PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL B. ABRAHAM; SHIRLEY B.
KEATON; DON HENSLEY; HARRY H.
NELSON; MILDRED J. STOKES,
individually and on behalf of all
others similarly situated,
Plaintiffs-Appellees,

v.
                                                               No. 00-1150
COUNTY OF GREENVILLE, South
Carolina,
Defendant-Appellant,

and

PERRY EICHOR; JAMES E. MCDONALD;
JAMES M. DORRIETY; DAVID WALKER,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-98-3201-6-13)

Argued: November 2, 2000

Decided: January 10, 2001

Before WILKINSON, Chief Judge, and WILKINS and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Wilkins and Judge Motz joined.

_________________________________________________________________
COUNSEL

ARGUED: Brent Overton Edgar Clinkscale, WOMBLE, CARLYLE,
SANDRIDGE & RICE, Greenville, South Carolina, for Appellant.
James Edward Bradley, WILSON, MOORE, TAYLOR & O'DAY,
West Columbia, South Carolina, for Appellees. ON BRIEF: Jacque-
lyn D. Austin, Riche T. McKnight, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, Greenville, South Carolina; Boyd B. Nicholson,
Jr., HAYNSWORTH, MARION, MCKAY & GUERARD, L.L.P.,
Greenville, South Carolina, for Appellant. S. Jahue Moore, David L.
Thomas, WILSON, MOORE, TAYLOR & O'DAY, West Columbia,
South Carolina, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Several state court judges brought suit against the County of
Greenville, South Carolina, under the federal wiretapping statute
(Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. §§ 2510 et seq.). Plaintiffs allege that the County illegally
recorded the telephone calls they made from their offices in the Coun-
ty's Detention Center. Greenville County argues that its conduct was
excused by the "law enforcement exception" to Title III, which per-
mits wiretapping conducted by an "investigative or law enforcement
officer in the ordinary course of his duties." 18 U.S.C.
§ 2510(5)(a)(ii). The district court rejected this argument as a matter
of law. Because the County did not record the judges' phone conver-
sations in the ordinary course of its law enforcement duties, and
because the district court otherwise acted within its discretion, we
affirm the judgment in favor of plaintiffs.

I.

In 1994, Greenville County, South Carolina completed construc-
tion on its new Detention Center. The Detention Center contained a
jail, visitation facilities, and offices for law enforcement and adminis-
trative personnel. A separate section of the Detention Center con-

                   2
tained offices and courtroom facilities for city and county judges.
This area was known as the Judicial Corridor.

While building the new facility, the County installed a recording
system in the Detention Center. The system recorded incoming and
outgoing telephone calls, seven days per week, twenty-four hours a
day. According to the County, the system was intended to record the
calls of the Detention Center's administrative personnel and the
guards in the jail. The County contends that it installed the system for
safety reasons and to ensure that Detention Center employees were
properly carrying out their duties. In the past, private citizens had
called the Detention Center complaining about prisoner mistreatment
and other illegal conduct by the guards. The County believed that
recording incoming calls would allow it to more fully investigate
these complaints. Greenville County notified the guards and the
administrative personnel in the Detention Center about the recording
system. The County required these employees to sign consent forms
acknowledging that their phone conversations might be monitored.

The system did not record all calls into the Detention Center. For
instance, it excluded phones meant for use by inmates and attorneys.
Nor did it record the pay phones in the Detention Center's lobby.
However, the system did record the telephones in the Judicial Corri-
dor. These included the lines used by the city and county judges.
Whether the County intentionally or mistakenly recorded the judges
was vigorously disputed at trial. Whatever the reason, it is clear that
Greenville County never notified the judges that their calls were being
recorded. In early 1998, the County installed a new recording system
at the Detention Center. Again, this system recorded telephones in the
Judicial Corridor.

