United States Court of Appeals 

For the First Circuit 

No. 19-1424 

IN RE: HIPAA SUBPOENA (PATIENT SERVICES, INC.) 

___________________ 

J. ARTHUR WOOD; KAREN MIDDLEBROOKS; 

MICHAEL HERBERT; AMY OLLETT, 

Petitioners, Appellants, 

v. 

UNITED STATES, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before 

Torruella, Boudin, and Kayatta, 

 Circuit Judges. 

Frank A. Libby, Jr., with whom Brian J. Sullivan and 

LibbyHoopes, P.C. were on joint brief, for appellant Wood. 

Bruce A. Singal, with whom Lauren E. Dwyer and Barrett & 

Singal, PC were on joint brief, for appellants Middlebrooks, 

Herbert, and Ollett. 

Gregg Shapiro, Assistant United States Attorney, with whom 

Andrew E. Lelling, United States Attorney, and Abraham R. George, 

Assistant United States Attorney, were on brief, for appellee. 
June 5, 2020 

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TORRUELLA, Circuit Judge. Intervenors-Appellants 

J. Arthur Wood, Karen Middlebrooks ("Middlebrooks"), Michael 

Herbert, and Amy Ollett (collectively "Appellants") appeal the 

district court's order reversing a magistrate judge's quashing of 

an administrative subpoena duces tecum. The magistrate judge 

found that Patient Services, Inc. ("PSI"), Appellants' employer, 

began recording telephone conversations from Middlebrooks's 

extension during the course of her employment as a Program Manager 

in PSI's call center, which was located on the second floor (where 

calls were regularly recorded), and intentionally continued 

recording Middlebrooks's calls after her promotion and subsequent 

transfer to the third floor (where calls were not regularly 

recorded), in violation of Title III of the Omnibus Crime Control 

and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 ("Title III"). 

The Government timely objected to the magistrate judge's ruling 

pursuant to 28 U.S.C. § 636(b)(1)(A), arguing that the magistrate 

judge's finding that the recordings violated Title III "was clearly 

erroneous because proof of a Title III violation requires evidence 

of intent," and Appellants had presented no evidence that PSI 

intended to continue intercepting and recording telephone 

conversations from Middlebrooks's extension after she relocated to 

the third floor. The district court sustained the Government's 

objection, finding that the magistrate's opinion was contrary to 
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law because he had inappropriately shifted the burden of proof to 

the Government. The district court held that Appellants bore the 

burden of proving that PSI's interception of calls from 

Middlebrooks's extension after her move to the third floor was 

intentional, and that they failed to meet their burden. 

Accordingly, the court reversed the magistrate's order that had 

quashed the subpoena. Appellants timely appealed. After careful 

consideration, we affirm. 

I. BACKGROUND 

A. Factual Background1

PSI is a non-profit organization operating in 

Midlothian, Virginia. It provides financial assistance to patients 

suffering from life-threatening diseases who are not otherwise 

fully covered by their insurance plans. PSI employs Patient 

Service Representatives, who handle over-the-phone inquiries from 

patients about financial assistance applications. PSI also 

employs Assistant Program Managers, who manage the Patient Service 

Representatives, as well as Program Managers, who supervise both 

Assistant Program Managers and Patient Service Representatives. 

1 Readers of this opinion should be careful to note that (aside 

from the allegation that PSI improperly recorded phone calls) the 

record contains no charge, and certainly no finding by any court, 

that any person or company named in this opinion has engaged in 

any misconduct at all. 
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Patient Service Representatives, Assistant Program Managers, and 

Program Managers work in the call center, which is located on the 

second floor of PSI's three-story building; the third floor is 

reserved mostly for executive-level employees. 

In or about May 2011, PSI purchased a new telephone 

system from NEC Corporation that allowed PSI to record telephone 

calls made to and from certain extensions. Cottrell Communications 

Corporation ("Cottrell") installed the system. PSI purchased 

recording licenses for each telephone extension from which it 

wished to record conversations. The recording licenses, which 

were manually assigned to specific extensions, operated through a 

"Record and Evaluate" software system. The system only recorded 

calls from the telephones connected to extensions with an assigned 

recording license. Each employee had a telephone extension 

assigned, which originated from the telephone jack located in the 

employee's office, rather than from the telephone itself. Thus, 

the recording licenses followed the employees' extensions rather 

than the telephones. 

