Council on American-Islamic Relations Action Network, Inc. v. Gaubatz (31 F. Supp. 3d 237, 2014)

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Plaintiffs Council on American-Islamic Relations Action Network, Inc. (“CAIR-AN”) and CAIR-Foundation, Inc. (“CAIR-F”) bring this action against Chris Gaubatz, his father Paul David Gau-batz (“David Gaubatz”), the Center for Security Policy, Inc. (“CSP”) and three of its employees, Christine Brim, Adam Sav-it, and Sarah Pavlis, the Society of Americans for National Existence (“SANE”), and David Yerushalmi. Plaintiffs allege that Defendants conceived and carried out a scheme to place Chris Gaubatz in an internship with Plaintiffs under an assumed identity, which allowed him to remove and copy thousands of Plaintiffs’ internal documents and to record private conversations involving Plaintiffs’ employees without consent or authorization. In this action, Plaintiffs seek relief under thé Federal Wiretap Act, 18 U.S.C. §§ 2510-2522, the District of Columbia analog (the “D.C. Wiretap Act”), D.C. Code §§ 23-541-23-556, the Stored Communications Act, 18 U.S.C. §§ 2701-2712, and the common law of the District of Columbia. Presently before the Court are Defendants’ [154] Motion for Summary Judgment and Plaintiff CAIR-F’s [156] Motion for Partial Summary Judgment. Upon consideration of the parties’ submissions, the applicable authorities, and the entire record, the Court shall DENY Plaintiff CAIR-F’s [156] Motion for Partial Summary Judgment, and GRANT IN PART and DENY IN PART Defendants’ [154] Motion for Summary Judgment. With respect to Plaintiffs’ Wiretap Act claims (Count I), the Defendants’ motion is GRANTED as to: (1) claims by Plaintiff CAIR-AN; (2) Plaintiff CAIR-F’s claims for use and disclosure liability against Defendants Savit, Pavlis, SANE, and Yerushalmi; (3) Plaintiff CAIR-F’s claims for procurement liability against Defendants Savit and Pavlis; (4) Plaintiff CAIR-F’s claims for conspiring and aiding and abetting liability against all Defendants; and (5) Plaintiff CAIR-F’s respondeat superior claims against Defendants Savit, Pavlis, and SANE. With respect to Count I, Defendants’ motion is DENIED as to: (1) Plaintiff CAIR-F’s claims against Chris Gaubatz; (2) Plaintiff CAIR-F’s claims for use and disclosure liability against Defendants David Gaubatz, CSP, and Brim; (3) Plaintiff CAIR-F’s claims for procurement liability against Defendants David Gaubatz, CSP, Brim, SANE, and Yerush-almi; and (4) Plaintiff CAIR-F’s respon-deat superior claims against Defendants David Gaubatz, CSP, Brim, and Yerushal-mi. With respect to Plaintiffs’ Stored Communications Act claims (Count II), Defendants’ motion is GRANTED as to: (1) claims by Plaintiff CAIR-AN; (2) Plaintiff CAIR-F’s claims for conspiring and aiding and abetting liability against all Defendants; (3) Plaintiff CAIR-F’s re-spondeat superior claims against Defendants Savit, Pavlis, and SANE. With respect to Count II, Defendants’ motion is DENIED as to: (1) Plaintiff CAIR-F’s claims against Chris Gaubatz; and (2) Plaintiff CAIR-F’s respondeat superior claims against Defendants David Gaubatz, CSP, Brim, and Yerushalmi. Defendants’ motion is GRANTED with respect to Plaintiffs’ claims for breach of contract (Count V) and tortious interference with contract (Count VI). Defendants’ motion is DENIED WITHOUT PREJUDICE as to all of Plaintiffs’ remaining claims. The parties shall submit additional briefing as to these claims as set out in this Opinion and the accompanying Order.

