Bowen V Kirkland 22a

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION TAMMI P. BOWDEN,

) ) Plaintiff, ) ) vs. ) ) KIRKLAND & ELLIS, LLP, an Illinois ) limited liability partnership, ) ) Defendant. )

No. 07 CV 975 Judge Pallmeyer Magistrate Judge Cole

PLAINTIFF’S SUPPLEMENTAL SUBMISSION ON THE FEASIBILITY OF CELLULAR TELEPHONE CALL INTERCEPTION This is an action for impermissible discrimination in employment based upon race and retaliation. Plaintiff alleges, inter alia, that, as part of the retaliation carried out against her, “Defendant monitored Plaintiff’s private, off-the-job, and non-job related ... communications, for the purposes of harassing Plaintiff; determining who, if anyone, was assisting, informing, and/or encouraging Plaintiff in her efforts to protest racial discrimination as practiced by Defendant; inducing Plaintiff to leave Defendant’s employment, and in the further hope of confecting colorable grounds for the termination of Plaintiff’s employment.” See Complaint, ¶ 15(c). Prior to the holding of the parties’ Rule 26(f) conference and the submission of their Rule 26(f) report, Plaintiff filed an emergency motion seeking leave to initiate discovery relating to her claims that her cellular telephone calls were intercepted. See Plaintiff’s Emergency Motion to Initiate Discovery (April 16, 2007). Notice of that motion was given both to Defendant and to each telecommunications carrier from whom Plaintiff seeks records. See Notice of Plaintiff’s Emergency Motion to Initiate Discovery (April 16, 2007).

At the hearing held on May 1, 2007, the Court granted Plaintiff’s motion and permitted the requested subpoenas duces tecum to issue to the telecommunications carrier. See Order (May 1, 2007). Defendant, however, asserted that such interceptions are not technically feasible and that, in any event, Defendant does not possess the equipment or capacity to permit it to effect such interceptions. See Defendant’s Motion to Quash Third-party Subpoenas and Response to Plaintiff’s Emergency Motion to Initiate Discovery (April 30, 2007) and, in particular, the Affidavit of Paula Graller which was attached thereto. The Court directed Plaintiff to submit a memorandum showing the technical feasibility of such interceptions, and has conditioned the Court’s enforcement of Plaintiff’s outstanding subpoenas duces tecum on the submission of the memorandum. See Orders (May 1, 2007, and June 4, 2007). This is the requested memorandum. The Interceptions Alleged Plaintiff expects to prove that, on various occasions at times material to this lawsuit, when persons outside the premises of Kirkland & Ellis, using home telephones, mobile telephones, or other private telephones, dialed the number of Plaintiff’s personal mobile telephone, and Plaintiff and her mobile telephone were then on the premises of Kirkland & Ellis, those calls were intercepted by Kirkland & Ellis before being routed onward to Plaintiff’s mobile telephone. Plaintiff further expects to show that calls were also intercepted when initiated by Plaintiff using her personal mobile telephone while on the premises of Kirkland & Ellis and placing calls to the home telephones, mobile telephones, or other private telephones of other persons. Such interceptions permitted Kirkland & Ellis variously to monitor private conversations as they occurred; to record private conversations for subsequent review; and to capture information tending to show who was communicating with Plaintiff.

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Plaintiff further expects to prove that all this came to light when private parties who placed telephone calls to Plaintiff’s mobile telephone number received their billing statements and discovered that their calls were recorded as having been placed to a telephone number at Kirkland & Ellis. (Copies of such billing statements have been produced by Plaintiff to Defendant as part of Plaintiff’s initial disclosures pursuant to Rule 26(a)(1).) Plaintiff’s evidence will show that her personal mobile telephone was a Nokia digital telephone operating under the Global System for Mobile Communications (“GSM”) and using a Subscriber Identity Module, commonly known as a “SIM” card. A SIM card is a small device contained within a mobile telephone which holds, inter alia, all of the telephone’s identifying information and the information necessary to permit the telephone to connect to the network of the service provider. A SIM card is manually removable from a cellular telephone with as much speed and simplicity as the removal of a mobile telephone’s battery. The feature of removability of the SIM card is noted because, as will be seen, one way in which telephone calls may be intercepted is as a result of the copying of key data recorded on a SIM card. Plaintiff’s evidence will show that, during times material to the events at issue in this lawsuit, Plaintiff was away from her desk at Kirkland & Ellis on many days for long periods of time, as scheduled by her employer, and she left her mobile telephone (with its SIM card) on her desk, exposed and accessible, on such occasions. If, for purposes of intercepting Plaintiff’s telephone calls, personnel of Kirkland & Ellis needed to install other equipment in or near Plaintiff’s desk, there were many opportunities to do so in Plaintiff’s absence, even during normal working hours. Plaintiff’s evidence will also show that there were occasions, during relevant times, when she returned to her desk to find technicians “repairing” her computer and desktop telephone equipment, although she had not summoned technicians to perform any such work.