In order to record calls from a specific extension, 

someone at PSI needed to log into its "Record and Evaluate" system, 

open the screens that listed the purchased licenses, and then drag 

and drop the purchased recording license to a specific extension. 

Once this process was completed, the recording system would 
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automatically record all calls made to and from the newly licensed 

extensions and store the recordings in the "Record and Evaluate" 

system server. NEC designed these recording licenses to 

continuously operate until the license was manually disabled 

through the same "Record and Evaluate" system that was used to 

assign them in the first place. 

Few PSI employees were involved in installing the new 

telephone system. James Grifasi ("Grifasi"), a Network Engineer 

at PSI, and his assistant, Chip Saunders ("Saunders"), worked with 

Cottrell contractors to install the new system. Grifasi was the 

only person authorized to order the extensions rewired, and 

Grifasi, Saunders, and two Cottrell contractors were the only 

individuals authorized to physically rewire the extensions. 

Furthermore, Grifasi and Saunders were the only two PSI employees 

with the administrator privileges required to access the recorded 

conversations. Both Grifasi and Saunders could access the "Record 

and Evaluate" system and see which extensions had been assigned 

recording licenses. The recording system was installed with the 

intent of only recording the calls of the Patient Service 

Representatives, Assistant Program Managers, and Program Managers 

working in PSI's second-floor call center, as well as those of a 

select group of employees working on the other floors. Generally, 

the system was not intended to record calls made by the executives 
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and other employees who worked on the third floor. Most 

administrative staff were also exempted from being recorded. 

PSI hired Middlebrooks as a Patient Service 

Representative in 2004, and then promoted her to a Program Manager 

position within the call center in 2006. At some point in 2011, 

PSI assigned Middlebrooks the extension 1306, which had a recording 

license. According to the established protocol, the "Record and 

Evaluate" system recorded Middlebrooks's calls from that line. In 

late 2011 or early 2012, PSI promoted Middlebrooks to the position 

of Manager of Program Development and moved her to an office on 

the third floor, where calls are typically not recorded. 

Generally, when PSI moved an employee to a new office, the employee 

would be assigned the extension number connected to the phone jack 

in the new office. However, Middlebrooks and at least one other 

employee retained their extensions when they were relocated to new 

offices on different floors.2

PSI had to take several steps to move an employee's 

extension from one office to another. The wires from each phone 

jack led to a central panel, called a "110 punch/wiring block." 

To move an extension, the wires connecting a particular phone jack 

to the central panel needed to be removed and then re-installed to 

2 The other employee moved from the second floor to the first 

floor. 
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a new line on the punch panel. This rewiring process did not 

affect the recording license assigned to an extension. Instead, 

the recording license remained in place even if the extension 

itself was moved from one office to another. In order to stop 

recording a particular extension, Grifasi or Saunders needed to 

log into the "Record and Evaluate" system and manually remove the 

license from that extension. When Middlebrooks was promoted and 

relocated to the third floor, PSI successfully transferred her 

extension to her new office on the third floor, but no one at PSI 

manually terminated the recording license that had been assigned 

to her extension on the second floor. Thus, the system continued 

recording calls that were placed from and received by her 

extension. PSI recorded several telephone conversations between 

Middlebrooks and the other appellants in this case after 

Middlebrooks moved to the third floor. 

B. Procedural Background 

In July 2016, when investigating whether PSI had engaged 

in an illegal kickback scheme involving pharmaceutical 

manufacturers and Medicare beneficiaries, pursuant to 18 U.S.C. 

§ 3486, the Government issued an administrative subpoena duces 

tecum to PSI for "[a]ll recorded conversations of PSI officers and 

employees." This appeal concerns only those conversations that 

were recorded on Middlebrooks's extension after she was promoted 
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and moved to the third floor.3 PSI contends that it first learned 

about the recordings in question after it was served with the 

subpoena. Only when PSI commenced its efforts to comply with the 

subpoena did Appellants learn that their conversations with 

Middlebrooks had been recorded without their knowledge or consent. 

Consequently, Appellants moved as intervenors to quash the 

subpoena, alleging that PSI's recording of their telephone 

conversations should not be produced because they were obtained in 

violation of Title III. In October 2017, the district court 

referred the case to Magistrate Judge Donald L. Cabell. 

