to child sexual abuse. So, meetings were arranged, county by county, between lawyers and elders on how to deal with the subpoenas. One of such virtual meetings (via MS Teams) was organized for elders from Montgomery County on 16 February, 2023:

    44. To schedule the Teams Meeting, the attorneys sent an email and Microsoft Outlook invitation to the coordinator of each of the eleven (11) body of elders.
    45. Both the email and Outlook invite contained log-in information for the Teams Meeting, which included a video and telephone link.

    One of the attendees shared an invite link with Mark O'Donnell who logged into the meeting - allegedly "thirty (30) minutes before the meeting start time in order to obscure his presence at the meeting." He admits he "knew that it would include some attorneys and some representatives of some Pennsylvania congregation" while denying he concealed his identity or presence during the meeting.

    The conversation in question pertained to issues like

    (1) the status of the ongoing investigation; (2) service of a grand jury subpoena on the congregations (including the specific years being investigated); (3) impending service of similar grand jury subpoenas on every Jehovah’s Witness congregation in Pennsylvania; (4) the possibility that the congregations may be named in a criminal indictment as the investigation proceeds; and (5) the possibility that the congregations (through their elders) could be called to testify before the grand jury...

    Specifically, the congregations and their attorneys discussed: (1) that attorneys for the Jehovah’s Witnesses were meeting with each Pennsylvania congregation, county by county, and had covered twenty (20) counties by that date; (2) the existence of a “litigation hold;” (3) instructions on how to comply with the litigation hold; (4) the details behind preparing a privilege log; (5) instructions on how to comply with the grand jury subpoena; (6) discussions related to the payment of legal fees; (7) the possibility of having to testify before the grand jury; and (8) the possibility of being named in a criminal indictment.

    Few days later, Mark was interviewed by a YouTuber, allegedly disclosing some information from the meeting. He also participated in a Reddit thread on the video. The video and the comments have been taken down after the start of the litigation.

    The plaintiffs claim O'Donnell unlawfully and “intentionally intercept[ed] the wire ... or electronic communication and intentionally disclose[d] and/or use[d] the wire or electronic communications he intentionally intercepted during the Teams Meeting on February 16, 2023, by revealing them during his YouTube video interview on or about February 19, 2023 and endorsing them on a [Reddit] blog." The relevant laws define "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device" other than a standard telephone or a hearing aid device.

    O'Donnell states, among others, that the meeting wasn't confidential, and/or he acted lawfully as he was invited by an attendee. The former argument seems not very strong. As to the latter, I'm not sure it will be successful under MD (where the defendant resides and where his relevant actions took place) or PA ("the focal point" of the conduct in question) wiretap statutes as both states appear to be all-party consent jurisdictions; the federal law provides for one-party consent so this is different. Another issue is whether the communications were even intercepted - that is, whether the defendant used his smartphone as a phone (which is OK) or as a computer. There is also plenty of other legal and factual issues to be dealt with by the court. Jury trial is scheduled for October now but it's unlikely to take place this year, I believe.

    The congregations ask for an array of remedies, including legal fees and statutory damages of $100, multiplied by the number of days the mentioned YouTube video was available, to each of them - that is, nearly $370,000 under each statute. Given the video was uploaded by another user, and the plaintiffs did nothing to take it down, it's unlikely this claim will be granted in full. Anyway, the case is going to be hard and interesting. Mark has very good legal representation, apparently and hopefully pro bono.

    Case documents are available here: https://www.courtlistener.com/docket/69411983/burholme-congregation-of-jehovahs-witnesses-v-odonnell/

  • Dagney
    Dagney

    Wow thank you for sharing. I had heard he was being sued.

    Keep the faith Mark and thank you for all you do.

  • buzkid
    buzkid

    If Mark was invited by one of the members of the MS Teams discussion to attend it then I don't see how he "intercepted the wire". He had an invitation to attend by having had the link to it shared with him. He didn't Zoom Bomb, he just watched and listened as he was invited to do.

  • Listener
    Listener

    Surely it is up to the host to accept or deny attendees. For every attendee to then sue someone they didn’t want there seems odd. The fact that it is the Congregations that are suing doesn’t make sense. The video that he uploaded shows individuals, not congregations. If the Elders divulged sensitive information about their congregations then shouldn’t they be suing the host for allowing him there?

    Has the Elder that invited him been named and sued as well?

  • Corney
    Corney

    Wiretap laws treat individuals and corporations alike, and the latter are clearly entitled to statutory remedies. Still, it is noteworthy the only plaintiffs are congregations - not a single elder - even despite this undermines their common-law invasion of privacy claim. The Second Restatement clearly says legal entities have no privacy rights, and courts follow this rule, sometimes reluctantly or indicating the issue is uncertain. The only authority to the otherwise seems to be a 1981 appellate ruling.

    In light of this disadvantage, their decision to sue on behalf of corporate plaintiffs is likely deliberate. The complaint seems to claim the attorneys' client were congregations themselves and not elders. Therefore, it can be possibly argued that elders weren't authorized to waive any privilege or to share their log-in credentials with any outside person. And such an unauthorized person, especially if aware of this fact and hiding his presence, can be claimed to not be a proper party to the conversation - even under one-party consent rule. Still, these issues are pretty contentious, both legally and factually.

    Password-sharing seems to be a felony in Pennsylvania, and unauthorized access - a misdemeanor in Maryland; wiretap statutes also contain criminal provisions. But I see no mention of any criminal proceeding or investigation in the case documents, and the leaker probably remains undetected. It is my understanding that Mark haven't uploaded any recording of the meeting anywhere, and Watchtower apparently has no evidence he recorded it, to his advantage.

  • Listener
    Listener

    Thanks Corney, that answers a number of my questions - and more.

  • DesirousOfChange
    DesirousOfChange

    WT's "free" lawyers gives them an advantage to sue, sue, sue and attempt to wear out the other parties. If they can be charged for the other parties' attorney fees should they lose, perhaps they would look at it differently.

  • TonusOH
    TonusOH

    How can you hide yourself in a Teams meeting? Especially one where you have no administrator access? A click of a button would have shown all of the attendees. Did no one bother to check? I don't doubt that he wanted to remain unnoticed, but I don't see how he could hide himself from the other attendees. Perhaps the elders thought he was with the lawyers, and vice-versa?

    I'm not sure what case the WTS has here. They might be successful in getting the video taken down permanently, but how would they calculate damages? I wonder if there is a chance that O'Donnell will win and be able to get his legal fees reimbursed at the WTS's expense?

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