fifteen or twenty minutes we would ordinarily give you and this is the type of case i think so let's begin  represent north american corporation of illinois which for today's purposes i will refer to as north american for each of the court and first i will speak as the of the right of privacy in the state of illinois and there's really not a lot of cases on that i believe bussy versus motorola is this court's principle case which don't really hates the elements of what a  obtain the plaintiff telephone records from telephone companies that is the so called offensive back highly offensive act that is a necessary element of intrusion upon seclusion so the question becomes how is our client north american liable at all for that first of all direct liability no evidence was presented and i don't believe even the plaintiffs make this argument direct or circumstantial that any employee of north american was the person or persons who imitated or purported to imitate that he or she was misled or and for the telephone company i've searched the records of the board any such direct evidence or substantial evidence to demonstrate that would an attorney ending as an agent for the corporation reach some form of liability director right hearings under certain circumstances an attorney can act as an agent i believe this court in the buckles decision there's a distinction between sometimes the attorney can be an agent sometimes or an independent contractor but for all purposes  attorney was an agent and if the attorney was the person who in fact did it that may create vicarious liability under certain circumstances for the for the the plaintiff but i don't believe that's your there's no evidence that mister group black who is the partner agency short because there is absolutely positively no evidence whatsoever even for the jury to make a determination that there was any type of agency relationship whatsoever he answered a special interactive tori's in a manner that is consistent with the finding of an agency first place that was our motion for directed verdict both after our case in chief of after both sides closed after playing this case in chief after both sides closed and then again after the joyce verdict that this thing never ever should have gone to the jury the first place because they couldn't put on a prime offi case i believe based on the evidence and i can go through that if you like of agency whatsoever none whatsoever because the primary consideration of agency as as this court has repeatedly has but this division and others is control the ability to control over the manner in which the third party in this case this pro ok act and there is no evidence circumstantial or otherwise that this defendant north american took any steps or even move the manner in which circumstantially they had to have been given instructions as to what to do they had to hold to themselves each little tiny bit of it might have been controlled but someone gave someone instructions that not correct gave instructions to probe to go out and illegal never put anybody from this third party discover who stands we got the information on to say what they did or didn't do well of course but the way the way it's all set up is you've got a lawyer who's working with one of your officers to manage this investigation he hires an investigator sure and the investigator hires an investigator so we don't even know where that company is what city they're in what the name of the people are and we're expected the jury's expected to believe that you folks have no idea what they're going to do and then lo and behold you get a bunch of phone numbers and you use it in your investigation that's ok yes absolutely that is absolutely ok it's ok because if we didn't control how those numbers were obtained ok we under no circumstances  you all your attorney does is say here's her name here's her address here's your social security number and here's her birthday get back to me yet and that's all right and they get back home and all they get is telephone from ation it's like he didn't even the which i would say that if room knew that the private detective agency now one retains a licensed professional to do with tasks ok let's any realistic ability to monitor the professional given the professional superior expertise for if that happened are you saying that you would have no responsibility someone shows up and you've obviously personal private information maybe income tax returns or some nature that should not have been disclosed i mean i remember there was a presidency or who got thrown out of office for not checking with the people who did things in his name that were illegal and he left office as a result so it does happen that it goes up the chain if you can reasonably presume that it could not have been obtained without some awful means going through an obligation to undo something or perhaps haps but th the i would argue here is that there's real evidence whatsoever that said that you can't get these more than our clients where you could get these by any other mates but a good example even judge because the indicated that they were possible other means of getting this you're saying probe was an independent contractor correct and and discover was there independent absolutely and then because of that and because they're in judge mccarthy's opinion and in your opinion there are other ways that someone could get this own information sites pretexting going through garbage knowing somebody at the phone company just calling up and saying can i have this information and having some don't put the phone company give it  that they're there are plausible other ways to get this information correct that the chain doesn't go back up to break even if there were not plausible other ways which address his honest concern ok even if there were work and different there's no way that anyone would think that that was a rival in the fact that discoverer was doing work and they were doing it on our behalf for that purpose doing work it was he weekly r b f probus an exclusive to us we don't pay their employees we don't pay their benefits we don't we're people we don't know how to train your people we know how to do what they did it just doesn't matter i mean that the key point is control it always has been and if you look at every decision of