Unlawful access to stored communications.
Voluntary disclosure of customer communications or records.
Required disclosure of customer communications or records.
Counterintelligence access to telephone toll and transactional records.
Wrongful disclosure of video tape rental or sale records.
Civil actions against the United States.
Required preservation and disclosure of communications and records.
2018—Pub. L. 115–141, div. V, §103(a)(2), Mar. 23, 2018, 132 Stat. 1214, added item 2713.
2002—Pub. L. 107–273, div. B, title IV, §4005(b), Nov. 2, 2002, 116 Stat. 1812, made technical correction to directory language of Pub. L. 107–56, title II, §223(c)(2), Oct. 26, 2001, 115 Stat. 295, effective Oct. 26, 2001. See 2001 Amendment note below.
2001—Pub. L. 107–56, title II, §§223(c)(2), 224, Oct. 26, 2001, 115 Stat. 295, as amended by Pub. L. 107–273, div. B, title IV, §4005(b), Nov. 2, 2002, 116 Stat. 1812, temporarily added item 2712.
Pub. L. 107–56, title II, §§212(a)(2), (b)(2), 224, Oct. 26, 2001, 115 Stat. 285, 295, temporarily substituted "Voluntary disclosure of customer communications or records" for "Disclosure of contents" in item 2702 and "Required disclosure of customer communications or records" for "Requirements for governmental access" in item 2703.
1988—Pub. L. 100–690, title VII, §7067, Nov. 18, 1988, 102 Stat. 4405, which directed amendment of item 2710 by inserting "for chapter" after "Definitions" was executed by making the insertion in item 2711 to reflect the probable intent of Congress and the intervening redesignation of item 2710 as 2711 by Pub. L. 100–618, see below.
Pub. L. 100–618, §2(b), Nov. 5, 1988, 102 Stat. 3197, added item 2710 and redesignated former item 2710 as 2711.
2002—Subsec. (b)(1). Pub. L. 107–296, §2207(j)(2)(A), formerly §225(j)(2)(A), as renumbered by Pub. L. 115–278, §2(g)(2)(I), in introductory provisions, inserted ", or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State" after "commercial gain".
Subsec. (b)(1)(A). Pub. L. 107–296, §2207(j)(2)(B), formerly §225(j)(2)(B), as renumbered by Pub. L. 115–278, §2(g)(2)(I), substituted "5 years" for "one year".
Subsec. (b)(1)(B). Pub. L. 107–296, §2207(j)(2)(C), formerly §225(j)(2)(C), as renumbered by Pub. L. 115–278, §2(g)(2)(I), substituted "10 years" for "two years".
Subsec. (b)(2). Pub. L. 107–296, §2207(j)(2)(D), formerly §225(j)(2)(D), as renumbered by Pub. L. 115–278, §2(g)(2)(I), added par. (2) and struck out former par. (2) which read as follows: "a fine under this title or imprisonment for not more than six months, or both, in any other case."
1996—Subsec. (b)(1)(A), (2). Pub. L. 104–294 substituted "fine under this title" for "fine of under this title".
1994—Subsec. (b)(1)(A). Pub. L. 103–322, §330016(1)(U), substituted "under this title" for "not more than $250,000".
Subsec. (b)(2). Pub. L. 103–322, §330016(1)(K), substituted "under this title" for "not more than $5,000".
Pub. L. 99–508, title II, §202, Oct. 21, 1986, 100 Stat. 1868, provided that: "This title and the amendments made by this title [enacting this chapter] shall take effect ninety days after the date of the enactment of this Act [Oct. 21, 1986] and shall, in the case of conduct pursuant to a court order or extension, apply only with respect to court orders or extensions made after this title takes effect."
Pub. L. 100–618, §1, Nov. 5, 1988, 102 Stat. 3195, provided that: "This Act [enacting section 2710 of this title and renumbering former section 2710 as 2711 of this title] may be cited as the 'Video Privacy Protection Act of 1988'."
(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.
(9) to a foreign government pursuant to an order from a foreign government that is subject to an executive agreement that the Attorney General has determined and certified to Congress satisfies section 2523.
(7) to a foreign government pursuant to an order from a foreign government that is subject to an executive agreement that the Attorney General has determined and certified to Congress satisfies section 2523.
(3) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (c)(4).
2018—Subsec. (b)(9). Pub. L. 115–141, §104(2)(A)(i), added par. (9).
Subsec. (c)(7). Pub. L. 115–141, §104(2)(A)(ii), added par. (7).
2015—Subsec. (d)(3). Pub. L. 114–23 added par. (3).
2008—Subsecs. (b)(6), (c)(5). Pub. L. 110–401 substituted "section 2258A" for "section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032)".
2006—Subsec. (a). Pub. L. 109–177, §107(c), inserted "or (c)" after "Except as provided in subsection (b)".
Subsec. (b)(8). Pub. L. 109–177, §107(b)(1)(A), struck out "Federal, State, or local" before "governmental entity".
Subsec. (c)(4). Pub. L. 109–177, §107(b)(1)(B), added par. (4) and struck out former par. (4) which read as follows: "to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information;".
Subsec. (d). Pub. L. 109–177, §107(a), added subsec. (d).
2003—Subsec. (b)(5). Pub. L. 108–21, §508(b)(1)(C), which directed amendment of par. (5) by striking "or" at the end, could not be executed because "or" did not appear at the end. See 2002 Amendment note below.
Subsec. (b)(6). Pub. L. 108–21, §508(b)(1)(D), added par. (6). Former par. (6) redesignated (7).
Subsec. (b)(6)(B). Pub. L. 108–21, §508(b)(1)(A), struck out subpar. (B) which read as follows: "if required by section 227 of the Crime Control Act of 1990; or".
Subsec. (b)(7), (8). Pub. L. 108–21, §508(b)(1)(B), redesignated pars. (6) and (7) as (7) and (8), respectively.
Subsec. (c)(5), (6). Pub. L. 108–21, §508(b)(2), added par. (5) and redesignated former par. (5) as (6).
2002—Subsec. (b)(5). Pub. L. 107–296, §2207(d)(1)(A), formerly §225(d)(1)(A), as renumbered by Pub. L. 115–278, §2(g)(2)(I), struck out "or" at end.
Subsec. (b)(6)(A). Pub. L. 107–296, §2207(d)(1)(B), formerly §225(d)(1)(B), as renumbered by Pub. L. 115–278, §2(g)(2)(I), inserted "or" at end.
