Details of “Wiretapping” Case
On March 21, 2017, I spoke with my attorney, Walter Bussart who represented me in my claims against my step mother and stated I wanted to video tape the depositions the next day. He advised me that if they are to be used in court a written notice must be sent to other parties prior to the depositions. I told him I just wanted to record it in the event Bill or Matt acted stupid (as in do anything threatening). He said that will be fine, I will let Colby know before we start. He said, “if he objects” I will let you know. I never heard an objection so I proceeded to record them.
It was a last minute decision to record them and I did not have a camera with audio capabilities in stock. I used two 6 mm lens cameras. Two cameras covered the area I wanted to record, both sides of the table. On a table against the wall perpendicular to the deposition table I set up the following equipment:
A digital video recorder (dvr)
A Tripod with 2 - 6mm cameras attached to an 18” flat piece of aluminum
A notebook computer
A power strip
An 8 port PoE switch
Laptop bag and cabling
I used a Olympus Digital Voice Recorder placed on the table in front of me, in clear view, to record the audio.
As we began the depositions, I stood up from my chair and walked over to the recorder and turned it on. I returned to my seat and turned on the audio recorder and placed it on the table in front of me in clear view of everyone. (According to Judge Jones, I as a citizen have the right to record conversations and no notices have to be given as with recordings to be used in court.)
At approximately 49 minutes into Diane Rackley’s deposition a break was taken. Walter and I left the room. Diane Rackley, Colby Baddour, Matt Rackley, Colby’s assistant and the Court Reporter stayed in the room the entire time.
At approximately 1 hour 51 minutes into Diane Rackley’s deposition, Break #2 was taken. Just prior to the break, Colby Baddour ask if I would turn off my recorder (and pointed to it) during the break. I agreed and picked up the recorder and moved the “Power” button to “Hold” position. I knew if I turned the “REC” button off it would stop the recording and I would end up with multiple files for each deposition. I wanted only one file and thought hitting the “HOLD” button would place the recorder in a “hold/pause” state. I only recently purchased this recorder and this was the first time I ever attempted to pause a recording on this device.
I frequently used a recorder to record the meetings of the Pulaski/Giles County Economic Development Commission. When pausing this recorder, you simply press the “HOLD” button.
While in the parking lot of the Hotel at the conclusion of the depositions on Day 2, Colby requested a copy of the recordings. I gave the recorder to Walter to take back to his office for safe keeping. I copied the voice recordings to my computer as soon as I returned to my office. I did not listen to anything.
On April 19, 2017 we had a court hearing in Columbia before Judge Jones. Just prior to starting an investigator with the Distric Attorneys Office enters the courtroom and talks to the Judge. I am asked to come out into the hallway where I am told I am being investigated for wiretapping around the taping of the depositions. Tommy Goetz asked me to get him a copy of the recordings. I agreed.
The next day I went to Walter's office to retrieve the recorder. I copied all the recordings from the two days down to an external hard drive. I copied them to a DVD and delivered them to Mr. Goetz at his DA office in Columbia. I had not viewed nor listened to any of them. Mr. Goetz called me and told me he could not view the recordings for some reason. I removed the second camera made another DVD for him and delivered it to him. While I was there, he told me “I see nothing wrong with this, I just have to do my job and sit and watch them.” He went on to say, “if they knew they were being recorded, it was perfectly legal for you to record them.” I agreed. I asked him if he needed anything else, the recorder or anything. He said, “no and don’t worry about this, it is nothing”. Approximately 2 weeks later, I am indicted and arrested for ‘Wiretapping”.
I hired John Colley from Columbia, Tennessee to represent me on this and on January 29th, we went to court. Just prior to it starting, Colby Baddour files an “Emergency Motion" to limit his testimony in the case. He was trying to protect himself most likely. So we agree to limit his testimony but only under the conditions that the State must limit its proof to “only the conversations between Matt and Diane” as the indictment stated. The Judge and attorneys agree there was no conversations between Matt and Diane”. The State was forced to dismiss or “Nolle Proseque” the case.
Two weeks later, Colby again worked desperately to have me re-indicted. A month later I was re-indicted for Wiretapping. This time the indictment read that I “illegally recorded conversations between Diane and Colby” and a second charge for illegally recording conversations between Colby and Jason Whatley.
This trial was set for August 28 and 29, 2018.
In April of 2018 we were ordered to mediation in the other civil cases. We reached an agreement and it was hand written on a piece of paper and signed by everyone. Late that afternoon, I posted on facebook, “Settlement Reached... Celebration at Legends tonight”. My girls and I and a few friends went to Legends. About an hour after we got there, Matt and Connie come in followed by Bill. Bill and I engage in some words and he eventually threatens to kill me. The Legends staff calls the police and Bill leaves before they arrive.
