knowing of the court is from earth the facts of this case i wanted to address why the court erred and then i'm going to split my time with mr barry can he's going to deal with the issues dealing with the motions to dismiss in the summary case where the analysis was done assuming that these telephone calls were in the ordinary course of business when in fact the footnote a number nine in the event court case pacifically says that this analysis does not apply to properly place telephone calls between the defendant and his attorney which the in that instance it's the metropolitan correctional center does not record or monitor in this particular instance the son of facts there are statutory guidelines dealing with how on an inmate would go forward and register for confidential department of corrections as his attorneys and therefore the communications were confidential in indeed what was occurring was there was supposed to be a statutory scheme and a  ministry of regulation ins governing the fact that if you have attorneys that have been registered and the court with and should have been looking at the fact that they had registered these attorneys under the provisions of the administrative guidelines as well as what was supposed to be followed in the better by statute to a nine point four one nine and indeed if in fact they are registered the correctional officer is supposed to take the phone to the individual which they do in any case this was of cordless phone but they're supposed to actually place to call than make the determination that it's to the registered law firm and what i created based upon ordinary business that it was done in the ordinary business and once again that is a mistake of law made by the help me understand the context in which i'm making this argument what what's the point i'm supposed to take away from the are we talking about whether this is a law enforcement activity within the meaning of the wiretap act are we talking about something else the words we're talking about within the context of the wiretap advocate and so what occurred here is that you had according to court an exception the ordinary business of law enforcement this was not in the ordinary business that won't be yours i guess your argument then is that the officers a correctional officers who are doing this listening in at the beginning and listening in in the middle were not authorized to do that were you are you saying that it was contra were they doing something that they were not supposed to do are you saying that simply there was no affirmative authorization there was no th but they were also in violation of the statute so what exactly what statutory language are they in violation of the two and ninety four nineteen deals with the director's supposed to adopt provision for alternate methods of for confidential communications with you turning into the nine for nine hundred four d inmates communications with the tourney are confidential and so what you had here was in that in the course of the trial the speaker admitted that she was not only doing the initial and they were they were placing the phone calls the theories dropping but the fact she was also going on in the middle of the calls determine whether they were still legal costs that is what the statute that is the expectation of privacy which will be discussed i'm so i can i'm i'm just working my way to so what's the statute that they're violating to a nine point and what they're trying to say is there's a lot of what the court tried to say was there was a law enforcement exception but the law enforcement exception of what the monitor or calls between laypeople other and we have what i'm trying i'm trying to figure out why this for beards what the correctional officers say they're doing now they may or may not be telling the truth but i'm taking for the moment that they're truthfully speaking that they are listening in only to the extent necessary to determine the desired call to an attorney once they determine that they're done trained they don't know they testified at trial that in no what legal terms were they just kind of used a gut reaction in doing so but what they're doing is they're listening to all the telephone calls of the attorney and the client and  it did and your client lost a trial if i might what i missed most to conclude from that well because what happened was a court gave the wrong instructions dealing with his ordinary business exception and also that she was not only doing at the at the very beginning but she would also go in at a different time he created another exception within the exception saying that well you have a right also to monitor to make sure that there  but is can we can can we conclude from the jury verdict against your client that the jury believed the officer testimony that they were listening in at the beginning and in the middle only to determine whether this was a legal  the police in court travis perry for the appellate mr whether oh the district court erred in granting the motion to dismiss this is count in the appeal brief based on the mere presence of a contract citing the randell case and we know everybody knows that the mere presence of a contract does not confer private actors into state actors but the rendell case was not the right case to suit that was an employment case you know and they were trying to honor and i think the better case is the corniche case which we put in our supplemental authorities it is a fifth circuit case but it says the issue is not whether the defendant was provide under a contract but was they acting under state law when they performed under that contract but what are the private companies do those wrong well we don't know because the court closed discover we never got a copy of the contract we don't know what did they do not with not what the congress says i'm sorry what was the allegations what the allegation well exactly what actually improperly