In August 1998, Michael B. Abraham, a City Administrative
Judge, began to suspect that his phone in the Judicial Corridor was
wiretapped. On September 3, 1998, James McDonald, the jail admin-
istrator, confirmed Abraham's suspicions. McDonald informed Abra-
ham that it was not possible for the County to remove the telephone
lines in the Judicial Corridor from the recording system. According
to McDonald, the recording system was attached to a single trunk
line. Since the judges' extensions were part of that trunk line, they
could not be individually removed from the system. On September

                  3
30, 1998, Greenville County deactivated the Detention Center's entire
recording system.

Abraham and several other judges subsequently brought suit
against Greenville County and four individual defendants in state
court under the federal wiretapping statute (Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et
seq.). The defendants removed the suit to federal district court. A jury
trial then commenced. On October 5, 1999, the district court declared
a mistrial after determining that Greenville County had committed
discovery abuses. The district court ordered Greenville County to
engage in additional depositions and other discovery. Subsequently,
plaintiffs agreed to dismiss the individual defendants in the case.

At the new trial in November 1999, the jury awarded plaintiffs
$276,660.00 in damages. Greenville County subsequently moved,
pursuant to Fed. R. Civ. P. 50(b), 59(a), and 59(e), for either a judg-
ment as a matter of law, a new trial, or a remittitur and an amendment
to the judgment. On November 24, 1999, plaintiffs filed a petition for
attorneys' fees and costs pursuant to 18 U.S.C.§ 2520(b)(3). The dis-
trict court denied Greenville County's motion in its entirety and
granted plaintiffs' petition. Greenville County now appeals.

II.

A.

Title III of the Omnibus Crime Control and Safe Streets Act pro-
vides a civil remedy against any person who "intentionally intercepts"
another person's wire, oral, or electronic communications. See 18
U.S.C. § 2520(a) & 18 U.S.C. § 2511(1)(a); see also Sanders v. Rob-
ert Bosch Corp., 38 F.3d 736, 739-40 (4th Cir. 1994). The term "in-
tercept" means the acquisition of such communications through the
use of any "electronic, mechanical, or other device." 18 U.S.C.
§ 2510(4). However, Title III creates a law enforcement exception by
defining "electronic, mechanical, or other device" to exclude equip-
ment "being used by . . . an investigative or law enforcement officer
in the ordinary course of his duties." 18 U.S.C.§ 2510(5)(a)(ii).

                  4
Protecting the privacy of individuals who use the specified means
of communication "was an overriding congressional concern [in
enacting Title III]." Gelbard v. United States, 408 U.S. 41, 48 (1972).
Title III commands respect for conversational privacy by requiring
resort to the same system of warrants and neutral and detached review
that has historically been used to safeguard the integrity of the person
and of property. See 18 U.S.C. § 2516 (requiring a warrant for elec-
tronic eavesdropping not within one of the statutory exclusions). Title
III represents an attempt by Congress to establish a system of elec-
tronic surveillance subject to rigorous safeguards. It protects an indi-
vidual from all forms of wiretapping except when the statute
specifically provides otherwise.

B.

Greenville County claims that the law enforcement exception
excuses its recording of plaintiffs' telephone calls. However, monitor-
ing the judges' calls simply was not part of the"ordinary course" of
the County's law enforcement duties. See 18 U.S.C. § 2510(5)(a)(ii).*
The County did not have an established policy of monitoring plain-
tiffs' calls. Indeed, the County contends that it recorded the judges
only by mistake. Likewise, several of the individuals responsible for
the installation and maintenance of the recording system testified that
they knew that it was wrong to record the judges. Furthermore, the
County has not suggested that it had any valid, law-enforcement
related reason to record the judges. The judges were not under investi-
gation and they were not suspected of breaking any law in the past.

The County argues, however, that the pertinent question under the
law enforcement exception is not whether the recorded conversations
relate to the County's law enforcement duties, but whether the record-
ing device itself is being used in the ordinary course of the County's
duties. The County contends that it has satisfied the only relevant
inquiry under the law enforcement exception: namely, it has shown
that it installed the recording device in the Detention Center for a
_________________________________________________________________
*For this reason, it is unnecessary to decide whether the county offi-
cials who installed the recording system were "investigative or law
enforcement officer[s]" under the law enforcement exception. See 18
U.S.C. §§ 2510(5)(a)(ii) & 2510(7).