Subsec. (b)(6)(C). Pub. L. 107–296, §2207(d)(1)(C), formerly §225(d)(1)(C), as renumbered by Pub. L. 115–278, §2(g)(2)(I), struck out subpar. (C) which read as follows: "if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay."
Subsec. (b)(7). Pub. L. 107–296, §2207(d)(1)(D), formerly §225(d)(1)(D), as renumbered by Pub. L. 115–278, §2(g)(2)(I), added par. (7).
2001—Pub. L. 107–56, §212(a)(1)(A), substituted "Voluntary disclosure of customer communications or records" for "Disclosure of contents" in section catchline.
Subsec. (a)(3). Pub. L. 107–56, §212(a)(1)(B), added par. (3).
Subsec. (b). Pub. L. 107–56, §212(a)(1)(C), substituted "Exceptions for disclosure of communications" for "Exceptions" in heading and "A provider described in subsection (a)" for "A person or entity" in introductory provisions.
Subsec. (b)(6)(C). Pub. L. 107–56, §212(a)(1)(D), added subpar. (C).
Subsec. (c). Pub. L. 107–56, §212(a)(1)(E), added subsec. (c).
"(B) appear to pertain to the commission of a crime."
1988—Subsec. (b)(2). Pub. L. 100–690 substituted "2517" for "2516".
(a) Contents of Wire or Electronic Communications in Electronic Storage.—A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.
(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
(3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
(d) Requirements for Court Order.—A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
(e) No Cause of Action Against a Provider Disclosing Information Under This Chapter.—No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.
(1) In general.—A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.
(2) Period of retention.—Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.
(g) Presence of Officer Not Required.—Notwithstanding section 3105 of this title, the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service.
(B) the term "United States person" has the meaning given the term in section 2523.
(ii) that the required disclosure would create a material risk that the provider would violate the laws of a qualifying foreign government.
(H) if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the investigative interests of the foreign authority making the request for assistance.
(4) Disclosure obligations during pendency of challenge.—A service provider shall preserve, but not be obligated to produce, information sought during the pendency of a motion brought under this subsection, unless the court finds that immediate production is necessary to prevent an adverse result identified in section 2705(a)(2).
(5) Disclosure to qualifying foreign government.—(A) It shall not constitute a violation of a protective order issued under section 2705 for a provider of electronic communication service to the public or remote computing service to disclose to the entity within a qualifying foreign government, designated in an executive agreement under section 2523, the fact of the existence of legal process issued under this section seeking the contents of a wire or electronic communication of a customer or subscriber who is a national or resident of the qualifying foreign government.
(B) Nothing in this paragraph shall be construed to modify or otherwise affect any other authority to make a motion to modify or quash a protective order issued under section 2705.
2016—Subsecs. (a), (b)(1)(A), (c)(1)(A). Pub. L. 114–328 inserted "and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President" after "warrant procedures".
2009—Subsecs. (a), (b)(1)(A), (c)(1)(A). Pub. L. 111–79, which directed substitution of "(or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction" for "by a court with jurisdiction over the offense under investigation or an equivalent State warrant", was executed by making the substitution for "by a court with jurisdiction over the offense under investigation or equivalent State warrant" to reflect the probable intent of Congress.
2006—Subsec. (c)(1)(C). Pub. L. 109–162 struck out "or" at end.
2002—Subsec. (c)(1)(E). Pub. L. 107–273, §4005(a)(2), realigned margins.
Subsec. (e). Pub. L. 107–296 inserted ", statutory authorization" after "subpoena".
Subsec. (g). Pub. L. 107–273, §11010, added subsec. (g).
2001—Pub. L. 107–56, §212(b)(1)(A), substituted "Required disclosure of customer communications or records" for "Requirements for governmental access" in section catchline.
Subsec. (a). Pub. L. 107–56, §§209(2)(A), (B), 220(a)(1), substituted "Contents of Wire or Electronic" for "Contents of Electronic" in heading and "contents of a wire or electronic" for "contents of an electronic" in two places and "using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation" for "under the Federal Rules of Criminal Procedure" in text.
Subsec. (b). Pub. L. 107–56, §209(2)(A), substituted "Contents of Wire or Electronic" for "Contents of Electronic" in heading.
Subsec. (b)(1). Pub. L. 107–56, §§209(2)(C), 220(a)(1), substituted "any wire or electronic communication" for "any electronic communication" in introductory provisions and "using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation" for "under the Federal Rules of Criminal Procedure" in subpar. (A).
Subsec. (b)(2). Pub. L. 107–56, §209(2)(C), substituted "any wire or electronic communication" for "any electronic communication" in introductory provisions.
Subsec. (c)(1). Pub. L. 107–56, §§212(b)(1)(C), 220(a)(1), designated subpar. (A) and introductory provisions of subpar. (B) as par. (1), substituted "A governmental entity may require a provider of electronic communication service or remote computing service to" for "(A) Except as provided in subparagraph (B), a provider of electronic communication service or remote computing service may" and a closing parenthesis for provisions which began with "covered by subsection (a) or (b) of this section) to any person other than a governmental entity." in former subpar. (A) and ended with "(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity", redesignated clauses (i) to (iv) of former subpar. (B) as subpars. (A) to (D), respectively, substituted "using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation" for "under the Federal Rules of Criminal Procedure" in subpar. (A) and "; or" for period at end of subpar. (D), added subpar. (E), and redesignated former subpar. (C) as par. (2).
Subsec. (c)(2). Pub. L. 107–56, §210, amended par. (2), as redesignated by section 212 of Pub. L. 107–56, by substituting "entity the—" for "entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber" in introductory provisions, inserting subpars. (A) to (F), striking out "and the types of services the subscriber or customer utilized," before "when the governmental entity uses an administrative subpoena", inserting "of a subscriber" at beginning of concluding provisions and designating "to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1)." as remainder of concluding provisions.
Pub. L. 107–56, §212(b)(1)(C)(iii), (D), redesignated subpar. (C) of par. (1) as par. (2) and temporarily substituted "paragraph (1)" for "subparagraph (B)".
Pub. L. 107–56, §212(b)(1)(B), redesignated par. (2) as (3).
Subsec. (c)(3). Pub. L. 107–56, §212(b)(1)(B), redesignated par. (2) as (3).
Subsec. (d). Pub. L. 107–56, §220(b), struck out "described in section 3127(2)(A)" after "court of competent jurisdiction".