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The Capabilities of Kirkland & Ellis Defendant claims that “Kirkland & Ellis’s telecommunications system is not sophisticated. The telephone system is twenty years old.” See Affidavit of Paula Graller, ¶ 10 (April 30, 2007), who identified herself as the firm’s “Telecommunications Manager.” Id. at ¶ 1. Its telephone system may or may not be 20 years old, but Defendant’s claim disingenuously ignores the fact that modern telecommunications systems rely on computer networks as much as on “old-fashioned” telephone equipment, and Kirkland & Ellis turns out to have a very sophisticated communications system, indeed. Steve Novak holds the title of Chief Information Officer (“CIO”) of Kirkland & Ellis, and Plaintiff is informed, and believes, that Mr. Novak is the superior of Ms. Graller. Recourse to internet search engines produced numerous articles available in public media that indicate that Mr. Novak and Ms. Graller have impressive telecommunications, computer network, and Voice-OverInternet Protocol (“VOIP”) skills and experience. See, generally, Appendix A (where, in many instances, the names of Mr. Novak, Ms. Graller, and Kirkland & Ellis have been highlighted for the reader’s convenience). Mr. Novak formerly worked for 3Com, and is a notable pioneer in VOIP technology. Id. at 4. Ms. Graller, it appears, is an expert in “E-911”. From 1986 through 1999 she was Communications Services Manager of the Metropolitan Pier and Exposition Authority (“McPier”) in Chicago, and served thereafter as Voice Team Manager of W.W. Grainger, Inc., in Lake Forest, Illinois, and directed the installation of “E-911” systems for both employers. Id. at 31. On August 29, 2001, she addressed a conference on that subject at the behest of Avaya, Inc., a maker of telecommunications equipment which spun-off from Lucent Technologies, Inc.

Id. at 20.

Plaintiff can prove that “E-911”, meaning “Enhanced 911”, refers to the feature of the emergency calling system prevailing in North America which locates emergency callers, whether they use land-4-

line telephones or mobile telephones. This system was, in fact, pioneered by private firms and civilian authorities in Chicago prior to its spread across the United States and Canada, and an expert in the field, such as Ms. Graller, would logically have a great deal of knowledge about how cellular calls are routed from the telephone on which they are initially dialed through various towers, relays, hard wires, and other systems until they reach the dialed destination. In addition, internet job postings placed by Kirkland & Ellis for a Telecommunications Architect (March 10, 2007) and an Infrastructures Senior Manager (March 27, 2007) show the sophistication and complexity of Kirkland’s telecommunications and computer systems. See Appendix A at. 35-36. In 2006 Mr. Novak told Information Week that Kirkland & Ellis was able to store voicemail messages as sound files and to send them over its computer network where, according to the magazine, “They look like e-mails and can be forwarded to colleagues as attachment files.” See E. Malykhina, Information Week, “Can It Sing and Dance Too? — Speech Recognition, Text-toVoice, and Handwriting Recognition Technologies Let People Get More Out of Their PDAs” (2006), Appendix A, at 1-2. This averment directly contradicts the claim of Ms. Graller, made in 2007, that “Kirkland & Ellis does not have the technology necessary to record phone calls and/or convert them into text utilizing voice recognition software and then disseminate them via e-mail.” Graller Affidavit, ¶ 14. As early as June 15, 2005, the media reported that “Law firm Kirkland & Ellis LLP is ... deploying ... wireless [Local Access Networks] across seven offices worldwide. The phased rollout will give wireless access to clients and guests visiting the law firms’s offices.... See E. Malykhina, Information Week, “Work Without Wires” (July 18, 2005), Appendix A at 8-11. The same article shows Kirkland’s concern with system security and its expertise in the field. Id. at 10.

