John Disney/ALM

Before Marietta lawyers David Cohen and John Butters notified the chairman of the South’s most famous short-order restaurant chain that they had recordings of “predatory sexual conduct” involving his longtime housekeeper, they turned to private investigators for help.

But Thomas Hawkins, owner of Hawk Private Investigations Inc. and investigator Michael Deegan said in depositions obtained by the Daily Report that they balked when the lawyers asked for help in securing video evidence to document housekeeper Mye Brindle’s claims that her boss had sexually abused her.

“Tom asked, ‘How is this legal? This is going to be in somebody’s home,’” Deegan testified in a deposition last year. Cohen, he recalled, had a ready answer: “We have the case law to back this up. This is her workplace.”

“They were the attorneys, not us,” Deegan explained. “We weren’t going to be the ones doing the surveillance.”

According to the two investigators, the meeting with Cohen and Butters took place two days before Brindle formally retained the lawyers on June 6, 2012, and three weeks before she secretly recorded a videotape of a sexual encounter with her boss, Joe Rogers Jr., chairman and CEO of Waffle House. When she did, she was using a spy camera disguised as a cellphone and instructions on its use that Cohen had paid Hawk PI to provide, Deegan and Hawkins said.

Within weeks, Cohen delivered a demand letter to Rogers on Brindle’s behalf accusing him of “unwelcome sexual demands and other sexual harassment and abuse” that Cohen claimede were “well documented by numerous audio and video recordings.”

Subsequently, Cohen’s negotiating price to settle the matter quietly hovered around $12 million.

For five years—as the legality of Brindle’s video recording has dominated court hearings, judicial rulings, and appeals—Cohen and Butters have fought to keep secret Hawk PI’s role in the recording of the Rogers sex tape, citing attorney-client privilege and attorney work product privilege whenever they or Brindle have been questioned by the court or under oath, according to court rulings.

Rogers’ attorney, Robert Ingram, said it was more than three years before he learned of Hawk PI’s involvement and only after the investigators read news accounts of the litigation and retained representation from former Georgia Gov. Roy Barnes. Barnes then called Ingram and offered to let him depose Hawk PI staff. “They wanted to come forward and be truthful about their involvement,” Ingram said.

“It appears clear from the evidence that Cohen and Butters hired Hawk Private Investigations in an effort to shield the videotape and related materials from discovery,” Ingram contended. Hawk investigators, he said, revealed at their depositions last year that Brindle’s lawyers “did not want to be the ones purchasing the spy camera, so it appears they knew there was something wrong. … They were trying to distance themselves.”

But Cohen insists that Deegan and Hawkins have made “blatant misrepresentations” in their depositions. “They lied. No question,” he said when asked whether he and Butters had assured the investigators that videotaping someone engaging in a sex act without his or her consent or knowledge was legal.

He argued that, nevertheless, “that video is lawful.”

Cohen said he and Butters, who was a prosecutor handling complex racketeering cases for former Cobb County District Attorney Pat Head when they retained Hawk PI, relied on Hawk investigators to tell Brindle “what she could and couldn’t do” in making a recording that would not violate state law, although he acknowledged that neither Hawkins nor Deegan are lawyers.

“Their engagement was as experts to … equip, train and advise her,” Cohen explained. He said that he, too, relied on Hawk PI investigators as experts to “make an independent determination” about the propriety of any video that Brindle might record.

“Our overall purpose was simply to obtain evidence,” Cohen added. “I can’t say I wouldn’t have told them our belief in the law. But we were asking them as experts to tell us what we do in those cases. … She [Brindle] met with and got advice from experts about what she could and could not do. I am not going to go into what our advice to her was. I’m not going to waive attorney-client privilege.”

Butters didn’t respond to requests from the Daily Report to talk about the investigators’ depositions. But John Floyd, a partner at Atlanta’s Bondurant, Mixson & Elmore who is representing both Butters and Cohen, said there is “strong legal support for the position that the video recording is entirely legal.”

“Hawk PI’s current narrative that they advised that the video recording would be illegal is contradicted by their own actions and the internal notes they made at the time,” Floyd said. “With knowledge of what it would be used for, Hawk PI sold the recording device, instructed Ms. Brindle on use of the device and advised her on the one-party consent law.”

Darren Summerville, who now represents Brindle, agreed. “Everyone involved believed David and John continued to act correctly and [that] making the videotape was legal,” he said. “That’s our belief.”

John Salter, who with lead counsel and Barnes represents Hawk PI and its staff, said, “Our client told the truth in their testimony, and they stand by it.”

Lawful Surveillance?

Court records detail Brindle’s video recording as depicting Rogers nude in his bathroom, shaving and then lying on his bed as Brindle manually serviced him. Although the description is a matter of public record in the case, the footage itself has been sealed by judges in two counties. Yet it remains the centerpiece of competing civil suits filed by Rogers and Brindle and of a growing tangle of litigation stemming from its production.

Georgia law makes it a crime for any person through the use of any device, without consent of all persons observed, to photograph or record the activities of others that occur in any private place and out of public view. The only exceptions are for individuals in prison or in jail and property owners who have installed cameras for security purposes.

But Cohen and Butters have argued that Brindle was a victim of sexual battery and sexual harassment by her longtime employer and said she was gathering evidence of a crime against her. They also contend that, because Rogers’ home—including his bedroom and bathroom—were Brindle’s place of work, Rogers had no expectation of privacy, and the housekeeper’s decision to record their sexual encounter without his knowledge was not a crime. Butters even secured an affidavit from former DA Head, for whom he was working as an assistant DA when the videotape was made, in which Head said he would not have prosecuted Brindle for violating the state’s unlawful surveillance law.