After a motion hearing, on August 15, 2018, the 

magistrate judge issued an order granting Appellants' motion to 

quash. In re HIPAA Subpoena, No. 17-mc-91097 (D. Mass. Aug. 15, 

2018). The magistrate judge noted that PSI had intentionally 

intercepted and recorded calls from Middlebrooks's extension while 

she worked in PSI's call center on the second floor. Id. at 4, 

8. Then, after she was promoted, PSI intended to transfer her 

extension to her new office on the third floor. Id. at 5. The 

magistrate further noted that PSI knew that it needed to take a 

series of steps to successfully transfer her extension to the third 

3 The parties do not dispute that PSI could record Middlebrooks's 

calls when she worked as a Program Manager in PSI's second-floor 

call center. 
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floor, and that it needed to manually remove the recording license 

from the system in order to stop recording calls on Middlebrooks's 

extension. Id. at 5-6. Yet, PSI took all the steps necessary to 

transfer Middlebrooks's extension to the third floor but failed to 

manually remove the recording license. Id. at 6. The magistrate 

noted that "the evidence before the [c]ourt [did] not plainly 

explain why PSI failed to terminate the recording license when 

rewiring Middlebrooks'[s] extension," but he refused to find that 

this omission was the product of inadvertence or mistake because 

PSI had "remain[ed] silent" about why it failed to remove the 

recording license and, in any event, PSI "should have known when 

it rewired [Middlebrooks's] extension that her calls would 

continue to be recorded unless it acted to stop the practice." 

Id. at 9-11. Based on these findings, the magistrate judge 

concluded that PSI had continued to intentionally record calls on 

Middlebrooks's extension even after her relocation to the third 

floor, in violation of Title III, which merited the quashing of 

the subpoena. Id. at 11-12. 

The Government objected to the magistrate judge's order 

pursuant to 28 U.S.C. § 636(b)(1)(A). It argued that the magistrate 

judge's finding that the recordings violated Title III "was clearly 

erroneous because proof of a Title III violation requires evidence 

of intent, and there [was] no such evidence here." The Government 
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noted that Appellants bore the burden of proving intent, yet they 

had presented no evidence that PSI intended to continue 

intercepting and recording telephone conversations from 

Middlebrooks's extension after her relocation to the third floor. 

According to the Government, the evidence showed, at most, that 

PSI "made a mistake when it failed to stop recording Ms. 

Middlebrooks's line," which "may have been the product of 

negligence or gross negligence," but that was not enough to support 

a finding of intent. 

On April 4, 2019, the district court sustained the 

Government's objection to the magistrate judge's order and 

reversed the magistrate's quashing of the subpoena. In re HIPAA 

Subpoena, No. 17-91097, slip op. at 12 (D. Mass. April 4, 2019). 

The district court found that the magistrate's opinion was contrary 

to law because he had inverted the burden of proof by requiring 

the Government to prove that PSI had continued to record 

Middlebrooks's extension by inadvertence or mistake. Id. at 10. 

The district judge agreed that PSI meant to record Middlebrooks's 

telephone calls while she was on the second floor and should have 

been aware of the consequences of rewiring her extension to the 

third floor without simultaneously cancelling the recording 

license. Id. at 11. Nonetheless, it concluded that the magistrate 

judge relied on the absence of evidence explaining why PSI failed 
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to stop recording telephone conversations from Middlebrooks's 

extension instead of requiring Appellants to prove that it was 

PSI's conscious objective to continue to record Middlebrooks's 

conversations after her promotion. Id. at 11-12. Accordingly, 

the court reversed the magistrate's order that had quashed the 

subpoena. Id. at 12. Appellants timely appealed. 

II. DISCUSSION 

A. Standard of Review 

A district court may reconsider an order on a pretrial 

matter designated to a magistrate judge pursuant to 28 U.S.C. 

§ 636(b)(1)(A) if the magistrate judge's order is "clearly 

erroneous or contrary to law." Like the district court, this 

Court reviews the magistrate judge's factual findings for clear 

error. Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 

1999) (noting that, "[l]ike the district court, we review [the 

magistrate judge's] factual findings under the 'clearly erroneous' 

rubric" (citing 28 U.S.C. § 636(b)(1)(A))). This means that we 

accept the magistrate judge's findings of fact and the conclusions 

drawn therefrom unless, after analyzing the entire record, we "form 

a strong, unyielding belief that a mistake has been made." Id. 