A few weeks later, Colby provides his version of the Settlement Agreement which is nothing like what we had agreed on in mediation. After going back and forth many times trying to agree we could not and they backed out of the agreement. We were back in court in July and they approached us wanting to discuss a settlement again. They wanted me to sign a settlement agreement that prohibited me from every being able to file a lawsuit against them from the beginning of time to the end of time. I refused, because I knew if I was acquitted of the wiretapping charges I was prepared to sue everyone that had their fingers on this.
Eventually it was agreed if the charges were dropped in the wiretapping case we would settle the other civil cases. Reluctantly, I agreed to settle this. I really really wanted my day in court with them on the wiretapping issue to prove my innocence.
Here are the reasons why I would have never been convicted:
My attorney told them prior to the depositions, they were being recorded.
THEY KNEW THEY WERE BEING RECORDED.
All recording devices, the camera system and the voice recorder were in plain view for everyone in the room. There was never an attempt to hide anything
As the deposition started, I stood up from his chair at the table and walked to the video equipment and turned it on. As he returned to his seat with audio recorder in hand, he turns it on and places it in the center of the table.
At no time during the first break did Colby or anyone else in the room acknowledge (or say anything about the recorder) that they “discovered” the recording equipment. Audio or Video.
Just prior to Break #2, Colby ask if I would turn off my recorder (pointing at the audio recorder on the table) . Even though I do not believe I had to do so, I agreed.
During that Break #2, Colby looks closely at the recorder and tells everyone in the room it is still recording. They clearly knew it was recording.
During the Break #3 during the deposition of Matt Rackley, they again look at the recorder and state that is recording.
During the Break #4 during the deposition of Bill Rackley, Colby informs Jason Whatley that “he (David) tells us he is putting the recorder on pause. Whatley says, “well I wouldn’t trust that”. Baddour says “I don’t either” and they laugh. The term “Pause” was never used by David. The second indictment had two charges, the second said I illegally recorded conversations between Colby Baddour and Jason Whatley. How on Earth could Jason Whatley claim they did not know this when the VERY FIRST thing Colby said to Jason was it was being recorded. Blatant lies like this get people sued!
There are rules to follow IF you plan on using the recordings in court. Even Judge Jones stated in a hearing, no notice was needed if we didn’t plan on using it in court.
During breaks 2,3, and 4, Colby continues to “inspect” the recorder to see if it is recording. If he knew it was, why didn’t he say anything when we returned off break.
THERE WAS NO EXPECTATION OF PRIVACY IN THE DEPOSITION ROOM
The Hotel is a public facility, no expectation of privacy exits in a Hotel Conference room.
There is no expectation of privacy in a deposition room. Especially since nonparty individuals were there at the same time.
The proper procedure of “going off the record” is for one attorney to state that, the other to agree and the court reporter to acknowledge “going off the record”.
At no time, did either attorney ask to go “off the record” during the three depositions. The transcripts of the depositions clearly prove this.
While Walter was asking the questions, when he wanted a private conversation, he and I went out into the hallway.
While Colby was asking the questions, when he wanted a private conversation, he and his clients went out into the hallway.
The court reporter remained in the Deposition room at all times, except one short bathroom break.
Hotel personnel entered the room during a break to bring water.
Colby stated in his Affidavit;
“10) However, David Rackley did not disclose that he was also operating what appeared to be video recording equipment which was situated on a side table along with certain other audiovisual equipment belonging to the hotel where the deposition was being taken.”
Also, Colby Baddour stated in open court on August 23, 2017;
MR. BUSSART: You said, Is this being
recorded? I said, Yes.
MR. BADDOUR: No, the audio recording
after the first break I asked you about
see the cameras until the end of Day 2.
MR. BUSSART: Okay. They were sitting on
the table. They were this high (indicated).
Well, along with all the AV
equipment from the motel.
It was never disclosed
prior to the --
MR. BUSSART: Well, even if he didn't
know, there can't be anything wrong with -- The
rules allow him to record it. So the only thing
that should be enjoined is any discussion at the
See the photos of the deposition room. There was no other equipment in the room owned by the hotel. IF the Hotel was recording the room, why didn’t he file charges against them for listening to private recordings. Obviously he had no concerns for the Hotel recording them and no expectation of privacy from the Hotel.
False Statements in Colby Baddour’s Affidavit
In Colby Baddours Affidavit in support of a motion for temporary restraining order, Item number 5, Baddour states “Without notice to anyone (including his own counsel), David Rackley recorded the depositions using what appeared to be audio and video recording devices.” This is a false statement, my attorney was fully aware and he advised them. Furthermore, the video recording device was large and placed in plain view of everyone at the end of the table behind the court reporter.
