Texas lawyer suing Apple over FaceTime bug claims it was used to snoop on a meeting A Texas lawyer is suing Apple over its FaceTime eavesdropping bug, claiming it allowed someone to overhear a meeting with a client. Larry Williams II filed the case in Harris County, Houston, following revelations that it was possible for callers to listen in to the mic on a person's phone or Mac before that person accepted or …
The article doesn't state the reason (and I've not read the PDF of the suit which I hope does give some kind of concrete evidence). My guess is he found out from his recent call history? Did the bug record the incoming but answered Facetime call? If so, did it record a missed call or an answered call (with a duration shown)? It's still a leap of faith from missed Facetime call to "Someone recorded my private client meeting" but it would at least add some substance to the claim as it would show an incoming call that could have taken advantage of the bug (even though it doesn't show any recording or listening took place).
Can he actually provide proof that the Facetime bug actually caused him a problem? At the moment he seems to be saying that because it could (in theory) have caused him a problem, then it must have caised him a problem, and therefore Apple must pay up. In practice he is going to need to prove that the information leak occured in the meeting, and that neither him nor anyone else in the meeting was not carrying any other devices that could have recorded the meeting,and that neither him nor anyone else in the meeting talked to any third parties after the meeting. A pretty high bar to leap over unless he can prove that the bug was actually used in the course of the meeting (which will be even harder to prove).
First, he is going to have to prove that the meeting was even recorded, and he will have to state who did the recording. In his filing, he didn't even provide a date of the alleged meeting.
He will have to provide sworn affidavits from either the person who did the recording (self-incriminating) or someone who has first hand knowledge (anything other than first-hand knowledge is inadmissible hearsay.)
Once that has been established as fact, THEN he will have to prove that the Apple product was used to record the meeting. Then he is going to have have to establish that he didn't have any other applications on his phone that could be used to remotely record the meeting.
Now, this is civil court and not criminal court, so he doesn't have to establish proof beyond a shadow of doubt. He only has to establish a preponderance of evidence -- meaning that it is more likely than not.
However, he is going to have a very tough time doing that. The only way that he is going to prove that the meeting was recorded is to provide a copy of the recording. He could also find someone willing to testify under penalty of perjury that they have personally listened to the recording and that they have first-hand knowledge that the recording was of the meeting in question -- meaning that they themselves would have to have been at the meeting -- but if they can do that then they could have made the recording themselves using any number of means unrelated to this bug, and it IS more likely that someone used a standard digital recorder than used an undisclosed bug, especially as the bug doesn't have the ability to create a recording in an of itself. He will also have to provide affidavits for all in attendance that they didn't record the meeting, and explain what due diligence he undertook to insure privacy at this meeting.
Additionally, he is not just suing Apple -- He is also suing the developers, distributors, and advertising agents. He is claiming that each of them not only knew of the bug, but recklessly proceeded in bringing the product to market knowing ahead of time that the bug existed. The discovery is to get the names of the people who acted in that capacity so that he can add them to the suit by name.
No, he is trying for an out-of-court settlement because he knows that the cost of discovery is going to be high and is hoping that SOMEONE (he knows it won't be Apple) would rather pay off a nuisance lawsuit than undergo the expense of fighting it. He is leveraging the "vast experience" that he has gained in his less than 4 years of practicing personal injury law on the claim that within the less than 90 days that it has been since the bug was introduced that an event has occurred that has resulted in irreparable harm and PHYSICAL pain and suffering, but can't even give the date of the alleged event. He is smart enough not to have himself for a client and is using another attorney to file the suit -- however if he was serious about taking this to court you would think that he would pick someone who is well versed and has lots of experience in this area of law -- but instead he hires a personal injury lawyer who specializes in car accidents with just of a year of experience as an attorney.
If it goes to court he is going to have to affirm, under oath, under penalty of perjury subject to incarceration and disbarment, to the events alleged in his filing. He certainly doesn't want to do that, otherwise he risks irreparable harm to his future as an attorney and it will have been at his own hand.
I kind of hope that Apple doesn't settle. Lawyers like this shouldn't be practicing law.
Actually we know the meeting was recorded. (It was a deposition.) ;-)
Looks like you did a bit of digging... but just a few corrections...
1) He has a lawyer, even though he is a lawyer. This is done because he lawyer can make statements tat he could not make since he's the plaintiff. (Lawyers tend to 'misspeak' but do not lie. ;-P )
2) Its already a court case. He's filed a complaint with the court.
That said, he'll have to submit an affidavit of his versions of the facts.
If he's caught lying, it could be perjury if they can show intent.
Is it grounds for disbarment? Possibly, but not necessarily.
3) The paragraph about continued harm is verbatim text from a personal injury template. Its there as a way to up the award or settlement. It has no bearing on the case one way or another until he wins at trial or Apple wants to settle.
4) Yeah, we know its going to get tossed. The question is if its tossed w prejudice or not. If not, if he's dumb enough to refile the judge may allow it. As it stands, his complaint is on the surface deficient because he doesn't state any actual harm only the possibility that it could have happened. (Sue your car manufacturer over a defective airbag because you learned that it was defective even though you had it replaced before it caused harm...)