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We do not here allege that Mr. Novak, Ms. Graller, or any other particular individual participated in any scheme to intercept telephone calls or in any specific interception. We simply point out that Ms. Graller’s affidavit significantly understates the sophistication of Kirkland & Ellis in the field of telecommunications and the degree of knowledge and expertise that is, in fact, available to the firm. How Interception Can Be Achieved One model for the interception of digital cellular telephone communications was the subject of United States Patent No. 6,405,030 B-1, issued to Peter Suprunov on June 11, 2002. A copy of the patent certificate is attached hereto at Appendix B. The Suprunov “System for Interception of Digital Cellular Phone Communication” requires merely the copying of a targeted telephone’s SIM card or the entry of data onto the SIM card. It can then achieve what it describes as a “digital wiretap”. Using an “existing physical mobile network”, “every incoming or outgoing call will be modified as a ‘conference call’ with a predetermined phone number corresponding to a law enforcement listening room.” See Patent, supra, Appendix B, col. 2 at lines 37, 45-52. The Supranov patent was clearly motivated by a desire to assist police and other law enforcement agencies, and it states on its face that its aim is to supply such authorities with a means of effecting digital wiretaps as required by the Communication Assistance for Law Enforcement Act, 47 U.S.C. §§ 1001 et seq. Legitimate use of the Supranov technology may be confined to law enforcement agencies acting within the bounds of controlling laws and rules. But there is nothing inherent in the technology which restricts its use to legitimate actors. The information set forth in the patent is available for the world to see. The internet is full of offers for “passive GSM intercept systems”; one such example is attached hereto as Appendix C. The SigInt PGIS-900/1800 Passive GSM Intercept System, which -6-

seems to track much, if not all of the elements of the Suprunov patent, holds itself out as having “two intercept & decryption modes. The first mode allows real-time monitoring of the targets of GSM communications, but this relies on access to the target[’]s SIM card .... The second mode allows for delayed monitoring of the target[’]s GSM communications when there is no access to ... the target[’]s SIM card.” As noted infra, the evidence in the instant case will show that anyone desirous of having access to Plaintiff’s SIM card would have had ample opportunities over long periods of time to do so. The foregoing is hardly an exhaustive survey of the possibilities, and does not purport to be a methodical survey of the relevant literature. It merely demonstrates that technology permitting the interception of communications involving a mobile telephone of the kind used by Plaintiff exists and is easily located. Conclusion The immediate question is whether or not Plaintiff’s application to take discovery regarding the possibility of telecommunications intercepts passes a threshold test of possibility. Technology to effect such interceptions exists and information about it is readily accessible to the world. It is certainly accessible to those with knowledge in the field, and it cannot be denied that Kirkland & Ellis is manifestly by served by experts. There exists a prima facie case for the proposition that Plaintiff’s private telephone calls were intercepted: Caller’s billing records show that calls that they placed to Plaintiff’s mobile telephone were registered as having been answered by a landline at Kirkland & Ellis. Plaintiff and witnesses involved in her case associate retaliatory behavior on the part of Kirkland & Ellis with periods of time when, in retrospect, it appears that something unusual was transpiring with respect to their private telecommunications. If such events did, indeed, occur, then they are unquestionably relevant to the issues presented in the case at bar. The records sought -7-

by subpoenas duces tecum from telecommunications carriers bear a reasonable relationship to those issues, and the discovery requests are reasonably calculated to lead to the discovery of admissible evidence. Dated:

June 13, 2007. Respectfully Submitted By:

/s/ Joseph A. Morris _______________________________ JOSEPH A. MORRIS One of Counsel for the Plaintiff

JOSEPH A. MORRIS CHARLES H. BJORK M ORRIS & D E L A R OSA 39 South La Salle Street 5th Floor Chicago, Illinois 60603 (312) 606-0876 Counsel for Plaintiff

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