what did what did they how did they know that the you know see here was allegedly improperly listening in on the call wanted exactly we don't know exactly how they knew we know they set up the system that allowed for this monitoring right the but the right but if i sell a car that allows somebody to drive one hundred miles an hour i'm not liable when the person driv hundred miles an hour exactly so why don't you know where the telephone company is liable because they set up a system that allows the correctional officers to engage in a violation assuming for the purpose of my question it's a violation but i don't see how the private company is going to be liable for something that somebody else knows that's illegal well your honor the hobs case is if you allege a conspiracy that they knew going in that they were going to set up the system you should be able to survive a motion twelve b six and again we don't have the terms of the contract there could have been parallel recording systems that even though i c s said they didn't record the calls there might have been a parallel system that allowed the defendants to record the call so our position is that the phone companies were improperly dismissed at the outset because it morte for close discovery on the internet or allege that they acted willfully and into it with respect to this joint action with the state i understand the difficulties of that but the the the if i may the south case out of the out of this circuit says the joint action test whether state officials acted in concert effecting a particular deprivation of constitutional rights at salim thirty nine if the state knowingly accepts the benefits derives from unconstitutional behavior then the conduct can be construed as state action we understand the thinness of this claim our position is the court improperly dismissed the phone companies that out say that you still haven't alleged the willful participation  by the phone companies in this joint you just talked about the the state action but it's not clear to me how are you know that you have alleged that i understand there's a difficult case for us in distinguish arnold because that's is not a single act this is a procedure that they put in place a negotiated at the outset we're going to create this system that allows the defendants to illegally monitor attorney client calls now might have gone missed but the whole point was once a number was registered with the system and all three of these attorneys phone numbers were registered in the system the no monitoring or recording should have been able to take place but they set up a system precisely the allow that to happen to register telephone numbers how's that argument if i may your honor i'd like to address yeah some some arguments are so damn dumb they're hard to refute and so the state comes in and says mr with or all consented to the monitoring recording of his calls the way to unwind that is consent has to be knowing and intelligent and the notice has to be given prior to the act even if it's an inferred consent so there's lots of inferred consent cases on telephone cases but there's no such thing as inferred notice and so all along the defendants were telling mr whether all your calls are not supposed to be recorded that's in the regs it's in the law wait where they recorded or were they just listen don't we don't know if they were recorded we know they were listen to the case was about recording so i it is listen so we know they were listening to well the district court found that mr wetherell had actual subjective expectation of privacy that  that he needed to have that they you needed to show that he had didn't have an actual subjective expectation of privacy in the place searched i think it was not clear but he he knew that he was being recorded no he doesn't know that he's being monitored he suspects they try some attempts to get the bait the officers into responding but there's no way for him to know that they're actually monitoring its calls he said he suspects so they're   do you agree that that sufficient not at all your eye well because the attorney client privilege is different than a simple telephone call to somebody on the outside so this man is entitled to speak with his attorneys freely for the purposes of the attorney client privilege so if he suspects they're monitoring his calls but he doesn't know i don't see how they can give the rise to consent certainly will i'm curious about consent but it seems like we have pretty well settled law that for an individual to seek fourth amendment protection the individual must have an actual subjective expectation of privacy in the place search but where individual subjective expectation of privacy is diminished by the unreasonable actions of the government the individual may nonetheless state a fourth amendment claim and i just like for you to talk about that because you really don't talk about it in the briefs understood i want to play this through i want to find out what the right result should be here and so please address that well i think the second half of that was if his if his a reasonable or subjective understanding of his privacy is diminished by in illegal acts of the defendants he can still raise a fourth amendment claim and i think that's exactly what happened here mr with the row had the entire gamut to make these calls but do you agree that he lacked a subjective expectation of privacy and his call not at all you concede that point because he had no way of knowing when they were listening to his calls his only option was in use the phone so you don't i hear on appeal that he tonight that he was not aware  calls were being monitor your honor that's not what i said well said we know with all that he was aware that the calls were being monitored where of the potential i think that's the fundamental difference right well so he's aware that if subjective knowledge is enough to defeat the claim