                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

COUNCIL ON AMERICAN-ISLAMIC
RELATIONS ACTION NETWORK, INC.,
et al.,
        Plaintiffs                                   Civil Action No. 09-2030 (CKK)
        v.
PAUL DAVID GAUBATZ, et al.,
     Defendants

                      MEMORANDUM OPINION and ORDER
                             (August 24, 2015)
    On March 27, 2014, the Court granted in part and denied in part Defendants’ [154]
Motion for Summary Judgment. See Council on American-Islamic Relations Action
Network v. Gaubatz (“CAIR IV”), 31 F. Supp. 3d 237 (D.D.C. 2014). On March 6, 2015,
the Court denied Defendants’ [175] Motion for Reconsideration with respect to CAIR IV.
That same date, the Court denied-in-part and granted-in-part Defendants’ [180] Renewed
Motion for Summary Judgment. See Council on American-Islamic Relations Action
Network v. Gaubatz (“CAIR V”), 2015 WL 1021280 (D.D.C. Mar. 6, 2015). The Court
denied the motion as to the trespass claim against Chris Gaubatz, and granted the motion
in all other respects. As relevant here, the Court granted summary judgment to
Defendants on the breach of fiduciary duty claim because Plaintiffs had not identified any
basis in the record for any loss or damage resulting from the purported breach of
fiduciary duty. See id. at *5. Now before the Court is Defendants’ second motion for
reconsideration regarding certain decisions in CAIR IV. For the reasons stated below, the
Court, in its discretion, finds once again that reconsideration of the Court’s March 27,
2014, Memorandum Opinion and Order, is not warranted. 1 Defendants’ [198] Motion for
Reconsideration is DENIED.
     “The Court has broad discretion to hear a motion for reconsideration brought under
Rule 54(b).” Flythe v. D.C., 4 F. Supp. 3d 216, 218 (D.D.C. 2014) (quoting Isse v. Am.
Univ., 544 F. Supp. 2d 25, 29 (D.D.C. 2008)). “[T]his jurisdiction has established that
reconsideration is appropriate ‘as justice requires.’” Cobell v. Norton, 355 F. Supp. 2d
531, 540 (D.D.C. 2005). In general, “a court will grant a motion for reconsideration of an
interlocutory order only when the movant demonstrates: (1) an intervening change in the
law; (2) the discovery of new evidence not previously available; or (3) a clear error in the
first order.” Stewart v. Panetta, 826 F. Supp. 2d 176, 177 (D.D.C. 2011) (quoting Zeigler
v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008)).

1
  The Court presumes familiarity with its previous opinions in this case, which
thoroughly review this case’s factual and procedural background.

                                             1
    Defendants argue that there have been two intervening changes of law that warrant
reconsideration. First, they argue that there was a change in the law in light of the Court’s
decision in CAIR V to grant summary judgment to Defendants on the breach of fiduciary
duty claim because, they argue, certain Wiretap Act claims are dependent on liability for
a breach of fiduciary duty. Second, they argue that the Supreme Court’s decision in
Elonis v. United States, 135 S. Ct. 2001 (2015), requires this Court to reconsider its
decision that there was no knowledge requirement for use and disclosure liability and for
procurement liability under the D.C. Wiretap Act. The Court disagrees and concludes that
neither is an intervening change in law that warrants reconsideration of the Court’s prior
decisions.
Summary Judgment on the Breach of Fiduciary Duty Claim
    On March 26, 2014, the Court denied summary judgment to Chris Gaubatz with
respect to liability under the Federal and D.C. Wiretaps Acts with respect to recordings
where Chris was a party to the recordings because the Court concluded that there was a
genuine issue of material fact as to whether an exception to the one-party consent rule
applied. As the Court stated, establishing an exception to the one-party consent rule
requires showing ‘‘either (1) that the primary motivation, or (2) that a determinative
factor in the actor’s motivation in intercepting the conversation was to commit’ a
criminal or tortious act.” CAIR IV, 31 F. Supp. 3d at 256-57. The Court concluded that
there was a genuine issue of material fact as to “whether the breach of a fiduciary duty
was the primary motivation for, or at least a determinative factor motivating Chris
Gaubatz when he intercepted conversations at CAIR–F.” Id. at 259. On March 6, 2015,
the Court granted summary judgment to the Defendants with respect to Plaintiffs’ breach
of fiduciary duty claim. See CAIR V, 2015 WL 1021280, at *5. The Court concluded that
Plaintiffs could not satisfy the third element of the fiduciary duty claim because they had
not shown, based on the record, that they had suffered any injury as a result of the alleged
breach of fiduciary duty. See id. The Court did not draw any conclusions about evidence
as to the other two elements of a breach of fiduciary duty claim—the existence of a
fiduciary duty and a breach of that duty. See id. Plaintiffs now argue that the Court’s
conclusion that Plaintiffs had not shown evidence of injury fatally undermines the
Court’s previous conclusion that there was a genuine issue of material fact as to “whether
the breach of a fiduciary duty was the primary motivation for, or at least a determinative
factor motivating Chris Gaubatz when he intercepted conversations at CAIR–F.” CAIR
IV, 31 F. Supp. 3d at 259. The Court disagrees.
    Nowhere did the Court suggest that one-party consent exception required being able
to actually prevail on a breach of a fiduciary duty claim. Nor did the Court suggest that
the exception depended on being able to show actual injury as a result of the breach of
fiduciary duty. In fact, the Court suggested the contrary. In CAIR IV, the Court noted that,
“[i]f Chris Gaubatz understood himself to be bound by a fiduciary duty of non-disclosure,
then it appears obvious that the breach of this fiduciary duty was the primary motivation,