1996—Subsec. (c)(1)(C). Pub. L. 104–293 inserted "local and long distance" after "address,".
Subsec. (d). Pub. L. 104–294 substituted "in section 3127(2)(A)" for "in section 3126(2)(A)".
1994—Subsec. (c)(1)(B). Pub. L. 103–414, §207(a)(1)(A), redesignated cls. (ii) to (iv) as (i) to (iii), respectively, and struck out former cl. (i) which read as follows: "uses an administrative subpoena authorized by a Federal or State statute, or a Federal or State grand jury or trial subpoena;".
Subsec. (c)(1)(C). Pub. L. 103–414, §207(a)(1)(B), added subpar. (C).
Subsec. (d). Pub. L. 103–414, §207(a)(2), amended first sentence generally. Prior to amendment, first sentence read as follows: "A court order for disclosure under subsection (b) or (c) of this section may be issued by any court that is a court of competent jurisdiction set forth in section 3127(2)(A) of this title and shall issue only if the governmental entity shows that there is reason to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant to a legitimate law enforcement inquiry."
Pub. L. 103–322 substituted "section 3127(2)(A)" for "section 3126(2)(A)".
1988—Subsecs. (b)(1)(B)(i), (c)(1)(B)(i). Pub. L. 100–690, §7038, inserted "or trial" after "grand jury".
Subsec. (d). Pub. L. 100–690, §7039, inserted "may be issued by any court that is a court of competent jurisdiction set forth in section 3126(2)(A) of this title and" before "shall issue".
Pub. L. 115–141, div. V, §103(c), Mar. 23, 2018, 132 Stat. 1216, provided that: "Nothing in this section [enacting section 2713 of this title and amending this section], or an amendment made by this section, shall be construed to modify or otherwise affect the common law standards governing the availability or application of comity analysis to other types of compulsory process or to instances of compulsory process issued under section 2703 of title 18, United States Code, as amended by this section, and not covered under subsection (h)(2) of such section 2703."
(a) Backup Preservation.—(1) A governmental entity acting under section 2703(b)(2) may include in its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of such subpoena or court order, such service provider shall create such backup copy as soon as practicable consistent with its regular business practices and shall confirm to the governmental entity that such backup copy has been made. Such backup copy shall be created within two business days after receipt by the service provider of the subpoena or court order.
(2) Notice to the subscriber or customer shall be made by the governmental entity within three days after receipt of such confirmation, unless such notice is delayed pursuant to section 2705(a).
(B) the resolution of any proceedings (including appeals of any proceeding) concerning the government's subpoena or court order.
(B) has not initiated proceedings to challenge the request of the governmental entity.
(5) A governmental entity may seek to require the creation of a backup copy under subsection (a)(1) of this section if in its sole discretion such entity determines that there is reason to believe that notification under section 2703 of this title of the existence of the subpoena or court order may result in destruction of or tampering with evidence. This determination is not subject to challenge by the subscriber or customer or service provider.
(B) stating the applicant's reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this chapter in some other respect.
(2) Service shall be made under this section upon a governmental entity by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received pursuant to this chapter. For the purposes of this section, the term "delivery" has the meaning given that term in the Federal Rules of Civil Procedure.
(3) If the court finds that the customer has complied with paragraphs (1) and (2) of this subsection, the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity includes in its response the reasons which make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the parties' initial allegations and response, the court may conduct such additional proceedings as it deems appropriate. All such proceedings shall be completed and the motion or application decided as soon as practicable after the filing of the governmental entity's response.
(4) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order such process enforced. If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed.
(5) A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer.
(B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection.
(3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section 2703 of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b) of this section.
(6) As used in this subsection, the term "supervisory official" means the investigative agent in charge or assistant investigative agent in charge or an equivalent of an investigating agency's headquarters or regional office, or the chief prosecuting attorney or the first assistant prosecuting attorney or an equivalent of a prosecuting attorney's headquarters or regional office.
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(a) Payment.—Except as otherwise provided in subsection (c), a governmental entity obtaining the contents of communications, records, or other information under section 2702, 2703, or 2704 of this title shall pay to the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing such information. Such reimbursable costs shall include any costs due to necessary disruption of normal operations of any electronic communication service or remote computing service in which such information may be stored.
(b) Amount.—The amount of the fee provided by subsection (a) shall be as mutually agreed by the governmental entity and the person or entity providing the information, or, in the absence of agreement, shall be as determined by the court which issued the order for production of such information (or the court before which a criminal prosecution relating to such information would be brought, if no court order was issued for production of the information).
(c) Exception.—The requirement of subsection (a) of this section does not apply with respect to records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings obtained under section 2703 of this title. The court may, however, order a payment as described in subsection (a) if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider.
1988—Subsec. (c). Pub. L. 100–690 inserted heading.
(a) Cause of Action.—Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
(c) Damages.—The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.
(d) Administrative Discipline.—If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.
is a complete defense to any civil or criminal action brought under this chapter or any other law.
(f) Limitation.—A civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.
(g) Improper Disclosure.—Any willful disclosure of a "record", as that term is defined in section 552a(a) of title 5, United States Code, obtained by an investigative or law enforcement officer, or a governmental entity, pursuant to section 2703 of this title, or from a device installed pursuant to section 3123 or 3125 of this title, that is not a disclosure made in the proper performance of the official functions of the officer or governmental entity making the disclosure, is a violation of this chapter. This provision shall not apply to information previously lawfully disclosed (prior to the commencement of any civil or administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity or by the plaintiff in a civil action under this chapter.
2018—Subsec. (e)(3). Pub. L. 115–141 amended par. (3) generally. Prior to amendment, par. (3) read as follows: "a good faith determination that section 2511(3) of this title permitted the conduct complained of;".
2002—Subsec. (e)(1). Pub. L. 107–273 made technical correction to directory language of Pub. L. 107–56, §815. See 2001 Amendment note below.
2001—Subsec. (a). Pub. L. 107–56, §223(b)(1), inserted ", other than the United States," after "person or entity".
Subsec. (d). Pub. L. 107–56, §223(b)(2), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: "If a court determines that any agency or department of the United States has violated this chapter and the court finds that the circumstances surrounding the violation raise the question whether or not an officer or employee of the agency or department acted willfully or intentionally with respect to the violation, the agency or department concerned shall promptly initiate a proceeding to determine whether or not disciplinary action is warranted against the officer or employee."