if he's aware of the possibility of their being monitored the claim is defeated i'm not sure that's enough to defeat the claim because it question it is a question and again they didn't the next question is is it a legitimate pain a logical interest for them to do this before as we all know that rights that are certain form outside of prison take a different form inside a prison if there's a legitimate being a logical interest in doing what the president is doing and i as i understand it the prisoner saying this is the way in which we need an act if we're going to district court never got there right i don't think the district court did not make a finding on that when it rolled in the summary judgment motion that's the second part of my problem maybe you good morning your honor smith pleased to court my name is clark leslie i'm from the office of the attorney general in nevada i will speak to the issues involving the phone privileges and the alleged monitoring that was occurring my colleagues three of them will be appearing on behalf of the telephone vendors and may discuss the motion to amend that was finally denied your honors allow me if i can please to set the stage for the situation that mr whether i was in when he was in prison during the years two thousand and seven and two thousand and eight when the one hundred in the low evan conversations were supposedly listened into as you recall from reading the briefs he had asked for protection and was placed into administrative segregation for that purpose as we mentioned in our briefs and was uncontested in unit thirteen the administrative segregation does not have a separate phone per se instead a portable telephone would have to be brought to the inmates in this case that was done from mr whether oh beyond that we know very little because mr evans the attorney ended up playing games with discovery and finally was sanctioned and disallowed from presenting any evidence because after a hear of a song and dance we discovered he claimed that he didn't have any records for the years the period may eighth two thousand and seven to august eighth of two thousand and nine i believe it was so after you know juggling around for some period of time he ended up stating i don't have any records the other matter that's important is this there is a statute that is federal in nature the omnibus crime control and safe streets act and there are state statutes to provide and allow for privileges and for confidentiality we recognize that we have knowledge that in glossing over what the statute state what my honorable opponent says about the errors that arose in instructing the jury simply wasn't true you have a statute that basically says individuals should be protected from having their conversations surveilled by electronic devices and then we have an exception to that statute it says that if you are in the ordinary course and scope of your job as a law enforcement person you maybe use devices for purposes of listening in but then as judge jones correctly instructed the jury there is an exception to that exception and that is if there is an attorney client conversation that is transpiring between two or more individuals that disallows law enforcement from using devices to  but and this is important the record showed in an established and i'm here to defend the jury's verdict which this jury worked very hard they heard evidence that there were substantial abuses and as you pointed out judge  piano logical interest under turner in many cases that you've heard many times that allows or can provide for an explanation and support for a prison regulation the jury heard substantial evidence about the difficulties in accommodating all inmates who wish to use a telephone so the so the district court never made a determination on that though right on the piano logical interest that is correct your honor they they did rule of various points through the various dispositive motions that a legitimate piano logical interest would be relevant two certain determinations of law in fact in the course of the case going to trial but was the only thing that went to trial was the wiretap crime at the in the final analysis yes jurado the fourth amendment claim was dismissed on summary judgment that is correct and it was dismissed by the district judge on the ground that he had no subjective expectation of privacy that and also the magistrate which is supported by the district court also ruled that the protections for the fourth amendment would be by a search warrant rather than through the mechanism that they were seeking so what so what if i conclude that they're wrong on that point and that legitimate expectation is not merely subjective but rather it's a matter of law and the only way that this can be done consist of the fourth amendment is that there is some legitimate be that there was a legitimate pina logical interest how do we know that because we established in the record number one that there had been a significant abuses and that it was necessary to determine so that all inmates would have access to telephones that the telephones that were allegedly being used for conversations with their attorneys in fact were doing so you have been at least let me ask you this the district judge made no finding on this question and in response to what you're saying well what there are other methods that would be less intrusive for example instead of having the guards doing the monitoring having a private company doing the monitoring not merely the people outside of ad segment even in this unit unit three now i don't know what the answer to that is but this was not developed in the district court and i think district court out of decided instead of us how do you respond to that while the question was never even interest and should we be the one deciding that or should the district court first with respect judge when we believe that a subjective expectation of privacy