While guys like this shouldn't be allowed to practice law, they do. I know of a lawyer that suborned perjury. Of course I can't prove it. I just know and if I had to, could prove that a person who signed the affidavit did in fact perjure herself but it won't come to that. So that lawyer is still practicing law today.
Apple will not settle. They will get it tossed, hopefully with prejudice. And then they will move on. It will cost them maybe $500 or $1,000 USD by a junior lawyer or their in house counsel.
Is it grounds for disbarment? Possibly,[...]
There you go, "lost ability to earn a living". Self-fulfilling and stuff. On a more serious note, I'm not surprised - right now fighting, from the second line though, a lawyer in court who's obviously also represented by a lawyer. The latter one is maybe not very clever (or unable to control his client) but ok, while the former is risking disbarment. Will be a happy day once this happens.
Sorry no, it doesn't work that way.
The paragraph is boilerplate language to up the ante for damages.
Its standard for a lawyer to not represent himself but to have another lawyer represent him. Same too for a judge. (Yes I've seen it happen.) The reason being is that a lawyer has a belief in their client being innocent and what the client claims to be true is true. So he can say things and if he says something that isn't true... he misspoke. Lawyers also are known for bluffing. Its not a lie until they get called out for it being a lie.
Prior to going to trial, Apple would have the right to depose the lawyer. That's where his case falls apart.
The short answer is maybe it will get tossed.
We are hearing about this second hand. Unless we see the actual complaint, we don't know for sure.
That said, on the surface, his complaint is deficient. You are correct in that he fails to show that harm did occur and if it did, his second complaint is how he is further impaired in his future work.
Unlike a criminal case, in a civil case, there is more latitude. Meaning he doesn't have to prove beyond a reasonable doubt but that its more than likely this happened. In a deposition, you have your side and the guy being deposed has their lawyers and either someone taking dictation. (legal court reporter) Or its being videoed.
The first hurdle that we don't see in the reporting of the complaint is that the deposition was in fact leaked.
The second is that there is a reasonableness in that neither party discussed the deposition, and the third is to show continued harm.
I agree that this complaint will get tossed but he could in theory amend it if he can show actual damages and the likelihood that he was bugged.
I've seen lawyers like this and I've seen bad judges actually buy in to their lies.
Apple has deep enough pockets that they can and will get this tossed and could even bring sanctions against the guy.
"The actual complaint" is linked directly from TFA.
Even if we accept the complaint at face value, it's not at all clear how this defect prevents him from earning a living in future, unless he's already been disbarred as a result. Is he incapable of taking a deposition without carrying his iPhone with him?
If the bug was used, it can be proven. When the call comes in, the phone will ring normally, bringing this to the attention of the person in the meeting. The records will show if someone grouped themselves into the call. Whether you can prove harm can be tricky, but it wouldn't be hard to prove that the bug was used, and having that happen in a private deposition would probably be enough reason to say there was some negative outcome for you. If they did their research, they can probably prove fault by Apple. If they only have some evidence that someone listened in some way, they probably won't.
Depends on state and law. Unlike the UK, many US laws don't need evidence of loss in order to be heard.
Uhm no.
Its pretty universal in the US.
The plaintiff has to show harm in order to claim damages.
What will happen is that Apple will file a motion to dismiss (possibly w prejudice) because his complain is deficient. He could then respond to the motion by arguing that he did have harm and file an affidavit explaining the harm. The judge then decides after meeting them in court or in chambers.
To be clear, the guy has to be able to show harm otherwise it gets tossed. Note: There's a lot of latitude in a civil case.
But harm is pretty universal in US and state cases. It's based on Constitutional standards for "standing": you can't sue unless you have standing, and one of the criteria is that the accused must have harmed you in some way.
...If he kept going with the meeting while is phone was constantly ringing a facetime call.
It will be interesting to see if there is a version of this that can be triggered silently, or after the call dialog is dismissed, but it's gonna be tragically obvious if the same person you don't want to talk to keeps trying to video call you over and over. Good chance Apple will have logs as well. I expect that this laywer will have an uphill fight, and Apples lawyers will probably use him for ballistics training in court. Sounds like even their interns would roast him so bad I'd recommend investing in asbestos underpants.
The person who's really screwed would be the person trying to listen in. If that apple ID gets traced your looking at more than a slap on the wrist.
Is that while the phone 'rings' for the incoming Facetime call, anything said during that time can be overhead by the other participants in the Group FaceTime. It rings a limited number of times, so your window of opportunity would be limited. You'd have to keep calling back over and over again to record an entire deposition.
How does that work, even with the phone on silent it will vibrate and the screen will light up. No one noticed a phone doing that during an entire deposition? If it is in a pocket/purse/briefcase its ability to "overhear" would be limited, it would have to be out in the open to be capable of capturing everything said (even then it would probably miss stuff said by people in the opposite direction of its microphone, we all know cell phone microphones are not studio quality omnidirectional jobs)
I think this lawyer is very likely of the ambulance chaser persuasion.
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