Subsec. (e)(1). Pub. L. 107–56, §815, as amended by Pub. L. 107–273, inserted "(including a request of a governmental entity under section 2703(f) of this title)" after "or a statutory authorization".
Subsec. (g). Pub. L. 107–56, §223(b)(3), added subsec. (g).
1996—Subsec. (a). Pub. L. 104–293, §601(c)(1), substituted "other person" for "customer".
Subsec. (c). Pub. L. 104–293, §601(c)(2), inserted at end "If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court."
Subsecs. (d) to (f). Pub. L. 104–293, §601(c)(3), (4), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively.
Pub. L. 107–273, div. B, title IV, §4005(f)(2), Nov. 2, 2002, 116 Stat. 1813, provided that the amendment made by section 4005(f)(2) is effective Oct. 26, 2001.
The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.
(a) Duty to Provide.—A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(A) In general.—If a certification is issued under subparagraph (B) and notice of the right to judicial review under subsection (d) is provided, no wire or electronic communication service provider that receives a request under subsection (b), or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.
(iv) danger to the life or physical safety of any person.
(iii) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.
(B) Application.—A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (b) in the same manner as the person to whom the request is issued.
(C) Notice.—Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement.
(D) Identification of disclosure recipients.—At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under clause (i) or (iii) of subparagraph (A) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.
(1) In general.—A request under subsection (b) or a nondisclosure requirement imposed in connection with such request under subsection (c) shall be subject to judicial review under section 3511.
(2) Notice.—A request under subsection (b) shall include notice of the availability of judicial review described in paragraph (1).
(e) Dissemination by Bureau.—The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.
(f) Requirement That Certain Congressional Bodies Be Informed.—On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.
(g) Libraries.—A library (as that term is defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), the services of which include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally by patrons for their use, review, examination, or circulation, is not a wire or electronic communication service provider for purposes of this section, unless the library is providing the services defined in section 2510(15) ("electronic communication service") of this title.
2015—Subsec. (b). Pub. L. 114–23, §501(a), substituted "may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request" for "may" in introductory provisions.
Subsec. (c). Pub. L. 114–23, §502(a), added subsec. (c) and struck out former subsec. (c) which related to prohibition of certain disclosure.
Subsecs. (d) to (g). Pub. L. 114–23, §503(a), added subsec. (d) and redesignated former subsecs. (d) to (f) as (e) to (g), respectively.
2006—Subsec. (c). Pub. L. 109–177 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."
Subsec. (c)(4). Pub. L. 109–178, §4(b), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance."
Subsec. (f). Pub. L. 109–178, §5, added subsec. (f).
2001—Subsec. (b). Pub. L. 107–56, §505(a)(1), inserted "at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director" after "Deputy Assistant Director" in introductory provisions.
"(B) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and".
"(ii) a foreign power or an agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States."
1996—Subsec. (b)(1). Pub. L. 104–293 inserted "local and long distance" before "toll billing records".
"(2) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)."
Subsec. (e). Pub. L. 103–142, §2, inserted ", and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate," after "Senate".
(4) the term "video tape service provider" means any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials, or any person or other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect to the information contained in the disclosure.
(b) Video Tape Rental and Sale Records.—(1) A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).
(3) Court orders authorizing disclosure under subparagraph (C) shall issue only with prior notice to the consumer and only if the law enforcement agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforcement inquiry. In the case of a State government authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the video tape service provider, may quash or modify such order if the information or records requested are unreasonably voluminous in nature or if compliance with such order otherwise would cause an unreasonable burden on such provider.
(c) Civil Action.—(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.
(D) such other preliminary and equitable relief as the court determines to be appropriate.
(3) No action may be brought under this subsection unless such action is begun within 2 years from the date of the act complained of or the date of discovery.
(4) No liability shall result from lawful disclosure permitted by this section.
(d) Personally Identifiable Information.—Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State.
(e) Destruction of Old Records.—A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (b)(2) or (c)(2) or pursuant to a court order.
(f) Preemption.—The provisions of this section preempt only the provisions of State or local law that require disclosure prohibited by this section.
2013—Subsec. (b)(2)(B). Pub. L. 112–258 added subpar. (B) and struck out former subpar. (B) which read as follows: "to any person with the informed, written consent of the consumer given at the time the disclosure is sought;".
(4) the term "governmental entity" means a department or agency of the United States or any State or political subdivision thereof.
2016—Par. (3)(C). Pub. L. 114–328 added subpar. (C).
2009—Par. (3). Pub. L. 111–79 substituted "includes—" and subpars. (A) and (B) for "has the meaning assigned by section 3127, and includes any Federal court within that definition, without geographic limitation; and".
2006—Par. (4). Pub. L. 109–177 added par. (4).
2001—Par. (3). Pub. L. 107–56 added par. (3).
1988—Pub. L. 100–618 renumbered section 2710 of this title as this section.
(b) Procedures.—(1) Any action against the United States under this section may be commenced only after a claim is presented to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code.
(2) Any action against the United States under this section shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. The claim shall accrue on the date upon which the claimant first has a reasonable opportunity to discover the violation.
(3) Any action under this section shall be tried to the court without a jury.
(4) Notwithstanding any other provision of law, the procedures set forth in section 106(f), 305(g), or 405(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which materials governed by those sections may be reviewed.
(5) An amount equal to any award against the United States under this section shall be reimbursed by the department or agency concerned to the fund described in section 1304 of title 31, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, fund, or account that is available for the enforcement of any Federal law) that is available for the operating expenses of the department or agency concerned.
(c) Administrative Discipline.—If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.
(d) Exclusive Remedy.—Any action against the United States under this subsection shall be the exclusive remedy against the United States for any claims within the purview of this section.
(e) Stay of Proceedings.—(1) Upon the motion of the United States, the court shall stay any action commenced under this section if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or the prosecution of a related criminal case. Such a stay shall toll the limitations periods of paragraph (2) of subsection (b).
(2) In this subsection, the terms "related criminal case" and "related investigation" mean an actual prosecution or investigation in progress at the time at which the request for the stay or any subsequent motion to lift the stay is made. In determining whether an investigation or a criminal case is related to an action commenced under this section, the court shall consider the degree of similarity between the parties, witnesses, facts, and circumstances involved in the 2 proceedings, without requiring that any one or more factors be identical.
(3) In requesting a stay under paragraph (1), the Government may, in appropriate cases, submit evidence ex parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related criminal case. If the Government makes such an ex parte submission, the plaintiff shall be given an opportunity to make a submission to the court, not ex parte, and the court may, in its discretion, request further information from either party.