(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 

(1st Cir. 1990)). We review de novo whether an order is contrary 

to law. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 
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(1st Cir. 2010) ("[W]e, like the district court, must afford de 

novo review to . . . purely legal question[s]."). 

B. Applicable Law 

Title III of the Omnibus Crime Control and Safe Streets 

Act of 1968, 18 U.S.C. §§ 2510-2522, also known as the Federal 

Wiretap Act,4 was enacted to "(1) protect[] the privacy of wire 

and oral communications, and (2) delineat[e] on a uniform basis 

the circumstances and conditions under which the interception of 

wire and oral communications may be authorized." United States 

v. Cartagena, 593 F.3d 104, 108 n.1 (1st Cir. 2010) (quoting 

Gelbard v. United States, 408 U.S. 41, 48 (1972)). It prohibits 

the intentional "interception[5] of telephone conversations, 

subject to certain exceptions [not applicable here], without a 

court order."6 United States v. Lewis, 406 F.3d 11, 14 (1st Cir. 

4 See United States v. Larios, 593 F.3d 82, 84 (1st Cir. 2010). 

Title III was amended by the Electronic Communications Privacy Act 

of 1986 ("ECPA"). Pub. L. No. 99-508, 100 Stat. 1848; see also 

Bartnicki v. Vopper, 532 U.S. 514, 524 (2001) (explaining some 

aspects in which the ECPA amended Title III and "enlarged [its] 

coverage"). 

5 "The statute defines 'intercept[ion]' 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.'" Larios, 593 F.3d at 90 (quoting 18 U.S.C. 

§ 2510(4)). 

6 One of the ways in which the ECPA amended Title III was by 

changing the state of mind requirement from "willful" to 

"intentional." In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 

2003) (explaining how the ECPA's legislative history makes 
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2005) (citing 18 U.S.C. §§ 2511, 2518); see also United States v. 

Councilman, 418 F.3d 67, 72 (1st Cir. 2005) (en banc). Title III 

further prohibits the subsequent use or disclosure of unlawfully 

intercepted communications, as well as their use as evidence "in 

any trial, hearing, or other proceeding in or before any court, 

grand jury, department, officer, agency, regulatory body, 

legislative committee, or other authority of the United States, a 

State, or a political subdivision thereof." 18 U.S.C. 

§§ 2511(1)(c), 2515. 

"Intentional" as used in the context of Title III "means 

more than that one voluntarily engaged in conduct or caused a 

result." In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003) 

(quoting S. Rep. No. 99–541, at 23 (1986), as reprinted in 1986 

U.S.C.C.A.N. 3555, 3577). Instead, the "conduct or the causing 

of the result must have been the person's conscious objective." 

Id. (quoting S. Rep. No. 99–541, at 23). Thus "[a]n 'intentional' 

state of mind means that one's state of mind is intentional as to 

one's conduct or the result of one's conduct if such conduct or 

result is one's conscious objective." Id. (quoting S. Rep. No. 

99–541, at 23). Consequently, "[a]n act is not intentional if it 

is the product of inadvertence or mistake." Id. (citing Sanders 

pellucid Congress's desire to require that the unlawful 

interception be "intentional"). 
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v. Robert Bosch Corp., 38 F.3d 736, 742–43 (4th Cir. 1994) and 

United States v. Townsend, 987 F.2d 927, 930 (2d Cir. 1993)). The 

party seeking protection under § 2515 against the use or disclosure 

of the unlawfully intercepted communications bears the burden of 

proving that a particular communication was intercepted 

intentionally in violation of Title III. See id. at 19. 

C. Analysis 

We are tasked with determining whether the magistrate 

judge clearly erred in finding that Appellants met their burden of 

proving that PSI's interception of Middlebrooks's extension after 

her relocation to the third floor was intentional. According to 

Appellants, the magistrate judge's finding of intent was supported 

by the evidence on the record and the inferences drawn therefrom, 

and thus was not clearly erroneous and should not have been 

disturbed by the district court. We disagree. 