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or at least a motivating factor, in his interception of the communications at issue.” Id. at
259; see also id. at 261 (“The question of whether Chris Gaubatz understood himself to
be bound by and violating a duty of confidentiality and non-disclosure in recording
conversations from Plaintiffs’ offices is a factual dispute appropriately resolved by a jury.
If he did, his interception of conversations at CAIR–F, even in cases where he was party
to the conversation, would not be protected by the one-party consent rule.”). These
statements strongly suggest that Chris’s understanding of his duties and his intentions in
intercepting the communications are determinative in applying the exception, not whether
any injury ultimately occurs.
    That understanding is just as sensible today as it was on March 26, 2014. Whether the
tortious purpose exception to the one-party consent rule is applicable rightfully depends
on the interceptor’s intentions ex ante—not on whether, ex post, any injury actually
occurred. Otherwise the applicability of the exception would turn on the happenstance of
whether any injury occurred as a result of the putative breach of fiduciary duty.
Accordingly, the Court’s conclusion that Plaintiffs had not shown injury based on the
record—and therefore granted summary judgment on the fiduciary duty claim—is
immaterial to the viability of the tortious purpose exception to the one-party consent
rule. 2
    Plaintiffs also urge the Court to reconsider the denial of summary judgment with
respect to use and disclosure liability of Defendants David Gaubatz, Christine Brim and
CSP under the Federal Wiretap Act, specifically with respect to those recordings in which
Chris’s presence was apparent. However, the Court already effectively resolved this
question in CAIR IV. 3 With respect to these Defendants, the Court concluded that there
were genuine issues of material fact as to whether they “were on notice of facts
suggesting that these conversations were not protected by the one-party consent rule.” Id.
at 262; see id. at 262-63. Nowhere did the Court suggest that the genuine issues were
dependent on actual liability for breach of fiduciary duty or, specifically, dependent on
demonstration of loss or damage as a result of a breach of fiduciary duty. Indeed, the

2
  Insofar as Plaintiffs suggest that there is no basis for the exception because there is no
evidence in the record that Chris Gaubatz acted for the purpose of a breach of fiduciary
duty, that claim is wholly unconnected to the supposed basis for this motion—the Court’s
2015 grant of summary judgment on the breach of fiduciary duty claim. In any event, that
claim by Plaintiffs is belied by the Court’s previous statements. See, e.g., CAIR IV, 31 F.
Supp. 3d at 260 (“Indeed, there is some evidence in the record to suggest he did act with
this purpose or at least that it was a determinative factor.”).
3
  Because the Court concluded that use and disclosure liability and procurement liability
under the D.C. Act do not require actual or presumed knowledge of an underlying
violation, see CAIR IV, 31 F. Supp. 3d at 264, 266, and because the Court declines to
reconsider that conclusion here, Plaintiffs’ arguments regarding the impact of summary
judgment on the breach fiduciary duty claim are simply inapplicable to those claims.