Sections 106, 305, and 405 of the Foreign Intelligence Surveillance Act of 1978, referred to in subsecs. (a) and (b)(4), are classified to sections 1806, 1825, and 1845, respectively, of Title 50, War and National Defense.
The Federal Tort Claims Act, referred to in subsec. (b)(1), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.
A provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider's possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.


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Technopoesis | Now with more coffee.
I’ve been terrible about updating this blog. Honestly, I sometimes forget it’s here. So, I’m sorry about that. I get distracted by so many other projects, including my new fitness challenge blog, Steamed Vegetables and Lunges, that I’m currently writing with my friend Patrick.
This entry was posted in Uncategorized on May 16, 2017 by V. E. Willis.
This entry was posted in Uncategorized on April 5, 2015 by V. E. Willis.
than the one we have right here.
the sky is always a more exotic orange.
that someone else has named.
as the tour guide’s explanation is lost in the iridescent sparkle.
This entry was posted in Uncategorized on March 5, 2015 by V. E. Willis.
This entry was posted in Uncategorized on March 2, 2015 by V. E. Willis.
So I have written a five haiku series. Each haiku can stand alone, or be read in sequence to make a longer poem.
And, since haikus are three lines that alternate five and seven syllables, I’m going to ask you to donate to Sanctuary Rescue (or your local dog rescue) in a multiple of $3, $5, or $7. You can donate HERE.
Can they tell that I’m pregnant?
This entry was posted in Uncategorized on February 10, 2015 by V. E. Willis.
This entry was posted in Uncategorized on February 6, 2015 by V. E. Willis.
and pistachio ice cream in the freezer.
because I never save my plums for later.
but I’m a ferocious and devoted reader.
but I must follow along my own equator.
I keep apples in my refrigerator.
Today’s words are a rondel, which is a French lyric form from the 14th century. Refrigerators, which I like to try to spell with a “d,” much to the chagrin of autocorrect, always remind me of William Carlos Williams. He makes me wish I liked plums more.
This entry was posted in Uncategorized on January 27, 2015 by V. E. Willis.

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Home » Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have To Disclose Before Trial?
Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have To Disclose Before Trial?
Federal court litigators are of course familiar with Fed.R.Civ.P. 26(a)(2)(B), which requires “a written report” from the witnesses we typically think of as “expert witnesses,” i.e., the witnesses “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” But what about other types of expert witnesses?
“Non-retained” expert witnesses are more common in federal court than many people realize: think of the doctors who treated an injured plaintiff, the government employees who investigated an accident, the engineers who worked on a defective product, or the competing inventors of a design in a patent infringement case. What do parties have to disclose before trial about those witnesses?
Back in 2010, Federal Rule of Civil Procedure 26(a)(2)(C) was amended to “require disclosure regarding expected expert testimony of those expert witnesses not required to provide expert reports and limit the expert report to facts or data (rather than ‘data or other information,’ as in the current rule) considered by the witness.” FRCP 26, Committee Notes (2010). Those “witnesses not required to provide expert reports” would be, of course, all of the non-retained expert witnesses.
What courts tend to do when a party has failed to provide either report for a non-retained witness.
In many ways, “the more things change, the more they stay the same.” The 2010 amendments left enough ambiguities that courts still often rely on pre-2010 precedent to figure out what to do.
Under Fed.R.Civ.P. 26(a)(2)(A), a party has to disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” That means every witness “who is qualified as an expert” under Fed.R.Evid. 702, regardless of whether the expert was hired by a party to testify as an expert.
Obviously, Rule 26(a)(2)(C)’s requirements for disclosure of “the subject matter” and “a summary of the facts and opinions to which the witness is expected to testify” is far less onerous and thorough than the detailed reports that paid experts have to provide under Rule 26(a)(2)(B). As a result, in general, lawyers would like to provide the Rule 26(a)(2)(C) if they can.
To summarize, before the 2010 amendments to Rule 26(a)(2), the majority of courts held that treating physicians providing opinions on causation, diagnosis, prognosis, and the extent of disability were not required to provide Rule 26(a)(2)(B) reports if their opinions were formed during the course of treating their patients. However, if a treating physician’s opinions were based on information provided by an attorney or others that were not reviewed during the course of treatment, a Rule 26(a)(2)(B) report was required “insofar as their additional opinions are concerned.” [Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011)].
The 2010 amendments to Rule 26(a)(2) now mandate that non-retained experts, like treating medical providers, who offer opinions based on their “knowledge, skill, experience, training or education” under Federal Evidence Rules 702, 703, or 705, make the disclosures required by Rule 26(a)(2)(C). Rule 26(a)(2)(C) requires disclosure of “(i) the subject matter on which the written witness is expected to present evidence under Federal Evidence Rule 702, 703 or 705; and (ii) a summary of facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(i), (ii).
The disclosure obligation stated in 26(a)(2)(C) “does not apply to facts unrelated to the expert opinions the witness will present.” Fed. R. Civ. P. 26 Advisory Comm. Notes (2010). A treating physician is still a percipient witness of the treatment rendered and may testify as a fact witness and also provide expert testimony under Federal Evidence Rules 702, 703, and 705. However, with respect to expert opinions offered, a Rule 26(a)(2)(C) disclosure is now required.
Alfaro v. D. Las Vegas, Inc., No. 215CV02190MMDPAL, 2016 WL 4473421, at *11 (D. Nev. Aug. 24, 2016)(paragraph breaks added).
We thus come to our first issue: when does a non-retained expert witness, like a treating physician, need to provide the thorough report under Rule 26(a)(2)(B) instead of the summary report under Rule 26(a)(2)(C)?
[I]f a physician’s opinion regarding causation or any other matter was formed and based on observations made during the course of treatment, then no Subsection B report is required, albeit the Subsection C report discussed above will be required. If, however, the physician’s opinion was based on facts gathered outside the course of treatment, or if the physician’s testimony will involve the use of hypotheticals, then a full subsection B report will be required.
That brings us to the next issue: when a Rule 26(a)(2)(C) report is required.
As the commentary to the 2010 amendment says, “The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present.” The problem is where the line is drawn between “facts unrelated to the expert opinions the witness will present” and “expert opinions.” What if, for example, a doctor treating a patient records their opinions about the cause of a patient’s injuries? What if a doctor thinks about what may have caused the patient’s injuries, but doesn’t write it in the medical records? It is, of course, a fact that the doctor reached those opinions, and yet that fact is, itself, an expert opinion. If that happens, and one of the parties wants to call the doctor as a witness, do they need to disclose those opinions under Rule 26(a)(2)(C)?