                  5
legitimate law enforcement purpose. The County maintains that the
fact that the system innocently captured some additional conversa-
tions is irrelevant.

While the law enforcement exception is indeed generous in scope,
the County's argument proves too much. The law enforcement excep-
tion does not authorize all conversations to be recorded by a wiretap-
ping device so long as the device captured some conversations in the
ordinary course of a law enforcement officer's duties. Rather, the law
enforcement exception specifically focuses on whether the device is
"being used . . . by an investigative or law enforcement officer in the
ordinary course of his duties." 18 U.S.C. § 2510(5)(a)(ii) (emphasis
added). Under the exception, some uses of the recording device are
excused, while other uses are not. Thus, the incidental recording of
guards' personal conversations on a prison's main telephone line
would be covered by the exception, if the recording device was
"being used" within the ordinary course of a prison warden's duties
to record calls from the public into a prison. See Amati v. City of
Woodstock, 176 F.3d 952, 955-56 (7th Cir. 1999).

This concept, however, is not a limitless one. As the district court
noted, the courts "have considered different categories of phone calls
recorded by a single recording system separately for application of the
law enforcement exception." See, e.g. , Crooker v. United States Dep't
of Justice, 497 F. Supp. 500, 503-04 (D. Conn. 1980) (distinguishing
between inmates' personal calls and inmates' calls to their attorneys).
Such an approach is necessary to prevent the law enforcement excep-
tion from swallowing the rule. See Amati, 176 F.3d at 955 (rejecting
an open-ended interpretation of the exception to prevent it from over-
taking Congress' intent). Very often, judges, attorneys, and other
administrators share the same facilities with law enforcement person-
nel. If the law enforcement exception looked only to the wiretapping
device, then law enforcement agencies could record all of the tele-
phone lines in a building so long as some lines were monitored in the
ordinary course of the law enforcement officers' duties. This cannot
be what Congress meant. The law enforcement exception may not be
read to allow a single recording device to deconstruct the whole sys-
tem of separation of powers and permit law enforcement officers to
routinely record the daily conversations of judges who may sit in
cases to which law enforcement is a party.

                  6
The County contends that such widespread wiretapping could be
prevented by limiting the exception only to cases in which the addi-
tional calls were recorded in good faith. However, Title III provides
no basis for a good faith addition to the law enforcement exception.
It is not our place to create a good faith exception where one does not
exist. See 18 U.S.C. § 2520(d) (creating certain good faith defenses
for violations of the wiretapping statute). The Act puts the onus upon
the wiretapper to ensure that his activities are appropriate. In this
case, the County could have ensured that its system would not subject
the judges' calls to surveillance. When the recording system was
installed in 1994, a county official told the workers who were install-
ing the system not to record the lines used by the prisoners or their
attorneys. The same official also should have instructed the workers
not to record the judges' lines. We cannot expand the scope of the law
enforcement exception to cover the County's alleged good faith mis-
take.

It is important to note, however, that the questions of whether the
law enforcement exception applies and whether the County "inten-
tionally intercepted" the judges' communications are separate
inquires. Our determination that the law enforcement exception lacks
a good faith component would not prevent the County from arguing
that it did not "intentionally intercept" these conversations as required
by 18 U.S.C. § 2511(1)(a); see also Sanders v. Robert Bosch Corp.,
38 F.3d 736, 742-43 (4th Cir. 1994) (holding that under the Federal
Wiretap Act, civil liability only attaches to intentional interceptions
not inadvertent ones). In fact, the County made precisely this argu-
ment. The jury simply did not believe that the County's recording of
the judges was inadvertent.

