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/