is essential to being able to make that point secondly you can interfere with attorney client privilege listening in all day long so long as you know as you're listening no your honor that's not what i said well at the end was what you said well what i was developing as an argument before you asked your first call you're not supposed to listen further right well but the problem was particularly in this case with the don evans law firm when the telephone call was placed from mr with a wrote to evans's office there was insufficient evidence or conversation occurring which would allow the prison to determine that it was truly an attorney client call they didn't know who was answering b whether it was mr evans or another attorney in the office that was actually going to take the call and the prison is allowed to make inquiries or in this case listen in until they determine that yes the attorney that i authorized by this telephone number to be representing mr with a row is the attorney that is now engaged in telephone call and we had expressed and shown instances where inmates would call they couldn't get through the attorney they would hang up quickly and then make another call to a non attorney and abuse the process that way so why do you have to listen and why can't just watch the guy watch the guy yeah i mean pushes the button dials again looks like he's called somebody else i suppose in a perfect world we could have the perfect just watch the guy in a perfect world your honor we could have it and devote a correctional these calls these individuals are not eavesdropping your honor they're sitting in the bubble and they have a speaker that in amongst their other duties they don't have the time to time to listen they're in the bubble your honor they are performing one of several duties that is the part of the tear were the correctional officers are sitting in a glass booth and they are watching the entire  and one of the things that the phone set up allowed was for a small speaker to be in the bubble and while these correctional officers are always making are also making sure that no one is causing a problem on the chair they can also listen question that was in front of the jury yeah the jury that that's what the ice understand because i think there's sometimes do overlap with whether or not the response by the the o c to the wiretap by a lation on whether it was in their ordinary course of their duties may overlap with people logical interest but that wasn't the question squarely in front of the jury and no one severely answered that it's your choice you're trying to argue which i understand but i'm not sure that that is sufficient for purposes on appeal that whatever it was came out of that you know the evidence that was developed from that and is in the record now we can just plod to the peano logical interest and i just not sure that we can do that well what i can say with confidence is that a very able counsel represented mr with a row and that was explored maybe if not in name certainly by description they heard everything about the speaker box about the problems that they had engaged in with a meaning the jury yes but they were not asked about whether this was legitimately unlogical interest they were asking whether this violated the wiretap act while the evidence before the jury was why it was necessary to engage in initial monitoring and in the course of answering that question the jury heard the legitimate being a logical interest it may not have been labeled as such but they were given the reasons why a pages four forty seven of the third volume of the record for example correctional officer baker testified to great length as to why it was necessary to engage in initial monitoring and correctional officer connally at page five twenty five and thereafter also presented that evidence was it specifically presented to the jury in terms of legitimate being a logical interest probably not where the jury instruction is sufficient to allow that a number of information to come in response where i would offer yes it was can we talk about the imposition of the sanctions order against evans sure against mr withrow during trial short we have two individuals inmate who has filed many lawsuits and a long time attorney in nevada the attorney in nevada i'll be kind played games with the discovery rules and after over a year didn't turn over or a responses to request for production properly we asked for terminating sanctions we didn't get them and we were still disappointed about that but he was restricted from basically discussing anything in the  going well that's correct and so then what happened was there was an attempt to do an end run around the the discovery sanction by calling him as a witness and testifying to what he had been prevented from testifying to providing evidence for in his case in chief but there are three important things that should be remembered in this regard first of all mr whether oh was more than all was allowed great latitude to discuss at length his position on what was said done during these phone calls he said they were attorney client he said he expected them to be privileged and community and confidential and so forth and that said three sixty for the record secondly the secretary or assistant in mr evans his office was allowed to come forward and testified and she said yeah i thought they were talking about legal affairs and yes they had commented that they thought they were being monitored also  this is being judged on the abuse of discretion standard and it would not be an abuse of discretion to limit an attempt to do an end run around a discovery sanction it would do you visser rate the rule if you could prevent a and tyler enders i represent a global tell link which is one of the three phone company defendants i can briefly respond to the argument that the three phone company respondents were not acting under color of state law there is no