Our holding is a narrow one. We do not impugn the County's need
to monitor for law enforcement purposes calls relating to Detention
Center inmates and employees. See Amati, 176 F.3d at 955-56 (law
enforcement exception applies to detention center's recording of calls
to and from police station which captured employees' personal calls);
United States v. Van Poyck, 77 F.3d 285, 291-92 (9th Cir. 1996) (law
enforcement exception applies to detention center's recording of tele-
phone calls by inmates); United States v. Paul , 614 F.2d 115, 116-17
(6th Cir. 1980) (same). Likewise, we do not suggest that overhearing
personal conversations while conducting legitimate wiretapping activ-

                  7
ities violates Title III. Such incidental overhearing is endemic to sur-
veillance. See Amati, 176 F.3d at 956 ("That personal as well as
official calls were made on the line is irrelevant; all employees make
personal calls on company phones; if all the lines are taped, as is the
ordinary practice of police departments, then the recording of per-
sonal as well as of official calls is within the ordinary course.").
Rather, we hold simply that the County's recording of the judges was
not a legitimate surveillance activity because it did not occur in the
ordinary course of the County's law enforcement duties. The district
court properly determined that the law enforcement exception did not
apply as a matter of law.

III.

The County also asserts numerous challenges to the actions of the
district court in connection with the trial.

A.

The County argues that the district court failed to give the proper
instruction with regard to whether the County "intentionally inter-
cepted" the judges' communications. See 18 U.S.C. § 2511(1)(a). The
court instructed the jury:

       An act is done intentionally if it is done knowingly or pur-
       posefully. That is, an act is intentional if it is the conscious
       objective of the person to do the act or cause the result. An
       act is not intentional if it is the product of inadvertence or
       mistake. However, the defendant's motive is not relevant
       and the defendant needs not to have intended the precise
       results of its conduct or have known its conduct violated the
       law.

The County argues that the district court's instruction failed to make
clear that conversations recorded inadvertently cannot serve as the
basis for an action under Title III. In its 1986 amendments, Congress
changed the state of mind requirement in section 2511 from "will-
fully" to "intentionally." The County asserts Congress did so in order
to avoid liability in cases such as this -- namely, where the County

                  8
willfully recorded conversations in the Detention Center, but did not
specifically intend to record plaintiffs' conversations.

We do not think that the district court's instruction was improper.
The court's instruction was consistent with Fourth Circuit caselaw as
announced in Sanders v. Robert Bosch Corp., 38 F.3d 736 (4th Cir.
1994). Sanders noted that after the 1986 amendments, section 2511
now requires "that interceptions be intentional before liability
attaches, thereby excluding inadvertent interceptions." Sanders, 38
F.3d at 742-43 (internal citations omitted). Consistent with Sanders,
the district court instructed the jury that "an act is not intentional if
it is the product of inadvertence or mistake."

The County had the opportunity to argue at trial that it did not pos-
sess the requisite intent. The jury did not accept this argument.
Indeed, plaintiffs presented ample circumstantial evidence to con-
vince the jury that the County intentionally recorded plaintiffs' lines.
For instance, plaintiffs produced a confidential memorandum dated
June 8, 1995, from Perry Eichor, the county official who decided to
install the recording system, to the County Administrator. In this
memorandum, Eichor reported that the County might be"inadver-
tently `eavesdrop[ping]' on other members of the Law Enforcement
community." The memo further reported that all telephone lines in the
2000 series were being recorded. Since the judges' lines were part of
the 2000 series, a jury could reasonably conclude that the County
knew it was recording the judges well before Judge Abraham raised
the issue in 1998.

B.

Next, Greenville County contends that the district court erred in
declaring a mistrial and ordering additional discovery. During the first
trial, the district court determined that the County had not been forth-
coming in producing relevant documents. The County had responded
to plaintiffs' discovery requests with boilerplate objections asserting
that numerous privileges applied. Although plaintiffs requested the
County to list its specific objections and produce a privilege log, the
County failed to do either. The County also did not produce any addi-
tional documents. For their part, plaintiffs never filed a motion to
compel. The County contended that it had informed plaintiffs that it

                   9
possessed additional documents, which plaintiffs' counsel was free to
examine. Plaintiffs' counsel countered that the County led them to
believe that it had already produced all relevant documents. The dis-
trict court declared a mistrial and ordered Greenville County to
engage in additional depositions and other discovery. The court stated
that even if the County did not intentionally impede the discovery
process, the court would have granted a mistrial because of the lack
of adequate discovery.

