Tyger v. Precision Drilling Corp. et al

Filing 274

MEMORANDUM (Order to follow as separate docket entry) re: 229 MOTION to Strike Expert Report and Testimony of Dr. Radwin filed by SHAUN WADSWORTH, RODNEY TYGER, Rodney Tyger. Signed by Honorable Matthew W. Brann on 4/11/2018. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 4:11-CV-01913

RODNEY TYGER and SHAWN
WADSWORTH, on behalf of
themselves and those similarly situated,

(Judge Brann)

Plaintiffs.
v.
PRECISION DRILLING CORP., et al.,
Defendant.
MEMORANDUM OPINION
APRIL 11, 2018
Before the Court is Plaintiffs Rodney Tyger and Shaun Wadsworth’s Motion
to Strike the Expert Report of Dr. Radwin. For the reasons that follow, this Motion
is denied.
I.

BACKGROUND
This case has long history before the Court. Named Plaintiffs Rodney

Tyger and Shaun Wadsworth (“Plaintiffs”), on behalf of themselves and those
similarly situated, initiated this Fair Labor Standards Act (“FLSA”) collective
action on October 17, 2011.1 Plaintiffs filed an amended complaint on January 4,
2012,2 and Defendants Precision Drilling Corp., Precision Drilling Oilfield

1

ECF No. 1.

2

ECF No. 8.

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Services, Inc., and Precision Drilling Company, LP (“Defendants”) answered on
February 7, 2012.3 Defendants thereafter moved for summary judgment on all
claims on February 29, 2012,4 and Plaintiffs moved to conditionally certify a
collective action on February 24, 2012.5 The Honorable Christopher C. Conner of
this Court, to whom the matter was originally assigned, denied Defendants’ motion
for summary judgment on December 18, 2012 “without prejudice to defendant’s
right to refile such a motion at the close of discovery.”6 On January 7, 2013, Chief
Judge Conner conditionally certified a class of “all Precision hourly rig employees
who worked for Precision in the United States within the last three years” based on
the three FLSA claims identified in the Amended Complaint.7 Approximately
1,000 hourly, non-managerial employees have since joined this suit.8
On January 17, 2013, this matter was reassigned to me. Following an
extensive discovery period, including expert discovery, the parties both moved for
summary judgment.9 Those Motions are addressed in a separate memorandum
Opinion of this same date. Plaintiffs have also moved to strike the expert report of

3

ECF No. 18.

4

ECF No. 28.

5

ECF No. 23.

6

ECF No. 48.

7

ECF No. 49.

8

See ECF No. 249 at ¶ 2; ECF No. 263 at ¶ 2.

9

ECF Nos. 239 & 242.

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Dr. Robert Radwin as based on recordings which were made in violation of 18
U.S.C. § 2511.10 Dr. Radwin had been retained by Defendants to conduct a time
study of workers’ pre-shift and post-shift activities at drilling rigs in Pennsylvania,
Texas, and North Dakota. Plaintiffs contend that, because the video cameras also
recorded audio in the rig change houses without the employees’ consent, Dr.
Radwin’s report should be stricken and he should be precluded from testifying.11
Defendants respond, inter alia, that this motion should be denied because (1)
Plaintiffs have failed to show intentional interception, and (2) Plaintiffs have failed
to show the interception of an oral communication as defined in the Electronic
Communications Privacy Act.12 The parties have since fully briefed this issue and
it is now ripe for disposition.13
II.

ANALYSIS
The Electronic Communications Privacy Act (“ECPA”), or 18 U.S.C. §

2510 et seq., prohibits the interception of oral communications.14 Any oral
communication that is intercepted in violation of this act cannot be used as
evidence in court.15 Here, Plaintiffs argue that the expert report of Dr. Radwin

10

ECF No. 229.

11

See ECF Nos. 230 & 252.

12

See ECF Nos. 231 & 253.

13

ECF Nos. 230, 231, 252 & 253.

14

See 18 U.S.C. § 2511.

15

See 18 U.S.C. § 2515.

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must be stricken and that Dr. Radwin must be precluded, in toto, from testifying
due to a violation of this act. Plaintiffs specifically argue that Dr. Radwin, by
setting up video cameras in rig change houses as part of his time study, made
recordings which intercepted the oral communications of rig workers without their
consent. Having reviewed the submissions of the parties, I find that the ECPA has
not been violated. Dr. Radwin’s expert report will therefore not be stricken.
First, Plaintiffs have not demonstrated that the audio recording made by Dr.
Radwin was done intentionally. The ECPA prohibits only intentional interception
of “oral communications.”16 “Intentional,” as used in the act, is narrower than its
dictionary definition.17 To that end, this term “means more than [] one voluntarily
engaged in conduct or caused a result.”18 Rather, “[s]uch conduct or the causing of
the result must have been the person’s conscious objective.”19 In other words,
“[a]n act is not intentional if it is the product of inadvertence or mistake.”20
Dr. Radwin’s deposition testimony fails to establish this necessary showing
of intent. Indeed, Dr. Radwin’s deposition, read as a whole, clearly demonstrates

16

18 U.S.C. § 2511(1)(a)(“Except as otherwise specifically provided by this chapter any person
who—(a) intentionally intercepts, endeavors to intercept, or procures any other person to
intercept or endeavor to intercept, any wire, oral, or electronic communication; . . . shall be
punished as provided in subsection (4) or shall be subject to suit as provided in subsection
(5)”). (emphasis added).

17

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

18

Id. (quoting S.Rep. No. 99–541, at 23 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3577).

19

Id.