The issue before this court, therefore, is whether testimony as to causation by Dr. Kotecha, a treating physician, falls within Rule 26(a)(2)(C). The Eleventh Circuit has explained that “the testimony of treating physicians presents special evidentiary problems that require great care and circumspection by the trial court.” Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312 (11th Cir. 2011). In Williams, the court relied on decisions from other circuits which reasoned that a treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party, but when a “treating physician’s testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony.” Id. at 1317-18.
Another district court, in an opinion relied upon by the Plaintiff, similarly has reasoned that a physician who is not qualified as an expert may not provide explanations of scientific and technical information unless it is grounded in the physician’s own observations and technical experience. Eberhart v. Novartis Pharmaceuticals Corp., 867 F. Supp. 2d 1241 (N.D. Ga. 2011). The court further pointed out that when causation is not necessary to provide medical treatment and is based on a hypothesis, it is expert testimony. Id. at 1252.
Specifically with regard to causation testimony by treating physicians, courts addressing the issue after 2010 have concluded that where a plaintiff offers a treating physician’s testimony as to causation, the offering party is required to comply with Rule 26(a)(2)(C). See, e.g., Davis v. Green, No. 1:12cv3549-WSD, 2015 WL 3505665, at *3-4 (June 3, 2015); Kondragunta, 2013 WL 1189493, at *6.
The Plaintiff in this case has cited the court to cases to support his argument that testimony as to causation is within the purview of a treating physician and does not require disclosure under Rule 26(a). The cases cited by the Plaintiff, however, examine the scope of the reporting requirement in Rule 26(a)(2)(B), not Rule 26(a)(2)(C), or were decided under the previous version of the Rule. See Cobble v. Wal-Mart Stores E., No. 1:10cv10, 2010 WL 1088513, at *3 (N.D. Ind. March 19, 2010) and Odum v. Rayonier, Inc., No. Civ. A. CV204-190, 2007 WL 2002445, at *3 (S.D. Ga. July 5, 2007).
Which brings us to the final issue: what happens if a party fails to disclose a non-retained expert witness?
In considering the facts and circumstances, the harm caused by Plaintiffs’ failure to comply with Rule 26 has not been sufficiently mitigated and is not harmless. However, the Court finds that Plaintiffs’ disclosed treating physicians should be allowed to testify. Accordingly, Defendant’s motion to strike is GRANTED to the extent it seeks to limits Plaintiffs’ treating physicians’ testimony to the subject matter of their treatment as disclosed in the medical records and to opinions formed in the course of treatment. See Carrillo v. B & J Andrews Enterprises, LLC, 2013 WL 394207, at *7 (D.Nev. Jan.29, 2013) (permitting testimony regarding treatment despite failure to comply with Rule 26(a)(2)(C)).
Korhonen v. Sentinel Ins. Ltd., No. 2:13-CV-00565-RCJ, 2015 WL 2185365, at *5 (D. Nev. May 8, 2015).
When does a party have to provide a thorough Rule 26(a)(2)(B) report for a non-retained witness? When the witness’s opinion is based on facts gathered outside the work they were doing, or if the testimony will involve the use of hypotheticals.
When does a party have to provide a summary Rule 26(a)(2)(C) report for a non-retained witness? When the witness is testifying beyond their own observations and technical experience.
What do courts tend to do when a party has failed to provide either report for a non-retained witness? They tend to limit the witness to the facts they observed and the opinions contained in the records or formed during the work they were doing.
Before we conclude, two more observations.
First, plaintiffs who are using treating physicians can obviate most of these problems by deposing the treating physicians, or by asking the questions at their depositions. Even if that’s not the same thing as the formal Rule 26(a)(2)(C) statement, it will obviate any “surprise” or “prejudice” claimed by the defendant.

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A decade of silence is broken. After 10 years of silence while sitting on the bench, United States Supreme Court Justice Thomas ask a question during oral arguments. Justice Thomas, a vigorous defender of gun owner rights, questioned why a misdemeanor domestic assault violation should allow one’s guns rights to be taken away indefinitely in the complex case of Voisine v. United States, which involved domestic violence and gun ownership issues.
In Voisine v. United States, the Supreme Court examined whether a conviction of reckless domestic assault applied to 18 U.S.C § 922(g)(9) which prohibits firearm possession by individuals convicted of a felony. Voisine v. United States, 579 U.S. __ (2016).
Here, Stephen Voisine (”Voisine”) plead guilty to assaulting his girlfriend under the Maine Criminal Code, which was a misdemeanor charge. According to the § 207 of the Maine Criminal Code, it is a misdemeanor to “intentionally, knowingly, or recklessly cause bodily injury” to another. Several years later, Voisine found himself under a criminal investigation for alleging killing a bald eagle.
During said investigation, law enforcement learned that Voisine owned a rifle. After running a background check and discovering Voisine prior misdemeanor assault conviction, the government charged Voisine for violating 18 U.S.C § 922(g)(9) which is a federal law that prohibits, convicted felons from possessing firearms.
Voisine argues that he is not subject to 18 U.S.C §922(g)(9) prohibition of firearms because his prior conviction could have been based on reckless assault; therefore, the charge did not amount to “misdemeanor crime of domestic violence.” However, the Supreme Court did not agree with Voisine argument.
The Supreme Court held that reckless domestic assault qualifies as “misdemeanor crime of domestic violence” under 18 U.S.C §922(g)(9). Specifically, the Supreme Court noted that nothing in the text or comments of the statute indicated a contrast between domestic assault committed knowingly and domestic assault committed recklessly. One of the Supreme Courts main concerns was the petitioner’s narrow view of 18 U.S.C §922(g)(9). If the petitioner succeeded in his claim, 18 U.S.C §922(g)(9) would be inoperative in 35 jurisdictions with assault laws extending to recklessness.
The petitioner view advances that one must have knowing mens rea to be subject to 18 U.S.C §922(g)(9) and that a conviction of assault under a law that embodies recklessness would not qualify as “misdemeanor crime of domestic violence.” However, the Supreme Court stated that reckless conduct, a conscious disregard of a known risk, is not an accident and is a deliberate decision. The Supreme Court referenced the congressional intent in regards to the statute. Notably, the Supreme Court points to the fact that Congress wanted to bar those convicted of domestic abuse misdemeanors from owning guns, regardless if it on the basis of reckless assault or battery.