To support his finding that PSI intended to continue 

intercepting Middlebrooks's extension, the magistrate judge, in 

essence, relied on the following facts: PSI started recording 

Middlebrooks's extension intentionally while she worked in the 

call center located on the second floor; PSI knew that it needed 

to affirmatively remove the recording license if it no longer 

wished to continue recording calls from that extension when it was 

rewired to the third floor; and PSI failed to take affirmative 
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steps to remove the license during the rewiring process. Based 

on this evidence, the magistrate judge inferred that PSI intended 

to continue recording calls on Middlebrooks's extension after her 

promotion and relocation to the third floor because PSI "should 

have known" that the recording would continue after the rewiring 

unless it took affirmative steps to end the recordings. 

The facts in the record, however, do not permit the 

inference drawn by the magistrate judge that PSI intended to 

continue the recordings after Middlebrooks was promoted and 

relocated to a floor where telephone conversations were usually 

not recorded. 

Although a reviewing court may not "reverse the finding 

of the trier of fact simply because it is convinced that it would 

have decided the case differently," Anderson v. City of Bessemer 

City, 470 U.S. 564, 573 (1985), the deference owed to the 

inferences made by a trier of fact is not limitless. In order for 

the fact-finder's inferences to stand, they must be reasonable and 

drawn from the evidence in the record. See United States v. 

Espinoza, 490 F.3d 41, 46 (1st Cir. 2007). 

Here, the inference of intent drawn by the magistrate 

judge was not supported by the record. Although the magistrate 

might have been right that PSI "should have known when it rewired 

[Middlebrooks's] extension that her calls would continue to be 
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recorded unless it acted to stop the practice," that PSI "should 

have known" that the recordings would continue is not sufficient 

to adequately establish the intent necessary to find a Title III 

violation. See, e.g., United Sates v. Ford, 821 F.3d 63, 73 

(1st Cir. 2016) (holding that enabling a jury to find mens rea on 

a "should have known" basis would enable it to improperly "convict 

one who was merely negligent in failing to know"). Perhaps PSI 

acted negligently or even with gross negligence in failing to 

remove the recording license, but neither negligence nor gross 

negligence satisfies the intent element required to find a Title 

III violation. See In re Pharmatrak, Inc. Privacy Litig., 

292 F. Supp. 2d 263, 267-68 (D. Mass. 2003) (noting that a theory 

of negligence or gross negligence "is [not] sufficient to satisfy 

the specific intent requirement under the EPCA"). 

Furthermore, the magistrate judge's finding of intent 

was based in part on PSI's failure to proffer evidence excusing 

its omission to remove the recording license on Middlebrooks's 

extension after her promotion and relocation to the third floor. 

See In re HIPAA Subpoena, No. 17-mc-91097, slip op. at 9-11 (noting 

that PSI opted to "remain silent" about its omission). Yet, PSI 

did not have to prove mistake or inadvertence on its part because 

it did not bear the burden of proof. It was Appellants who needed 

to prove that PSI intentionally continued recording Middlebrooks's 
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calls after she moved offices.7 See In re Pharmatrak, Inc., 

329 F.3d at 19. 

Because of what PSI "should have known" and its decision 

to "remain silent," the magistrate chose "between competing 

hunches," and sided with Appellants' theory. The magistrate judge 

clearly erred in so doing, as neither what PSI should have known 

nor its failure to prove mistake or inadvertence were adequate 

grounds to find intent on a mere "hunch."8 Furthermore, the 

record, read as a whole, undermines any inference supporting a 

finding that PSI intentionally recorded calls on Middlebrooks's 

extension once she became Manager of Program Development. 

It is undisputed that PSI bought the recording licenses 

with the intent to record calls made to and from the extensions 

assigned to certain positions, such as Patient Service 

7 We note that although the magistrate judge acknowledged at the 

motion hearing that Appellants bore the burden of proof, he then 

made some inconsistent statements in his opinion and order. See, 

e.g., In re HIPAA Subpoena, No. 17-mc-91097, slip op. at 9-10 

(explaining how "even accepting that there may be a basis to reason 

that inadvertence or mistake led to the interception of 

Middlebrooks'[s] calls, the evidence before the Court does not 

plainly explain why PSI failed to terminate the recording license 

when rewiring Middlebrooks'[s] extension"). 

8 We note that any inference as drawn by the magistrate from PSI's 

silence is undercut by the fact that PSI, as the target of the 

investigation, likely had little if any incentive to say anything 

that would undercut the position of its employees in attempting to 

quash the subpoena. 
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Representatives, Patient Managers, and Assistant Patient Managers. 