the cases we've cited for what constitutes agency not a single one of them fails in favor of finding agency and we maintain that judge mccarthy was broke for that and this case never should have gone to the jury for that issue and as to the issue as to right or we should or shouldn't have they were there was sufficient notice that they should have acted so that was never presented to the jury along never a theory of the case and for that reason i don't believe it should be an issue for this appeal whatsoever procedurally more importantly i don't believe there is any curious liability of an independent contractors conduct one another we saw to know where all the site is a federal copyright case from two thousand and three which is which was federal copyright law for vicarious infringing employee tells the supervisor that the supervisors application of pesticides cause the occupants of a space the camile nor anything about how discover was getting the information indeed mr had no right to discover gets the information he checks off the menu so restaurant he saxes again he gets the information back he used them for many years and at no time is there any evidence of any indication that with these people did was for it i believe it's more of a standard you get to review this again at least with respect to whether the facts of the particular case justify the imposition of punitive damages as a question of law that's the nova review that's what the and pretexting is deceit pretexting is arguably fraud making a misrepresentation to the two telephone companies that you or someone else so the deceit the fraud is already an element of the cause of action in order to obtain compensatory damages therefore you need something more real the case law is clear that to get punitive damages under illinois common law you need something more than one of the elements of the there's no such proof we believe no evidence of threats to his lawyer physically or otherwise none whatsoever no evidence that the defendant just like you in the brown case are unlike bugs there's no evidence where someone from north american says to miss l to use my wealth i'm going to use my powerful connections to prosecute you criminally and separately to make you suffer like i have with apple of law that's what the individual defendant owner of the radio station told the plaintiff and there's no evidence ok that we participation for that vicarious liability to liberate corporate participation in the court itself and that just doesn't exist here because there is it is the testimony in the record is undisputed it is u and it is not contradicted that we did not know about otherwise authorized the pretexting and we had no knowledge of what was going on in the eps of that i wrote understand how we can be vicariously judgment held that all the crime that we did was wrong in terms of surveillance that providing a social security number is lawful that providing a birthday as number that provided her telephone numbers was lawful all of that was law from the state of illinois even provided her social security number is all math in the state of illinois so we're getting beat up because we raleigh provided information to a third party to go visit every page is a contact that we have no idea about so it doesn't really deter us i think it has a deleterious effect right down side what it does is a professed law for conduct by to use your phrase that north american got beat up because it allowed somebody to hire an investigator on their behalf to get information and then to claim indifference ignorance a lack of interest  off and how they got the information and then north american was quite willing to use that ill gotten gain in their investigation that seems to me from reading the record bobbie you really have to rise exactly the way you did but once again your hon i would articulate that i find no duty in the economy wrong for a party to investigate the conduct of an independent contractor that it hires to determine whether or not that the con a therapist or doctor whatsoever ok she was a normal life she works full time she enjoys her family they traveled through parties they go out to eat they have people mover no injury that  state of illinois and they didn't appear from that summary judgment ok so there were one she had no evidence of the proximate cause that whatever anxiety or male anguish she felt was a function of the surveillance as opposed to this one time where she found out that someone was looking at her telephone records and see her the passion of the surveillance was so great that she had her mother in the record check you off every single day who was or wasn't outside her house and what times they were there with times they weren't there so i think that's a problem second ursus morkel she has to demonstrate that she was financially problem boy and it was no evidence to the contrary she needed two hundred seventeen thousand dollars the year before she left the company she was scheduled to make approximately three hundred thousand dollars look at t company she goes on vacation she has parties at home she goes out to eat there's no proof that we knew she was financially viable i think that there's just no evidence that this woman was financially vulnerable was a repeated or isolated incident no it was simply anything with the one transaction there's no evidence of a consensus of pretexting by ruth american in relation to persons other than his lawyer so i believe there's no we're not recidivists here which is what i think the supreme court is talking about both the united states these are fact questions that we're talking about credibility determinations inferences of evidence and the jury answered detail special erotic choice propounded by the defendant that day wanted answered and they answered those that it wasn't just agency they found that north american directed the trial authorized the torque and knew that the  tame by pretexting there is simply no basis for this court to upset the jury's findings when there were questions of fact and inferences from the trial from the evidence the defendant would just like to talk about agency theory but even to get to agency this court has got to reverse the jury's findings regarding north americans direct involvement in ratification of probing discovers conduct and