Being convicted under the federal statute 18 U.S.C § 922(g)(9) requires the convicted individual to forfeit his or her firearm indefinitely which some see as encroaching on an individual’s 2nd amendment right. However, the Supreme Court only agreed to accept this case on the basis of statutory interpretation and not the evaluation of the 2nd amendment. Whether you see this as a remarkable victory or as another law that advocates for over criminalization, this case will forever be notable as break of Justice Thomas’ silence on the bench.
If you are facing a federal gun charge or a domestic violence charge, contact federal criminal attorney Joseph A. Ingram at (205) 236-3997.


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Sole proprietor and consultant associated with a registered investment adviser was convicted in 1992 of thirteen felony counts (four counts of theft, three counts of sale of security by unregistered agent, three counts of sale of unregistered security, and three counts of fraud in connection with sale of a security) in Indiana state court. Held, it is in the public interest to bar respondent from associating with an investment adviser.
Ira W. Scott, pro se.
Peter K.M. Chan, for the Division of Enforcement.
Ira William Scott, the sole proprietor of and a "consultant" associated with "Ira W. Scott," a registered investment adviser during the relevant time period, appeals from the decision of an administrative law judge. The law judge determined to bar Scott from association with any investment adviser on the basis of Scott's conviction for four counts of theft, three counts of sale of a security by an unregistered agent, three counts of sale of an unregistered security, and three counts of fraud in connection with the sale of a security, each a felony offense under Indiana state law, and in consideration of the public interest. We base our findings on an independent review of the record except for those findings not challenged on appeal.
The factual background of Scott's criminal conviction, as set forth in the charging document, the opinion of the Indiana Court of Appeals, and Scott's testimony before the law judge, follows. On April 28, 1987, Scott opened an account with a long-distance telephone carrier for Global Finance Corporation ("Global"), a company in which he was the sole shareholder. The carrier activated the account on May 1, 1987 and issued eleven cards with access codes to Scott.
From May 1987 to November 1987, Scott sold unregistered securities of Value Plus + Communications, Inc. ("Value Plus") to the public. Scott, who formed and managed Value Plus, claimed to investors that Value Plus was in the business of purchasing long-distance time from telephone companies for resale to others. In fact, Value Plus had no on-going business. Scott was not a registered broker, dealer, agent or investment adviser with the State of Indiana.
On May 13, 1987, Scott told Thomas Sutherland that Sutherland would receive stock dividends equal to 30% to 35% of his investment if he purchased Value Plus stock. Scott also promised Sutherland free long-distance telephone service and provided him with an access code that had been issued to Global for making long-distance telephone calls. Sutherland entered into a stock subscription agreement with Scott and invested $5,000 in Value Plus for 500 shares of stock.
Scott also contacted Sutherland's daughter, Deborah Cristea, on May 13, 1987, and touted Value Plus stock. As with Sutherland, Scott told Cristea that she would receive free long-distance service and provided her with one of Global's access codes for use in making long-distance telephone calls. Cristea also entered into a stock subscription agreement with Scott and invested $1,500 for 150 shares of Value Plus stock.
On November 3, 1987, Scott told Charles and Lorraine Hroma that they would receive interest payments equal to 15 1/2% of their investment if they invested in Value Plus. The Hromas entered into a convertible debenture agreement with Scott and invested $1,000 in Value Plus. In addition to these representations, Scott told the Value Plus investors he would refund their money at any time, and that they would not suffer any losses from their investments. These representations were false.
By December 17, 1987, Global had accumulated an unpaid balance of over $42,000 with the long-distance telephone carrier. An investigation conducted by the carrier revealed that Scottpossessed 117 stolen access codes and that several Value Plus investors possessed access codes issued to Scott through Global. No payments were ever made on Global's account with the carrier despite repeated requests for payment.
On September 27, 1996, we commenced this proceeding against Scott pursuant to the Advisers Act. After a hearing, the law judge determined that Scott's activities fell within the statutory definition of an investment adviser, that Scott was associated with a registered investment adviser during the relevant period, and that the public interest justified barring Scott from future association with any investment adviser.
to take into consideration the extent and occurrences of prosecutorial misconduct, false testimony, suppression of favorable evidence, newly discovered evidence, improper instructions to jury (sic) sufficiency of evidence, trial counsel's failure to call witnesses, conflicting evidence, conflicting testimony, denial of due process and criminal acts on behalf of (the long-distance telephone carrier) during the investigation of this matter.
However, "(a) criminal conviction cannot be collaterally attacked in an administrative proceeding. This prohibition extends to issues relating to the validity of the conviction, including the credibility of the evidence presented at trial and any defenses to the criminal charge." 9 Thus, Scott is barred from attacking the merits of his conviction in this forum.
B. Scott disputes the law judge's finding that his activities came within the statutory definition of an investment adviser. Scott contends that he never received compensation as an investment adviser and that he did not conduct a business of advising the public on the value of, or the advisability of investing in, purchasing, or selling, securities. Scott further argues that he "never profited from investment advisory work" but concedes that he was "registered as an investment advisor at the time (he) was charged with the crimes involved."
Moreover, Scott's claim that he does not meet the functional definition of an investment adviser is without merit. To the extent relevant here, the Advisers Act defines "investment adviser" as "any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities . . . ." 11 The compensation element of the definition is satisfied by the diversion of investor funds for personal use. 12 Since Scott formed and managed Value Plus, and he was convicted of exercising unauthorized control of funds belonging to Value Plus investors with the intent to deprive them of those funds, he received compensation for providing investment advice within the meaning of the Advisers Act. 13 The circumstances of Scott's conviction indicate that he did, in fact, advise members of the public (i.e., Thomas Sutherland, Deborah Cristea, and the Hromas) as to the value and advisability of investing in and purchasing Value Plus securities.
Scott also argued before the law judge, in what appears to be another challenge to our jurisdiction, that his conviction involved the sale of securities to investors in his capacity "asan officer in a corporation and not as a registered investment advisor." Sections 203(e) and (f), however, do not limit our ability to impose sanctions to only those persons who commit the specified felonies in their capacity as an investment adviser. The crimes enumerated in the statute include convictions on securities-related and larceny-type felonies. Even if we were to accept Scott's assertion, which we do not, that he acted solely in his capacity as a corporate officer when he committed the crimes that were the subject of his conviction, we may, pursuant to Sections 203(e) and (f), impose any sanctions justified in the public interest.