In Number 6, he states “Following the first break in testimony on March 22, while David Rackley and his counsel were out of the room, counsel for the estate noticed one of the recording devices on the table where depositions were being taken.” If you view the video and audio of this break, Colby does not make any acknowledgment of the recording device(s) during the break. Ask him to identify where in the video he “noticed” the recording device. There is no “ah -ha” moment when he discovers it. He knew it was there from the beginning. Totally false statement.
In Number 10 of the Baddour Affidavit, it states “However, David Rackley did not disclose that he was also operating what appeared to be video recording equipment which was situated on a side table along with certain other audiovisual equipment belonging to the hotel where the deposition was being taken.” My attorney advised Colby Baddour prior to the depositions. The equipment was well visible and in no way hidden. There was no other recording equipment in the room other that belonging to David Rackley and none belonging to the hotel.
In Number 11, Baddour states “David Rackley did not disclose the second recording device to the estate’s counsel and did not offer to turn off the second recording device even though requested by the estate's counsel to turn off his first recording device during the break.” Again, Walter disclosed the video tapping of the depositions. I did not need to disclose anything further. When Colby asked me to turn off my recorder, he pointed at the voice recorder only. The video recorder did not record audio.
In Number 12, Baddour states, “the off the record conversations were privileged communication between an attorney and his client.” Why did he have these conversations in the presence of the Court Reporter. At no time during the entire depositions did either attorney ask to go “off the record”.
In Number 13, Baddour states, “Even if the off the record conversations were not privileged by the Attorney Client Communications privilege, the recordings were made by someone who was not a party to the conversation and without the knowledge and consent of the persons being recorded.” Colby Baddour and all persons in the room were fully aware of the recording devices.
Chaz Molder’s Statement at Hearing 11/09/2017
Transcript of Hearing 11-09-17
MR. MOLDER: When we took party depositions, David
Rackley put us on notice that this entire courthouse was --
was mic'd and that he had the ability to basically hear
private, privileged conversations. And so I would just
like Mr. Bussart, or Mr. Rackley, to -- to affirmatively
and put on the record what exactly is mic'd within his
control that he has the opportunity to listen so that we
can know where we need to take our conversations which are
THE COURT: Well, it's a nice day. Take them
MR. MOLDER: Well, according to Mr. Rackley at the
deposition, that even it goes to the outside of the grounds
MR. BUSSART: If Mr. -- if Mr. Molder wants to put
Mr. Rackley on the stand and make him his witness to do
MR. MOLDER: Well, I don't think -- Your Honor, I
think that it's not a tall task to ask that we know where
we're being bugged and where we're not.
MR. DAVID RACKLEY: Your Honor, I'll be happy to
THE COURT: All right. Go ahead.
MR. BUSSART: I want him to call him as a witness
if he wants him to testify.
MR. MOLDER: If this Court doesn't think that it's
important for the attorney and the client to have
privileged conversations without having --
THE COURT: Oh, the Court does think that's
MR. MOLDER: Well, then I -- I would defer to
Mr. Rackley to advise the Court and the record so that
we're all aware.
THE COURT: Restate what you believe the
deposition testimony said. And can you cite me to a page
MR. MOLDER: I can, Your Honor. Give me one
moment. Page 86, Your Honor, of David Rackley's
deposition, which occurred on August 2nd, 2017, in the --
what I believe to be the jury room, or the Daughters of the
American Revolution room as it's also known.
THE COURT: American Revolution room?
MR. MOLDER: The Daughters of something. I don't
THE COURT: I don't believe you read the sign.
MR. MOLDER: Apparently, I have not. I was so
taken aback that my conversations were being recorded.
Mr. Baddour on page 86, line 20, stated, "Before
we go off, I just want to be clear. Earlier you said this
device is going to stay recording in this room during the
break. There are also cameras in the courthouse and you
have access to those cameras." Mr. Rackley, "I do."
Mr. Baddour then said, "Do they have audio?" Mr. Rackley
stated, "No. Well, I'm not going to say that. I can't
disclose that." Mr. Colby Baddour says, "Do you know if
they have audio?" Mr. Rackley says, "I can't disclose what
my clients have. That's confidential." Which is irony in
and of itself, Your Honor, regarding the confidentiality
claim there. Mr. Baddour then says, "I'm asking if there
is anywhere in this courthouse that we can have a private
conversation." Mr. Rackley says, "Yeah." Mr. Baddour then
says, "Where is it?" Mr. Rackley says, "Out in the hall
away from the cameras -- I mean, I don't know. I'm not
going to" -- Mr. Baddour says, "Are there cameras in the
hallway?" Mr. Rackley says, "I'm not going to disclose
what my clients have." Mr. Baddour said, "Thank you."
Mr. Rackley then says, "Go outside." And recess was taken.