there is simply no basis to do that they need to commit the trial or receive the benefits of the tort hamper toward continue for five months commit the same torture to other employees and yet say because we don't know because we told people not released hand a written list of seven hundred phone calls made by someone with the timing duration why is a private investigator calling north american and if you put even without that bill that you're you could be evidence that the jury heard the implausible testimony of north american and found that there was no doubt that they knew what was going on and what they did is they created the shield they created this phone records despite the fact that he has thirty years in the business and this is a source of his income and north american and pro testified think sure it was important to molly got the right words but they never asked how they you've got a corporation that's asking for phone records they're getting the information out to get phone records they're getting the phone records they're using the phone records and it is the senior officials of north american that are  it was factual questions it was inferences but the jury had to make and you know we were lucky we had an extremely bright jury we had six people on the jury with advanced degrees we had a pediatrician or north western we had an attorney there was a college professor in english and we saw through the charade that the defendants put up there and if there's anything that pissed the jury off if i can use that expression i apologize and really didn't i apologise i s that the senior person north america got understanding saying nothing when they were the ones asking for the specific information when they were the ones using the information and when it wasn't that they asked for a single time there were a number of requests from north american to probe to get phone records they got additional months they requested specific examination of particular numbers and they kept that and  no time did this stop to say well you're already violating a privacy a we're you know infringing on the rights and the telecommunications act of one thousand nine hundred sixty had been in effect for almost ten years before this it the phone companies the date only released that information to the subscriber that they there was something called the snap where they have to verify the so security number the name address the password of the person to make sure the subscriber the defendant makes a challenge about was how do we know it was pretexting and it's pretty clear because you look at the actual documents that the failed company produced or introduced into evidence and it says if you look at the entries and this is at six seventy the common all record one of our exhibits the u s cellular representative notes in for one customer up on calls from seven twenty eight it eight seven then they give out the information over the phone and the timing shows that no sooner does north american request pacific records that program orders in from discover a call is made to the phone companies and then the records are fax back handwritten north america gets a running they get the records they go with the numbers they do their search and they try to decide what's going on with it i don't think there's any doubt that there's evidence from the jury to find pretext well then how did they get the records they're sitting there with seven hundred dollars how did they get them now as far as knowledge yet probably most of the judges a bad experience with criminal cases knowledge is a critical element of almost not at most but a lot of criminal cases and the defendant does not get up in the same say i knew it was illegal you can't get into somebody said you can't get in the corporation said knowledge is proof from circumstantial evidence that's how we do it and north american like to say that by simply getting on the witness stand in denying that i knew anything no matter how implausible that it is i have to get out of geale jail free card i'm entitle to walk want to i mean as for naresh defend one of the phone records they give all the information the necessary to get the phone records and this is a company that says they keep the information under lock and key and yet they released it without investigation the assigned pat dolan to be the liaison the pro and he had conversations with regarding the investigation as i mentioned before all the information was handwritten they receive with probe for ten years ten years and different employee investigations it's simply implausible he reaches work directly with other senior officials of north american and found they were agents and north american controlled every aspect and the best the geisha north american provided the information necessary to pretext north american told paul exactly what they wanted him to get of exercise i mean and then what did what to discover to discover took the form and got the three records that they were told to get by pro they didn't they didn't exercise any discretion they were controlled by north american for now i mean there's cases dealing with the doctor's relationship with the patient in the tourney but those are cases where people actually act using despite ssion here it was reasonable for the jury  as it did in response especially when the auditory that there was agency and there's really no reason to reverse it it there's evidence to consider there is determine statements in june they could a filed a lawsuit they could have gotten the records through discovery they could have served a subpoena but they didn't want to do it because they wanted to do it themselves they don't want to can be controlled you want to be monitored the company believes it is above the law and it doesn't apply to them and they directed this this is not vicarious liability this is their direction they engaged in a couple to prevent information from getting out there to be involved there were trying to prevent the information from being discovered identification there's no claim for contribution as far as whether the conduct is repeated it's clear it's repeated conduct there were fourteen calls just to us cellular fourteen and then there were calls to  our home phone provider at the time was ameritech this scheme did not last one day it did not rise to