The law judge concluded that it was in the public interest to impose a bar on Scott. The law judge noted that, although Scott had deliberately engaged in a course of fraudulent conduct "so serious and outrageous as to be criminal," Scott had not shown any remorse or appreciation that he had acted illegally or damaged investors. The law judge also observed that Scott had asserted that he had not been involved with individual investors. However, his felony conviction involved transactions with four natural persons. Based on evidence in the record and her observation of Scott's demeanor, the law judge concluded that "it is almost certain that Mr. Scott will commit future violations of the securities laws if he is allowed to participate in the securities industry in the future."
In considering whether an administrative sanction serves the public interest, we evaluate the egregiousness of a respondent's actions, the isolated or recurrent nature of the violation, the degree of scienter, the sincerity of a respondent's assurances against future violations, the respondent's recognition that the conduct was wrongful, and the likelihood of recurring violations. 14 We believe that it is in the public interest to bar Scott from association with any investment adviser.
Scott fraudulently induced four investors to purchase Value Plus securities. In addition, he accumulated an unpaid debt to a long-distance telephone carrier of more than $42,000. Scott engaged in this conduct for over half a year. He was stopped only by the intervention of state law enforcement authorities. At the hearing before the law judge, Scott characterized the State's intervention as an unjustified act that "jeopardized" his good name and character, and that forced Value Plus to go out of business. Scott's continued attacks on the validity of his conviction and insistence that the charges brought against him had no basis further demonstrate his inability to understand his obligations under the securities laws.
Scott stated his intent to re-enter the securities industry to the law judge, but offered no assurance that he would not commit future violations of the securities laws. While Scott claimed that he would limit his interactions to "accredited investors," such investors are also vulnerable to fraud.
Under these circumstances, an inference that Scott would commit future violations of the securities laws, if given the opportunity to do so, is warranted. For the foregoing reasons, we determine to bar Scott from association with any investment adviser in order to protect public investors.
By the Commission (Chairman LEVITT and Commissioners JOHNSON, HUNT, and CAREY); Commissioner UNGER not participating.
ORDERED that Ira William Scott be, and hereby is, barred from association with any investment adviser.
-- Section 220(a)(17) of the Advisers Act defines, in relevant part, "person associated with an investment adviser" as any person "directly or indirectly controlling or controlled by such investment adviser, including any employee of such investment adviser . . . ." 15 U.S.C. � 80b-2(a)(17) (1997). In the Form ADV filed with the Commission, Scott stated that he would exercise all of the authority and hold all of the beneficial interest in the investment adviser. We conclude that Scott was associated with the registered investment adviser.
-- Scott withdrew his registration as an investment adviser by filing a Form ADV-W with the Commission on June 12, 1988. The withdrawal became effective on August 12, 1988. See 17 C.F.R. � 275.203-2(b) (1997).
-- State of Indiana v. Ira W. Scott , No. 64D01-8805-CF-76 (Porter Superior Court May 27, 1988 and June 8, 1988) (information charging Scott with thirteen felony offenses).
-- State of Indiana v. Ira W. Scott , No. 64D01-8805-CF-76 (Porter Superior Court Dec. 1, 1992) (sentencing order entering judgment of conviction).
-- Ira Scott v. State of Indiana , NO. 64A03-9303-CR-00098 (Ind. Ct. App. Sept. 29, 1994) (affirming Scott's conviction on all thirteen felony counts). Scott's petition seeking further review of his conviction by the Indiana Supreme Court was denied.
-- 15 U.S.C. � 80b-3(e) and (f) (1997).
-- A person associated with an investment adviser may be sanctioned if convicted of a qualifying crime under the Advisers Act if the conviction (as specified in � 80b-3(e)) has occurred within ten years of the commencement of proceedings to impose such sanctions. 15 U.S.C. � 80b-3(f) (1997).
-- Scott now seeks postponement of a "final decision" from the Commission on his application for review pending resolution of a petition for post-conviction relief that he filed in Indiana Superior Court. We see no reason to await the outcome of Scott's request for post-conviction relief. The Advisers Act permits us to impose sanctions on the basis of a qualifying conviction. We need not await the outcome of any post-conviction proceeding in order to proceed. See Charles Phillip Elliott , 50 S.E.C. 1273, 1276-1277 (1992), aff'd. 36 F.3d 85 (11th Cir. 1994) (sanctions imposed despite pending appeal of underlying criminal conviction).
-- William F. Lincoln , Securities Exchange Act Rel. No. 39629 (February 9, 1998), 66 SEC Docket 1433, 1436-1437; see also , Elliott v. SEC , 36 F.3d 86, 87 (11th Cir. 1994); John Francis D'Acquisto , Investment Advisers Act Rel. No. 1697 (January 21, 1998), 66 SEC Docket 1094, 1098-1099; Benjamin G. Sprecher , Securities Exchange Act Rel. No. 38485 (April 8, 1997), 64 SEC Docket 720, 729.
-- Scott also testified before the law judge that he "was not dealing with the public and actually was dealing with accredited investors and major corporations," apparently arguing that he did not provide investment advice to natural persons. A person is not excluded from the definition of investment adviser merely because he or she limits advice to natural persons. We note further that the term "accredited investor" includes certain natural persons. 17 C.F.R. 230.215(e) and (f) (1997). Moreover, Scott entered an exhibit into evidence at the hearing purporting to be a client list of investors that contained the names of natural persons, and Scott's criminal conviction indicates that he provided investment advice to at least four natural persons.
-- 15 U.S.C. � 80b-2(a)(11) (1997).
-- Alexander V. Stein , Investment Advisers Act Rel. No. 1497 (June 8, 1995), 59 SEC Docket 1493, 1498.
-- Scott also seeks a "copy of the findings of the investigators for the Securities and Exchange Commission's Midwest Division" in order to prove that he never was compensated as an investment adviser. That report (which was produced to Scott by the Division but not admitted into evidence below) states that Scott's advisory business was inactive. However, the circumstances leading to Scott's conviction indicate that he acted and received "compensation" as an investment advisor within the meaning of the Advisers Act. We deny Scott's request. Whether or not Scott otherwise had an investment adviser business that generated compensation is not relevant to our determination here.
-- Steadman v. SEC, 603 F.2d 1126, 1140 (5th Cir. 1979), aff'd , 450 U.S. 91 (1981).

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