Outside of court, Cohen has told news media outlets reporting on the growing legal brawl that neither he nor Butters encouraged or assisted Brindle in videotaping her sexual liaison with Rogers.

Two judges have issued civil rulings that the video, which has been sealed by the court since 2012, was made illegally. In a 2013 order, Cobb County Superior Court Robert Leonard said that, because the video constituted illegal surveillance, attorney-client privilege could be pierced. Rogers, he said, should be allowed to discover where and from whom the spy camera had been obtained and who else, besides Brindle, was involved in planning the recording. After reviewing the video in chambers, Leonard also concluded that the sexual encounter between Rogers and Brindle appeared to be consensual, he said in a court order.

In 2014, Rogers sued Butters and Cohen, accusing the lawyers of invasion of privacy and attempting to extort millions of dollars from him based on the tape. Rogers’ lawyers also successfully persuaded Leonard to disqualify Butters and Cohen from continuing to represent Brindle, based partly on Leonard’s finding that the lawyers’ assistance “was obtained in furtherance of the illegal activity and was closely related to it.” Last March, Leonard recused himself from presiding in the increasingly-contentious case.

Last year, a Fulton County grand jury indicted the two attorneys and Brindle on felony charges associated with the sex tape and Cohen’s original demand letter—but those charges were dismissed months later by Fulton County Superior Court Judge Henry Newkirk. In dismissing the indictment, Newkirk said it is not illegal in Georgia for a party to record both audio and video of another party, so long as one party consents to the recording. Rogers, he added, also had no expectation of privacy—even when covertly recorded—because Brindle was not a member of his family or household. The Supreme Court of Georgia now has under advisement an appeal of the indictment’s dismissal and a separate appeal of the lawyers’ disqualification from Brindle’s case.

Wary Investigators

Neither Hawkins nor Deegan recorded the video of a man they said Cohen had described only as “a very wealthy individual” but whom they later learned was Rogers. They also said in deposition testimony that they didn’t know where or precisely what kind of sexual abuse that Brindle, whom they were told was a “property manager,” intended to record.

At a meeting with Cohen and Butters on June 4, 2012, Hawkins said the lawyers told him and Deegan, “They had this client that was being sexually abused by her employer and that they wanted to get this abuse, as they called it, on video and audio. … And they wanted to know what kind of equipment we would use to document that activity.”

Hawkins said he was leery. “I’ve had attorneys before that asked us to do that, and we turned them down,” he testified. “But in this instance we were not being asked to do it. We were just asked to supply the equipment.”

“It wasn’t something we typically do,” he said in the deposition testimony. “I approved it to be done, which I obviously wish I hadn’t.”

The two investigators said they agreed only that Deegan would buy a spy camera disguised as a cellphone and show Brindle how to use it. Once Brindle recorded her evidence, one of Hawk PI’s staff members then would transfer the raw footage to a DVD.

Deegan said he asked the two attorneys why they hadn’t reported allegations to police that their client had been physically abused. He said the lawyers told them, “That it wouldn’t do any good. It would be a he said/she said, and we would need evidence of the abuse in order to prove this was happening.”

Two days after that first meeting, Cohen and Butters returned with Brindle and her mother to discuss with Deegan the mechanics of operating a covert video camera. Cohen wanted to pay the bill up front, and Hawkins charged him $1,648—$1,000 for a 10-hour job and the remainder for the camera, Deegan testified.

Five days later, according to the deposition transcript, Deegan met Brindle a second time to deliver the camera and show her how to use it. He also cautioned her to always keep the device in her presence because of state surveillance law requirements that at least one party to a conversation be present whenever an audio recording is made.

Deegan said he didn’t mention that the same law, with two exceptions, prohibited video recordings anywhere but in a public place. He said he didn’t because, “Her attorneys said that there was case law that this was not a place of privacy, wherever it was on the property this was happening; that this was her workplace. So as far as videotaping, I was not concerned with instructing her at all. … My role was to make it as easy as possible for her to use it: turn on, turn off, record.”

More than a week passed before Deegan got a call. Brindle had made a recording, and her lawyers needed it transferred from the camera to a DVD. A Hawk PI staff member handled the assignment and forwarded the DVD—and a second one that included “highlights”—to Cohen.

It wasn’t long before account of Brindle’s allegations began appearing in the news. Hawkins and Deegan said they soon realized the case was the one they had worked for Cohen. Hawkins said he first contacted Hawk PI’s attorney and, eventually, Barnes.

“I noticed in the media it was getting uglier and uglier,” Hawkins said. “I was afraid that our part in this matter would be misrepresented by someone. And I was obviously concerned that we would be brought into something or accused of something that we had nothing to do with.”

Midway through 2015, Hawkins said he asked Barnes to call Ingram. The private investigator wanted to apologize to Rogers. Barnes, he said, set up a meeting.

“It was a lot more pleasant than I thought it would have been,” Hawkins recalled. “I started off letting him know that I was very apologetic of us getting involved in this mess. I wish we’d had never touched it. We shouldn’t have.”

“This case was something that I initially turned down,” he said, according to the deposition transcript. “But unfortunately, I agreed to it. And I felt really bad about it, and I wanted to make sure he knew it.”