The evidence in the record is that when PSI first assigned the 

recording license to Middlebrooks's extension, it did so because 

she held the position of Program Manager, and not because of some 

other ulterior motive. Middlebrooks was then transferred to the 

third floor of PSI's offices when she was promoted to the position 

of Manager of Program Development, and there is no evidence in the 

record indicating that PSI regularly recorded the calls of other 

employees in that position. 

Appellants needed to prove not merely that PSI's actions 

or omissions caused the continuing recording of calls on 

Middlebrooks's extension, but rather that the continuing recording 

was the result of PSI's "conscious objective"; that is, that PSI 

did not remove the recording license because it had the intention 

to continue recording her extension.9 See In re Pharmatrak, Inc., 

329 F.3d at 23 (holding that "intentional" for Title III purposes 

means that it was the result of "the person's conscious 

objective"). Nevertheless, Appellants have not set forth any 

evidence showing that PSI was even aware of the recordings' 

9 We note that in a case like this an inference of intent is more 

difficult to draw from a failure to remove a line from a group of 

recorded phones than it might have been had the line been added to 

a group of recorded phones. 
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existence until after it was served with the subpoena.10 This lack 

of evidence undermines the magistrate's finding that PSI 

"intended" to continue recording Middlebrooks's calls after she 

was promoted. See Tyger v. Precision Drilling Corp., No. 4:11-

CV-01913, 2018 WL 1744681, at *2 (M.D. Pa. Apr. 11, 2018) (holding 

that plaintiffs failed to satisfy the "intent" element to a Title 

III violation where testimony indicated that an audio recording 

was the result of inadvertence because the defendant was never 

aware that his camcorder had an audio recording function until he 

was alerted to that fact by plaintiffs' counsel); see also Abraham 

v. Cty. of Greenville, 237 F.3d 386, 392 (4th Cir. 2001) (holding 

that intent to record the judges' calls could be inferred based on 

"ample circumstantial evidence" put forth by plaintiffs, including 

a confidential memorandum prepared by the county official who 

decided to install the recording system explaining that the 

plaintiff-judges' lines were being recorded). Here, although 

perhaps PSI "should have known" that Middlebrooks's extension 

would continue to be recorded after she was transferred to the 

10 Appellants argue that because Grifasi, one of the few employees 

at PSI authorized to access the "Record and Evaluate" system, could 

see which extensions had been assigned recording licenses in the 

system, he must have seen that Middlebrooks's extension was still 

being recorded. Again, what Grifasi could have seen is not enough 

to support a finding that PSI intended to continue recording 

Middlebrooks's extension. 
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third floor unless it affirmatively removed the license assigned 

to said extension, Appellants have not proffered any proof 

indicating that PSI did, in fact, know that the recording 

continued. Nor is there any evidence in the record that PSI had 

a motive to continue recording Middlebrooks's extension after her 

promotion, from which it could be inferred that the continued 

recording was the result of PSI's "conscious objective." In re 

Pharmatrak, Inc., 329 F.3d at 23 (noting that, although there is 

"authority suggesting that liability for intentionally engaging in 

prohibited conduct does not turn on an assessment of the merit of 

a party's motive," motive is not "entirely irrelevant in assessing 

intent" because "[a]n interception may be more likely to be 

intentional when it serves a party's self-interest to engage in 

such conduct" (citations omitted)). 

Based on the foregoing, we conclude that the magistrate 

judge clearly erred in finding that Appellants met their burden of 

proving that PSI's interception of Middlebrooks's extension after 

her relocation to the third floor was intentional. The record 

lacks evidence showing that PSI had the intent to continue 

recording Middlebrooks's extension after her promotion, or a 

motive to do so. Settling for one of the "competing hunches" 

because PSI "should have known" that the recording would continue 

or because the Government did not "plainly explain why PSI failed 
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to terminate the recording license when rewiring Middlebrooks'[s] 

extension" is not enough to support a finding that PSI had the 

conscious objective to continue intercepting Middlebrooks's calls 

after she was promoted and relocated to the third floor. 

III. CONCLUSION 

In light of the foregoing, we affirm the district court's 

order reversing the magistrate judge's grant of Appellants' motion 

to quash the subpoena duces tecum as to the recordings of 

Middlebrooks's extension after she was relocated to the third floor 

of PSI's offices. 

Affirmed.