week it went on for five months the calls to the phone company started the fourth of two thousand and five calls continued t october of two thousand and five and i think the offer of proof if anything doesn't show that this is a reset as back does north american obtain the phone records for jennifer hall in the exact same manner the exact same matters i talked about before information from north america sent to pro in the order to discover they provided the exact same opportunity here's versus low and in that case the element supreme court found that we have to take one's attorney's fees into account we can't make it economically unreasonable for a plain their rights we can't make it so economically unreasonable the plaintiff get an attorney to take a case and here i think we would all agree that the right to privacy is fairly fundamental and obviously th once like the policy privacy is really an intangible there's really no specific dollar amount when we argued them just the jury i mean we had knowledge that everybody in this room would put in different dollar amount and the value of one's privacy it's extremely difficult but to say that you're limited to those bandages or some small meant to paul would mean that nobody would ever play suit nobody would stop north american from pretexting nobody would get them to sit up and take notice i mean punitive damages are supposed to be large enough to be heard and in this case it's a fifty million dollar company self reported with no debt that we're trying to get to hear our message and that's what the jury heard and the jury heard this they were going to use their resources against her they were going to teacher and other employees a lesson that nobody's going to stand up to them and it's not going to make economic sense for them to hear the message the punitive damages have to be substantial it's not substantial there's no deterren what i thought was the basic appeal of north american which is that the court eared in denying the motion to dismiss and that the agency question should never have gotten to the jury therefore the pre to simply that there were factual determination that went into that question there was credibility determinations there was evidence from which the jury could find in reasonably find information in this case it can't stand it is completely divorced from illinois law because there is no confidentiality agreement lalas testimonies under budget that nobody ever told her that the information was confidential it's information in her head that she created cheap broadening the clients quite clearly calling and she set up all the poison information it's not information she got from north american additionally there is absolutely no evidence the north america took any steps to keep the information confidential and i think it's important to realize that the information was used not to compete but to intervene and it was used to interview before she even knew of this necklace business disclosure of continental information by employee and was it's a trade secret claim or it's a near permanent customer relationship and we don't have that here and and then the second point is that and there's no way to say it's harmless because there's nothing else providing the information that's in there there's no evidence of anybody testify no you're pushing knowledge testified that waller tried to get this mapquest account  that were filed simultaneously and rob there were questions about this writer at the trial north american contended that the rudder was arguably relevant to claim that waller attempted to take business and steer it to camera so how would the plaintiff know that there's going to be a completely different cause of action when this case competing before leaving their employment but they can do everything necessary to start competition or either that point prior to leaving they could form a you know pick a business name they could get an address they could get insurance they c employee the can start competing in this case there's no unmissable evidence that it was used to compete and the courts very that this is evidence that you do is used to compete makes absolutely no sense confidentiality agreement or some instruction directive policy but the information is confidential it's almost dispositive that it's not there's no evidence of what the defendant did they keep it confidential there's no evidence that they told their customers they couldn't give this out and then i think what's really telling is defense exhibit thirty six it's a letter written by law were a month after she leaves her employment and despite the fact that they're so concerned about what she's doing and they're so concerned she maybe took their business they sent forty six pages of detail pricing and profit information to woller without any restrictions i mean if that's not evidence that they don't consider to be confidential that they don't have to take steps to keep it confidential that i don't know what is but why would they send that forty six pages then ask for it back in so you can't show this to anybody and when you look at those forty six pages versus a summary in the wall o the gross profits going to come from any part of that it could have it and we're talking about thousands of products he said had some golf balls with the company's name on insureds and it doesn't say look any product costs it doesn't say the  profit margin for any product and lollar got the business and she received by cold calls she call people up and say can i beat your pricing yet you don't even need this to compete in the industry she got her clients without using anything i mean you know the business is not rocket science there's no friendless there's no patents there's no inventions they're selling shirts they're selling golf balls that and i think that makes it pretty clear that what the court was doing and there were court explicitly said it was doing was it was imposing equivocal playable resolution on the parties because the court disagreed with with the jury and different trying to punitive damage award given the hour because the jury didn't consider her conduct even though that was a central element of mr mason's closing he read the attitude to the jury and said based on this evidence how could we not act to protect ourselves how can we not