A civil lawsuit by the target of now-disbarred former Brooklyn state prosecutor Tara Lenich’s illegal wiretapping against government officials will proceed under federal Electronic Communication Privacy Act and Section 1983 municipal liability claims, along with a number of state claims, U.S. District Judge Nicholas Garaufis of the Eastern District of New York ruled.
While Garaufis’ ruling is a clear win in the individual suit by former assistant DA Stephanie Rosenfeld, attorneys involved in both Rosenfeld’s action and a parallel class action brought by those illegally surveilled by Lenich see the ruling as having a broader impact.
“It’s a ringing endorsement for the Wiretap Act and the city’s liability under it, and it bodes extremely well for the larger case filed in tandem … for the entire class of people who were also wiretapped during that 18-month period by Lenich,” said Emery Celli Brinckerhoff & Abady name attorney Richard Emery, whose firm represents Rosenfeld personally and, alongside Wiggin and Dana, in the separate class action.
Both suits draw from the events that led to details splashed across the front pages of the city’s tabloids that called into question the actions of top officials in the Brooklyn DA’s office, and culminated in Lenich’s guilty plea to two federal felony counts of illegal interception of communications.
From her perch atop the Brooklyn DA’s violent criminal enterprise bureau, Lenich spent years wiretapping Rosenfeld and NYPD Det. Jarret Lemieux. According to reports, Lenich’s illegal breach of wiretap protocol was driven by her romantic interest in Lemieux, who was married, and whom she believed was having an affair with Rosenfeld.
To get around the protocols in place at the DA’s office, Lenich forged state judges’ signatures on wiretap orders to surveil a number of cellphones, and later did the same to get access text messages on the two cellphones.
Rosenfeld claims she was forced to leave the DA’s office in May 2017, citing the fallout of the scandal’s impact on her professional life, as well as the disruption and disturbance of her personal life caused by the media’s interest in her. She commenced her personal suit, Rosenfeld v. Lenich, 17-cv-0729, in December 2017.
The connected federal class action suit, Rosenfeld v. Lenich, 18-cv-06720, commenced in November 2018. The plaintiffs, on behalf of an estimated 700 class members, make three claims under the Wiretap Act—one set against Lenich in her personal capacity, another against her supervisors, and a third against the city. The class action notes that federal law provides statutory relief of “at least” $10,000 to individuals illegally wiretapped.
In his March 1 order in the individual suit, Garaufis found Rosenfeld reasonably pleaded a number of federal claims against the city. On her ECPA claims, the district court agreed that the doctrine of respondeat superior applied to the city.
Most notably, the city should have reasonably anticipated based on the pleadings, according to the order. Considering the steps taken to authorize the wiretaps that are specifically meant to safeguard against the abuse, as well as Lenich’s position of authority, Garaufis found that it remained possible the scheme could or should have been foreseeable by superiors in the Brooklyn DA’s office.
And while the district court agreed to dismiss the individual ECPA claims against DA Eric Gonzalez and a number of Lenich’s supervisors in the office, Rosenfeld’s state claims for negligent supervision, general negligence, and tortious interference were allowed to proceed against those individual defendants.
A Brooklyn DA’s office spokesman referred a request for comment to the New York City Law Department, whose spokesman did not offer an immediate response.