On April 28, 2017, upon completion of the review of the responsive records, the FBI advised Plaintiff the specific material requested on subject Judge Donald Nugent is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). The FBI also advised Plaintiff that portions of those same records are also exempt pursuant to underlying Exemptions (b)(3) [18 U.S.C. Section 2510-20], (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Finally, the FBI advised Plaintiff that “tape recordings [both oral and transcripts] of Judge Nugent talking with political leaders James Dimora and Frank Russo” are under seal pursuant to a court order issued by the United States District Court for the Northern District of Ohio, and sealed court records are not eligible for release under the FOIA.

Case5:10-md-02184-JW Document60 Filed12/17/10 Page21 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GOOGLE INC.’S MOTION TO DISMISS CASE NO. 5:10-MD-02184 JW (HRL) -16- radio transmissions, including those sent over unlicensed bands should be considered “readily accessible to the general public” unless one of five specific exceptions applied. 18 U.S.C. § 2511(2)(g)(i); 18 U.S.C. § 2510(16)(A)-(E). Congress easily could have prohibited the acquisition of radio broadcasts sent over unlicensed radio bands, but elected not to.

Any person means any person, including foreign citizens.” The statute is similarly broad in defining “electronic communication service” as “any service which provides . . . the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15).

As I mentioned to you yesterday, I appreciate all you are doing to obtain deposition dates. Sincerely, David G. Poston David G. Poston BROCK & STOUT P. O. Drawer 311167 Enterprise, AL 36331-1167 david@circlecitylaw.com 334-671-2044 This email is covered by the Electronic Communications privacy Act, 18 U.S.C. 2510 and is legally privileged. This information is confidential information and is intended only for the use of the individual or entity named above.

As I mentioned to you yesterday, I appreciate all you are doing to obtain deposition dates. Sincerely, David G. Poston David G. Poston BROCK & STOUT P. O. Drawer 311167 Enterprise, AL 36331-1167 david@circlecitylaw.com 334-671-2044 This email is covered by the Electronic Communications privacy Act, 18 U.S.C. 2510 and is legally privileged. This information is confidential information and is intended only for the use of the individual or entity named above.

As the court held there: “The Wiretap Act defines ‘intercept’ as ‘the aural or other acquisition of the contents of any wire . . . communication [the provision also includes electronic communications] through the use of any electronic, mechanical, or other device.’ 18 U.S.C. § 2510(4). Such acquisition occurs ‘when the contents of a wire communication are captured or redirected in any way.

In addition, a communication may be intercepted with the consent of one of the parties to the communication. 18 U.S.C. § 2510 (2)(d). As noted above, page 5, “Redirection presupposes interception.”

Plaintiffs have provided none. This does not satisfy the basic statutory requirements of § 2510, nor does it provide the factual basis to meet the minimum pleading requirements of Rule 8 as set forth in Twombly and Iqbal. 2. The Complaint Fails to Allege Facts that Recordings of Oral Conversations Were for the Purpose of Committing Any Criminal or Tortious Act.

That is, on Google’s view, Section 2510(16) would define when an electronic communication transmitted by radio is “readily accessible to the general public,” but would not define that phrase in the context of electronic communications transmitted by any other means recognized in the statute—whether “by a wire, . . . electromagnetic, photoelectronic or photooptical system.” 18 U.S.C. § 2510(12). Thus, under Google’s approach, the ordinary meaning of the words in the phrase “readily accessible to the general public,” rather than the special definition in Section 2510(16), would control only as to electronic communications not transmitted by radio.

Boddie v. American Broadcasting Companies, Inc., 731 F.2d 333, 338-39 and n. 5 (6th Cir.1984); Bianco v. American Broadcasting Companies, 470 F.Supp. 182, 185 (N.D.Ill.1979) (“... *1579 there may be some circumstances where a person does not have an expectation of total privacy, but still would be protected by the statute because he was not aware of the specific nature of another's invasion of his privacy.”) These courts distinguish between an expectation of privacy and the expectation of noninterception that is discussed in § 2510(2). We agree that there is a difference between a public employee having a reasonable expectation of privacy in personal conversations taking place in the workplace 8 and having a reasonable expectation that those conversations will not be intercepted by a device which allows them to be overheard inside an office in another area of the building.