act to protect our business and then on the other hand she used it to raise a punitive damages against wrong or by saying you know because this conduct a so bad there's got to be five hundred fifty one thousand dollars of damages imposed against you so it not only affidavit and he says yes i mean that's what she's relying on well who said what in the discussion who said that was it something reza said was it something ventura said was it something personal said i mean what does it mean and especially when there's not a single witness that came in to see the wall or try to take me to get me to take her business with her there's no document there's no e mail i mean they had this massive investigation and what did they come up with the came up shouldn't bring in a business she received no compensation the only reason she had money to forfeit it was because she brought in over two hundred sixty thousand dollars a profitable business and she got thirty percent of that seventy nine thousand dollars and that doesn't include the mack quest account in two days before she wrote she brought in a three hundred thirty thousand dollars order from mapquest so if she's trying so hard to move the business if she's breaching her fiduciary duty how does she bring in correct i think the council runs from the agency arguments on the directed first issue in the post judgement issue as you said in bucholtz your honor that was a jury verdict and you took it away that because you disagree with a directed verdict issue i believe the argument that i had to tear today we asked for the phone records we gave the information to get them which was lawful and did know that we were using for that purposes we got the records and we used the phone records well once again my hypothetical i get a personal injury judgment ten million hire an asset search or i get the information about my the defendant that i know about i get the information from the defendant i use the information and somehow i'm liable if that person searching the assets did something wrong and the only lawyer with that i heard today and i consistently hear is that somehow we were brimful players were hopelessly turned away but i would submit that would never presented the jury there's no special wrong to that that was never considered by the court for the jury whatsoever employer succumbed at his employer to another employer and not only to succumb to he continued they continued to play the employees wages they got a premium for doing it ok and they still are the agent because they can control what the employee was doing with the concede once again and i think you hear this too often we did not sue ms lawyer for breach of confidentiality we don't maintain this with a trade secret we will maintain this was uniquely confidential information even though they spend a whole lot of time in this of the variance between the pros we don't have a separate course of action for breach of confidentiality we simply say that this letter ok is one vacuum it in a chain of evidence that demonstrates independently but the first page your brief points out this is a you call them and compete case and then all of your arguments many of your arguments i would suggest attempt to portray this isn't that compete case but y computer agreement that never hit the courtroom they did they fall into question if you look at the record on the website i'm talking about in terms of the case that was tried in front of the jury and in front of the judge there was no non computer agreement that's going was one that was signed and if you want this court to approve of verdict against the employee and an officer who diverted no business with no contract language at all understood it you were really arguing that this is a breach that is duty of an employee not to give a business opportunity to a third party exactly and that the business opportunity years according to you is this gross profit if during all of these negotiations mapquest doesn't know what the gross margin is and this lawler now is presumably national knows and then nobody knows that shamrock knows so is what you're saying is her breach of produce a duty not to give a business opportunity to a third party is the fact that she gave shamrock a competitive edge by knowing that they could it too fast take it out because i'm going to show rock and i'd like to take it there that's the bridge that is the bridge you know not that she knew the gross profit margin on mapquest it was giving it to show that may have happened there but i can't say there's no evidence to it in america say there's evidence to because when we asked him questions at his deposition in this was part of the case he refused to give us the information because he wasn't it was really to protect a fourth because he thought it was sensitive to this so the judge was was very clearly concerned that this was sensitive information was confidential inappropriate work chamar shamrock she meets them again she goes with her colleague ms hall and we have the affidavit and we have two things we have testimony by mr protests and mr mr clearly testify and the judge could use that as an operative fact that he did this happen david that he gave it to us that he keep it under oath that he never just about it to the day of trial that he did a second affidavit which he admitted under oath that he did not say a second  what it says he says something different and i can find that what he says on the stand as much from phil and i believe what is in the affidavit is and that the statements by mr pereira's and mr mr i have paris as to what mr bristow told  objection but we did offer that instruction out with regard to knowledge i have to point out that the special right of choice and knowledge was not limited ratification this is what the jury found and this is on one of the common our record five seven one two that north american move it discover obtained information about plaintiffs telephone calls without her other authorization through pretexting i mean they knew they got it from pretexting and i mean it's interesting the after she wrote the letter the other problem with their entire theory is they're trying to change it because they realize that the timing makes no sense as now they're trying to say well the wrongful conduct occurred after north american word about the