20

Id.

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that any recording of audio was the product of inadvertence. In that deposition, Dr.
Radwin specifically stated the following:
Q.

Well, let’s not blame Precision for a second. You didn’t tell the
rig managers you were making audio recordings, did you?

A.

I wasn’t even aware I was making audio recordings. The
camera recorded audio and that was captured but that wasn’t
essential to my study. I don’t use the audio. I didn’t listen
to the audio.

Q.

It may not have been essential to your study, but you knew the
audio would be recorded, didn’t you?

A.

No.

Q.

You’ve done this in other cases, correct?

A.

I don’t use the audio. When I play the video, I don’t listen to
the audio.

Q.

But you knew that -- you know that audio is recorded, don’t
you? Do you want me to show you the video?

A.

No. I know that audio is recorded because you told me.21

...
Q.

Okay. Well, you said – okay. And – but to be clear, even if you
may—so you would have told that to the rig manager?

A.

I didn’t have any specific intent to make audio recordings nor
did I need audio recordings. The fact that they were captured
and they were done in the change house was not expected, and I
didn’t use the recordings and I didn’t listen to them.22

21

Dep. of Robert Radwin (ECF No. 231-2) at 150:3-20.

22

Id. at 151:8-15.

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This testimony indicates that the audio recording at issue was the result of
inadvertence and not an intentional or conscious objective to record. Rather, as
shown above, Dr. Radwin was actually unaware that his camcorder had captured
audio until alerted by Plaintiffs’ counsel. Indeed, he further states in his deposition
that the recording of audio resulted from a normal functioning of the camera, and
that he was unaware of how he could have turned it off.23 Based on this evidence,
the narrow definition of “intentional” to prove an ECPA violation has not been
satisfied, and Plaintiffs’ Motion may be denied on that ground alone. Plaintiffs’
arguments to the contrary and piecemeal citation of Dr. Radwin’s deposition are
unpersuasive.24
Plaintiffs’ Motion is also properly denied based on a second, alternative
ground. Specifically, based on the evidence adduced, Plaintiffs have failed to
show the interception of an “oral communication.” “Oral Communication” is
defined at 18 U.S.C. § 2510 as “any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to interception
under circumstances justifying such expectation . . . ” This definition was drafted

23

Id. at 59:6-15.

24

Plaintiffs engage in a lengthy discussion of “intent” versus “motive” to argue, in essence, that
Defendants are conflating Dr. Radwin’s motive to not violate the law with the necessary
showing of intent under the ECPA. See Pls.’ Reply Br. (ECF No. 252) at 8-13. Plaintiffs
misapprehend Defendants’ argument, and, because the full deposition testimony of Dr.
Radwin demonstrates that the instant audio recording was the product of inadvertence and
not his conscious objective, this argument is unavailing.

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“to reflect the Supreme Court’s standards for determining when a reasonable
expectation of privacy exists.”25 Thus, under that standard, Plaintiffs need to prove
that they had both a subjective expectation of privacy and an objectively
reasonable one.26
Here, even assuming that the Plaintiffs held a subjective expectation of
privacy,27 I nevertheless find that this expectation was not an objectively
reasonable one. First, the cameras were mounted in plain sight in the rig house. 28
Indeed, my review of the videos informs me of the likely prominent position of the
camera within the unquestionably close quarters of the change house. Second, the
declarations of rig managers demonstrate both that (1) the rig hands were informed
beforehand that a camera would be placed in the change house,29 and (2) a member
of management (including the rig manager, oil company representatives, and other
third parties) could have walked into the change house at any time.30 Therefore,
while I acknowledge Plaintiffs’ argument that the frank nature of the conversations
concerning their employment and the time study at issue may indicate a subjective

25

Gross v. Taylor, No. 96-6514, 1997 WL 535872, at *4 (E.D.Pa. Aug. 5, 1997)(citing United
States v. McKinnon, 985 F.2d 525, 527 (11th Cir. 1993)).

26

Id.

27

See Pls.’ Reply Br. (ECF No. 252) at 5-8.

28

See Dean Decl. (ECF No. 231-3) ¶¶ 3-4; Quigley Decl. (ECF No. 231-4) ¶¶ 3-4; Strong Decl.
(ECF No. 231-5) ¶ 4.

29

Id.

30

See Dean Decl. (ECF No. 231-3) ¶ 5; Quigley Decl. (ECF No. 231-4) ¶ 5; Strong Decl. (ECF
No. 231-5) ¶ 6.

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expectation of privacy,31 any such privacy expectation was not objectively
reasonable.32
III.

CONCLUSION

Based on the above reasoning, which demonstrates a lack of intentional
conduct by Dr. Radwin and the absence of an objective expectation of privacy in
the Plaintiffs’ conversations, the instant Motion to Strike the Expert Report of Dr.
Radwin is denied.
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

31

See Reply Br. (ECF No. 252) at 6-7.

32

See, e.g., Wesley v. WISN Division-Hearst Corp., 806 F.Supp. 812, 815 (E.D.Wis.
1992)(finding no objectively reasonable expectation of privacy based in part on the close
proximity of a microphone which audio recording “a distinct possibility”); Perraglio v. New
Mexico, No. 08-cv-0351, 2009 WL 2392027, at *7 (D.N.M. July 8, 2008)(finding no
objectively reasonable expectation of privacy concerning a conversation where, while
seemingly private, “the public or other staff members could enter the area at any time”);
Gross, 1997 WL 535872 at *8 (finding that the audio/video recording system’s position of
prominence undermined a reasonable expectation of privacy).

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