The County contends that this was error and it therefore is entitled
to a new trial. We disagree. The County did not make a timely objec-
tion to the court's declaration of mistrial or its ordering of additional
discovery. Further, the district court acted within the bounds of its
discretion when it concluded that the County's responses were so
inadequate as to constitute no responses under Rule 37. See Fed. R.
Civ. P. 37(a)(3) ("[A]n evasive or incomplete disclosure, answer, or
response is to be treated as a failure to disclose, answer, or respond.").
Plaintiffs' request for documents was clear. The district court did not
exceed its discretion in making sure that the County complied with its
obligations under the discovery rules. Nor can we fault the district
court for seeking full disclosure of documents."Active participation
by a district judge in trial proceedings . . . is in itself neither improper
nor unfair." Desjardins v. Van Buren Community Hosp., 969 F.2d
1280, 1281 (1st Cir. 1992) (per curiam).

Indeed, the district court's belief that the County had not produced
all relevant documents was prescient. After the mistrial, the County
produced additional documents that were crucial to plaintiffs' case.
The most important document was the confidential 1995 memoran-
dum in which Eichor admitted that the County might be "inadver-
tently `eavesdrop[ping]'" on the 2000 series of extensions, which
included the judges' lines. Thus, we conclude that the district court
did not abuse its discretion in ordering a new trial.

C.

Finally, Greenville County contests the district court's ruling on
damages and attorneys' fees. For violations of Title III, plaintiffs may
recover the greater of either their actual damages or their statutory
damages. See 18 U.S.C. § 2520(c)(2). Section 2520(c)(2) provides for

                   10
statutory damages of either $100 a day for each day of violation or
$10,000, whichever is greater. Plaintiffs presented evidence that they
used their phones for approximately 4,601 days while the phones
were being wiretapped. Thus, there was a factual basis to award
$460,100 in statutory damages. The jury awarded $276,660 in dam-
ages.

Greenville County argues that the district court's jury instruction
on statutory damages erroneously mentioned deterrence, thereby per-
mitting the jury to award punitive damages to the plaintiffs. The dis-
trict court's instruction stated that:

        The purpose of statutory damages is to compensate the
        judges for intangible losses from invasion of privacy such
        as shock, humiliation, embarrassment, shame, mental
        anguish, emotional suffering, and depression. Statutory
        damages also serve to deter defendants such as Greenville
        County from engaging in such invasions of privacy.

A jury charge must be construed in light of the whole record. See
Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987). A judgment
will be reversed for error in jury instructions"only if the error is
determined to have been prejudicial, based on a review of the record
as a whole." Wellington v. Daniels, 717 F.2d 932, 938 (4th Cir. 1983).
The district court's instruction did not prejudice the County. First, the
court instructed the jury that it could award no damages if it found a
de minimis violation. Second, during its deliberations, the jury
inquired whether it could award less than the damages the district
court had mentioned in its instruction. The court informed the jury
that it could award a percentage of the damages. Finally, the jury
awarded plaintiffs significantly less than the statutory damages plain-
tiffs were seeking. The combination of these factors show that the dis-
trict court's instruction did not prejudice the County.

Finally, the County contends that the district court erred in award-
ing plaintiffs attorneys' fees and costs incurred after the court
declared a mistrial because the mistrial was unwarranted. As dis-
cussed above, the district court's decision to declare a mistrial was
within its discretion. Plaintiffs prevailed in the second trial. A prevail-
ing party is entitled to reasonable attorneys' fees under the Act. See

                   11
18 U.S.C. § 2520(b)(3). For this reason, the court properly awarded
the plaintiffs their attorneys' fees and costs.

IV.

The ordinary course of law enforcement's duties does not include
recording the conversations of state judicial officers. The district court
recognized this essential fact, and for the foregoing reasons, the judg-
ment is

AFFIRMED.

                  12