So the fact is Mr. Rackley wouldn't disclose at
the time, and, you know, if he's prepared to disclose
today, then, granted, I'll be glad to put him under oath if
that's what Mr. Bussart wants, to put his client --
THE COURT: Well --
MR. MOLDER: -- on the stand.
THE COURT: You don't need to respond,
Mr. Bussart. I -- what happened during the deposition on
courthouse premises is a very unfortunate thing that should
have never happened. But I've seen too much in this
litigation of playground, schoolhouse, back and forth, and
I'm not going to let that become a significant issue in the
Chancery Court in deciding what's to be decided by this
Court. I think you can find a safe place to talk. And
we'll be in recess until 10:45. You've got less time now
to talk than you had.
Also during the depositions of Phil Baddour and David Rackley on August 2, 2017 Colby Baddour intentionally blocks the camera while Chaz Molder stands
(See the Video)
Argument #3 - “Intentionally”
Tenn. Code Ann. § 39-13-601 (2017) states (only certain parts copied here)
39-13-601. Wiretapping and electronic surveillance -- Prohibited acts -- Exceptions.
(a) (1) Except as otherwise specifically provided in §§ 39-13-601 -- 39-13-603 and title 40, chapter 6, part 3, a person commits an offense who:
intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
(i) The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) The device transmits communications by radio, or interferes with the transmission of the communication;
(C) Intentionally discloses, or endeavors to disclose
, to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection (a); or
uses, or endeavors to use, the contents of any wire, oral or electronic communication, knowing or having reason to know, that the information was obtained through the interception of a wire, oral or electronic communication in violation of this subsection (a).
The Olympus Audio Recorder was purchased by me on 9/18/2016.
When asked to turn off the recorder, I pressed the “Hold” button thinking it would simply pause or “put on Hold” the recorder. I knew if he turned it off, it would create multiple recording files. I desired to have one file for each deposition.
When I pressed the “Hold” Button the display showed “Hold” for several seconds. I had no idea the recorder was still recording. (Even though they knew they were being recorded) .
At each break as seen on the video, I proceed to press this button thinking I was “pausing” the recording. When the deposition resumed I pressed the button to“record”.
The recorder I used for Economic Development functions like this. If you press the “hold” button, it pauses the recording.
David’s old recorder was a Panasonic and it had a button Hold and REC. While recording, Hold stops the recording.
“HOLD” on the new Olympus recorder “locks” the buttons from being pressed.
It should be noted that David Rackley has never used, in any manner, anything that came from the audio and video recordings. The equipment was given to Walter Bussart immediately after the depositions for safe keeping. After the day in court in Columbia on April 28, 2017, David was directed by Investigator Tommy Goetz to provide him a copy of all recordings. David picked up the equipment from Walter's office copied the audio and video to DVD's and promptly provided it to investigator Goetz the next morning. David asked Mr. Goetz if he wanted the equipment and he told him "no". Goetz later called and said he could not open the files on the video DVD and David burned another identical DVD and delivered it to him. Goetz told David that he was listening to the audio portion and told David that it was obvious they knew they were being recorded and there was nothing wrong with that and that was not illegal.
He told David, "Don't worry about this!".
I did not know until after I was arrested that the recorder did not perform as I expected and "paused" the recordings during the breaks. It was after my arrest that my attorney discovered the breaks were in fact recorded. If I would have been dishonest I could have easily deleted the audio of the breaks, but I did not.
CREDIBILITY OF COLBY BADDOUR (A. Colbrook Baddour)
Had we gone to trial on this matter, Colby Baddour’s credibility would have been severely challenged. On one instance, he claimed to share “nothing but the roof” with his father in their shared office space. That was easily proven to be a bold face lie to the court when I issued a request for Public Records from Pulaski Electric System for the services provided to that building. It clearly showed only one Internet service and only one telephone trunk line. This clearly shows they share much more than a roof. Question! If you have a receptionist and they work for both the CPA firm and the Law Firm but they only have one computer and one phone, how can you separate the two. YOU CAN’T! I fired the CPA firm of Baddour and Garner in January of 2013, because they breached my confidentiality. I filed a complaint against them with the Tennessee Board of Accountancy and the Board of Professional Responsibility. The complaint is a public record but the investigation and everything thereafter remains confidential.
The wiretapping case was again dismissed on August 2, 2018 and can never be brought back up again.
Break #1 - Diane's #1 Break -
Break #2 - Diane's #2 Break -
Break #3 - Matt's Deposition -
Break #4 - Bills's Deposition -
If you would like to see the videos of the breaks in the depositions, please email me at email@example.com and I will provide you access to them.
Here is a link to another video at separate depositions where Colby Baddour blocks the camera.
What was the purpose of this?
See YouTube Video