D.N.J.: SEC didn’t violate Model Rule 4.4(a) when it obtained SW production from USAO

“For instance, the SEC did not ‘violate [Avalon’s] legal rights’ when it ‘obtain[ed] evidence’ from the [USAO of the] DNJ that the DNJ had in turn obtained through a court-issued search warrant. Rule 4.4(a). As described above, when it accepted the DNJ’s offer of documents obtained from a search of Avalon’s email account, the SEC took the precaution of preparing a list of Filter Terms and expected to receive only those documents seized from the business’s email account that survived the filter.” SEC v. Lek, 2018 U.S. Dist. LEXIS 6704 (D. N.J. Jan. 16, 2018) (The opinion offers no clue what argument was made that anybody’s legal rights were violated. If there was no Fourth Amendment or Rule 6 or 41 violation, then, by necessity, there’s no 4.4 violation. It’s a clear chicken and egg argument.]

The Sixth Amended Complaint doesn’t specify whether plaintiff’s jail calls are preceded by a warning they are recorded or that he was otherwise warned. Nevertheless, it is nearly universally held there is no reasonable expectation of privacy in a jail call, even an otherwise privileged one to his wife, which this was. Witchard v. Morales, 2018 U.S. Dist. LEXIS 6568 (M.D. Fla. Jan 16, 2018).*