James Brian Kleiser v. Benjamin Chavez;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BRIAN KLEISER; ADVANCED
ELECTRICAL CONCEPTS, INC., DBA Mr.
Electric of Clark County,
Plaintiffs-Appellants,
v.
BENJAMIN CHAVEZ; et al.,
Defendants-Appellees.
No. 21-36029
D.C. No. 3:20-cv-06079-BJR
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted October 17, 2022
Seattle, Washington
Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.
Concurrence by Judge R. NELSON.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3. In a contemporaneously filed
published opinion we address an issue of first impression—whether the Supreme
Court’s Opinion in Carpenter v. United States, 138 S. Ct. 2206 (2018) extinguishes
the private search exception to the Fourth Amendment for GPS location
information. We hold it does not. We assume the parties are familiar with the
facts and address the remaining issue before us here.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Washington State Privacy Act. Mr. Electric argues that the
Government “recorded” the email, telephone communications, and location
information it had been provided when it saved the records to a computer in violation
of the Washington State Privacy Act. A violation of the Act requires “(1) a private
communication transmitted by a device, which was (2) intercepted or recorded by
use of (3) a device designed to record and/or transmit (4) without the consent of all
parties to the private communication.” State v. Roden, 321 P.3d 1183, 1186 (Wash.
2014) (internal citation omitted).
We agree with the district court that Kearney v. Kearney is instructive. 974
P.2d 872 (Wash. Ct. App. 1999), review denied, 989 P.2d 1137 (Wash. 1999). In
Kearney, the mother in a divorce proceeding recorded conversations between her
husband and their children and provided them to the children’s guardian ad litem
who in turn (1) provided them to the children’s psychological evaluator and (2) filed
transcripts with the court. Id. at 873. The husband sued the guardian, the
psychological evaluator, and the mother’s attorney for violating the Act. Id. at 873–
74. The trial court granted the defendants’ motion to dismiss finding no violation of
the Act under this set of facts.
Mr. Electric attempts to distinguish Kearney because “the 1999 Kearney court
was not faced with the same technological landscape present today.” This argument
is unavailing. Mr. Electric points to no Washington case that finds a violation of the

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Act on the facts alleged. And while technology changes, and the technology in
question today is different, the facts in Kearney and the instant appeal overlap to a
degree that the holding in Kearney still applies to new technologies like those
implicated in this case. Summary judgment was properly granted on the
government’s cross-motion for summary judgment on this claim.
AFFIRMED.

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1
James Kleiser, et al v. Benjamin Chavez, et al, No. 21-36029
R. NELSON, Circuit Judge, concurring:
I concur with the majority’s conclusion that the district court properly granted
the Department’s cross-motion for summary judgment on Mr. Electric’s Washington
State Privacy Act claim.
I disagree with the majority that Kearney v. Kearney resolves the issue. Maj.
at 2–3; 974 P.2d 872 (Wash. Ct. App. 1999), review denied, 989 P.2d 1137 (Wash.
1999). In Kearney, the plaintiff only alleged that the defendants had divulged
communications that a non-defendant had recorded. 974 P.2d at 873–74. Kearney
recognized that the Washington State Privacy Act does not impose liability for
divulging the contents of private communications transmitted by telephone,1 but
only for intercepting or recording those communications. Id. at 876; RCW 9.73.030.
Here, Mr. Electric alleges the Department recorded its communications without
consent by saving previously recorded communications provided to it by Mr.
Electric employees to a Department computer. See Maj. Op. at 2. If saving
communications to a computer counts as “recording” within the meaning of the
Washington State Privacy Act, then defendants will be liable. Kearney does not
answer that question.
1 The statute also applies to communications transmitted by other devices. RCW
9.73.030(1)(a).
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Mr. Electric makes a colorable argument that saving communications to a
computer is recording them within the meaning of the statute. See Record, Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/record (last
visited Nov. 18, 2022) (“[T]o cause (sound, visual images, data, etc.) to be registered
on something (such as a disc or magnetic tape) in reproducible form”). But that
activity is not what the statute captures. The initial recording or interception of a
communication is covered by the statute. But the later copying of that conversation
by others after its contents have been shared with them is not. And the Department’s
actions here fall on the “subsequent copying” side of the line.
Analogizing our facts to Kearney, it would be as if the psychological evaluator
did not just divulge a transcript of the recorded communication to the court, but also
saved the transcript to her computer. Although Kearney did not consider those facts,
it seems unlikely that this minor action would have brought the plaintiff’s claim
within the scope of the statute. In my view, Kearney supports only the proposition
that an original interception or recording of a communication is covered by the
statute, not subsequent copying of that recording.
Applying that rule to this case, the district court’s ruling for the Department
on its cross-motion for summary judgment on Mr. Electric’s Washington State
Privacy Act claim was still proper, so I would affirm.

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