Judge Lifts Stay on Discovery in NSA Wiretapping Class Action

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On Friday, a California federal judge granted a plaintiff’s motion to lift a stay on discovery in a class action lawsuit accusing the U.S. government of violating federal wiretapping laws, meaning that the National Security Agency may soon have to produce documents related to its surveillance program.

“In order to manage this matter in a manner most conducive to the unique concerns and challenges this case presents, the Court had stayed discovery pending resolution of challenged issues of law,” U.S. District Judge Jeffrey S. White wrote in his order.

“However, having resolved the issue whether the Plaintiffs have sufficiently stated allegations to support claims for damages under the Wiretap Act and the Stored Communications Act, and having received explicit admonition from the Ninth Circuit Court of Appeals to advance this matter, the Court grants Plaintiffs’ motion to lift the stay of discovery with respect to [three of the counts],” the judge continued.

Judge White’s Feb. 19 order will lift a stay on discovery that has been in effect for more than five years over allegations that the NSA’s surveillance programs violated the Wiretap and Stored Communications Acts by collecting the phone records of AT&T customers.

The judge noted that the court had already addressed concerns about the sensitive material that would be reviewed and that there is a protective procedural mechanism in place to protect secret information.

The NSA surveillance class action lawsuit (Jewel v. National Security Agency) was filed in 2008 by the Electronic Frontier Foundation on behalf of AT&T customers whose phone records were allegedly unconstitutionally collected by the NSA. The EFF class action lawsuit alleged the NSA violated consumers’ First and Fourth Amendment rights by gathering information about their telephone calls.

The government has fought the litigation and argued that the wiretapping class action lawsuits should be dismissed because they would reveal national security secrets that would put the country at risk. In February 2015, Judge White agreed and granted partial summary judgment over the Fourth Amendment claims.

Last summer, AT&T customers asked the 9th U.S. Circuit Court of Appeals to hear their Fourth Amendment claims. However, the appellate court refused to hear their appeal in December, finding that it lacked jurisdiction over the appeal because the Fourth Amendment issues were intertwined with other legal issues that were currently being considered in the district court.

The plaintiffs are represented by James Samuel Tyre, Andrew Gellis Crocker, Cindy Ann Cohn, Kurt Bradford Opsahl, Lee Tien and Mark Thomas Rumold of the EFF; Rachael E. Meny, Michael S. Kwun and Benjamin W. Berkowitz of Keker & Van Nest LLP; Matthew Delmont Brinckerhoff and Ilaan Margalit Maazel of Emery Celli Brinckerhoff & Abady LLP; Thomas E. Moore III of Royse Law Firm PC; Richard R. Wiebe of the Law Office of Richard R. Wiebe; and Aram V. Antaramian of the Law Office of Aram Antaramian.

The NSA Wiretapping Class Action Lawsuit is Jewel, et al. v. National Security Agency, et al., Case No. 3:08-cv-04373, in the U.S. District Court for the Northern District of California.

UPDATE: On Sept. 7, 2018, the National Security Agency urged a California district court to dismiss a class action lawsuit alleging that the agency illegally spied on AT&T users, claiming that the users did not show enough evidence.