                                             3
language of CAIR IV suggests the contrary. With respect to Brim (and by extension CSP),
the Court reasoned, “[i]f Brim did take a more involved role in reviewing the content of
these recordings, and observed that Chris Gaubatz (1) may not have been a party to all
conversations intercepted, and (2) may have been bound by a duty of non-disclosure, she
could have known or had reason to know, with presumed knowledge of the law, that these
recordings were in violation of the Federal Wiretap Act.” Id. at 263. This conclusion—
like the Court’s related conclusion with respect to David Gaubatz—is unaffected by
Court’s grant of summary judgment on the breach of fiduciary duty claim. In sum,
whether or not there was actual liability for a breach of fiduciary duty, including, in
particular, whether Plaintiffs had demonstrated any actual loss or damages, is immaterial
to the conclusion that there is a genuine issue of material fact as to whether Defendants
were on notice of facts that gave them presumed knowledge that Chris Gaubatz
intercepted the communications for a tortious purpose.
The Supreme Court’s Decision in Elonis v. United States
    Defendants rely on Elonis to challenge the Court’s previous conclusions that neither
use and disclosure liability nor procurement liability under the D.C. Wiretap Act requires
a defendant to “know or have reason to know that the underlying interception was made
in violation of the D.C. Wiretap Act.” CAIR IV, 31 F. Supp. 3d at 266; see id. at 264-65.
In Elonis, the Supreme Court examined a Federal criminal prohibition stating that “an
individual who ‘transmits in interstate or foreign commerce any communication
containing any threat to kidnap any person or any threat to injure the person of another”
is guilty of a felony and faces up to five years’ imprisonment.” Elonis v. United States,
135 S. Ct. at 2008 (quoting 18 U.S.C. § 875(c)). While the statute did not specify a
required mental state for criminal liability, the Supreme Court inferred a required mental
state based on the principal that “[t]he fact that the statute does not specify any required
mental state, however, does not mean that none exists.” Elonis, 135 S. Ct. at 2009.
     Elonis simply does not control these circumstances. In Elonis, the Supreme Court
relied on longstanding principles guiding the interpretation of Federal criminal laws. See
id. (citing Morissette v. United States, 342 U.S. 246, 250 (1952); id. at 2010 (“When
interpreting federal criminal statutes that are silent on the required mental state, we read
into the statute ‘only that mens rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.’”) (citation and quotation marks omitted) (emphasis added).
Elonis is not a constitutional ruling and does not govern this Court’s interpretation of the
District of Columbia Wiretap Act. Defendants state that there is no authority to suggest
that civil liability and criminal liability could diverge under a statute where civil liability
is linked to criminal liability—such as the Wiretap Act. However, they do not identify
any authority to suggest that, just because mens rea ought to be inferred under a criminal
liability provision, it must be inferred for civil liability as well. Ultimately, Defendants
aim to leap from the Supreme Court’s inference of a required mental state under an
unrelated Federal criminal statute to an inference of a required mental state under the

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civil liability provisions of the D.C. Wiretap Act. That is (at least) one bridge too far. The
Court previously conducted a thorough statutory analysis of the provisions of the D.C.
Wiretap Act in arriving at its conclusions regarding the elements of use and disclosure
and of procurement liability. Elonis does not provide a basis to revisit those conclusions
now. 4
                                      *       *       *
    In sum, the Court concludes that neither the Court’s previous decision granting
summary judgment to Defendants with respect to the breach of fiduciary duty claim nor
the Supreme Court’s opinion in Elonis is an intervening change of law that warrants
reconsideration regarding the Court’s previous decisions. Nor have Defendants
demonstrated any other basis that justifies reconsideration at this time. Accordingly, the
Court DENIES Defendants’ Motion for Reconsideration.
    It if further ORDERED that the parties shall file a Joint Status Report by no later
than September 15, 2015, informing the Court how they wish to proceed in this action.
Once again, the Court is willing to refer this case to mediation, if the parties wish to
pursue that option. Otherwise, the Court shall set a Pre-trial Conference in order to set a
schedule for pre-trial activities.

       SO ORDERED.

                                                           /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




4
  Insofar as Defendants suggest that the D.C. and Federal Wiretap Acts are interpreted
similarly, that argument fails because the acts differ materially with respect to language
suggesting the necessity of a particular state of mind. See CAIR IV, 31 F. Supp. 3d at 264,
265. The Court considered those differences explicitly in arriving at its conclusion
regarding the proper interpretation of the D.C. Wiretap Act. Plaintiffs have provided no
basis for reconsidering those conclusions now. Furthermore, insofar as Defendants argue
that principles of statutory interpretation used by the D.C. Court of Appeals suggest that
some state of mind must be inferred with respect to criminal liability under the D.C.
Wiretap Act—and, therefore, to the civil liability provisions, as well, Plaintiffs suggest—
Plaintiffs point to no intervening change of law or other any other basis that would
warrant reconsideration of the Court’s previous conclusions.

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