I. BACKGROUND

A. Factual Background

Plaintiff Council on American-Islamic Relations Action Network, Inc. (“CAIR-AN”) is a self-described Muslim advocacy group with a mission that includes enhancing the understanding of Islam and promoting a positive image of Muslims in .the United States. TAC ¶ 10. Plaintiff Council on American-Islamic Relations Foundation (“CAIR-F”) is an organization related to CAIR-AN that was created on February 15, 2005. Defs.’ Facts ¶ 10. Although Plaintiff CAIR-AN was initially named Council on American-Islamic Relations, Inc., id. ¶ 6, CAIR-AN has used the name CAIR as its de facto public name since its’ founding. Id. “CAIR” is not a registered trade name or otherwise legal d/b/a in the District of Columbia. Id. ¶ 7. On June 15, 2007, CAIR-AN officially changed its name from Council on American-Islamic Relations, Inc. to its current name Council on American-Islamic Relations Action Network, Inc. Id. ¶ 8. CAIR-AN owns the real property at 453 New Jersey Avenue SE, Washington, DC, the location of Plaintiffs’ offices at issue in this suit. Id. ¶ 11. As best as the Court can understand, CAIR-F occupies the offices as a tenant by virtue of an unwritten agreement. Id. ¶ 12.

Defendant Center for Security Policy, Inc. (“CSP”) is an IRC § 501(c)(3) nonprofit, Washington, D.C. based think tank founded in 1988 by Frank Gaffney. Id. ¶ 1. Defendant Christine Brim is currently the chief operating officer of CSP. Pis.’ Facts ¶ 3. CSP believes CAIR (the public term apparently used to refer to CAIR-AN and CAIR-F) to be a Muslim Brotherhood front group operating in the United States. Id. ¶ 6. CSP often focuses its efforts on CAIR because it regards CAIR as an organization that is “hostile to American security interests.” Id. ¶ 7.

In late 2007 and early 2008, Defendant CSP initiated a documentary film project, referred to by Defendants as the “CAIR Documentary Film Project.” Defs.’ Facts ¶29. Defendants describe the film as a study of Islamism and organizations linked to the Muslim Brotherhood in the United States, with a particular emphasis on Plaintiffs. Id. ¶¶ 29, 31. The parties agree that the purpose of the documentary was in part to portray CSP’s beliefs about CAIR and the Muslim Brotherhood in America. Pis.’ Facts ¶ 15. CSP gave the project a working title of “CAIR Film Project” and Gaffney described the project as “an effort to make a film about the Council on American-Islamic Relations.” Id. ¶ 17; Pis.’ Ex. 7 (Gaffney Dep.) at 106:12-16.

In order to produce this documentary, CSP and non-party Manifold Productions created Publius Productions, LLC, an entity in which both companies had a 50 percent ownership interest. Defs.’ Facts ¶ 38. Defendants state that pursuant to this agreement, Manifold would act as the producer of the documentary and CSP would act primarily as its financier. Id. Internally, Publius referred to the CAIR Documentary Film Project as a “film proposal” called “Islam and America.” /<£¶ 40.

Defendants state that CSP conceived of and proposed the film as a series of interviews with individuals in the national security field relating to the relationship between the Muslim Brotherhood and CAIR-AN.. IdA 30. In order to provide background video to air alongside these interviews, Defendants state that they planned for the proposed film to include “B-roll” video of Plaintiffs and other organizations Defendants believed to be affiliated with the Muslim Brotherhood. Id. B-roll is a term in film production for “general imagery” or more specifically “visuals which support the audio that’s gathered in an interview.” Id. ¶ 33.

Defendants state that in order to obtain this B-roll, CSP contacted another organization, Defendant Society of Americans for National Existence (“SANE”). Id. ¶42. SANE is a nonprofit organization founded by, among others, Defendant David Ye-rushalmi and his wife. Pis.’ Facts ¶ 10. CSP reached out to SANE though it’s then-president Yerushalmi, who also served at this time as general counsel to CSP. Defs.’ Facts ¶ 42.

Defendant SANE, through Yerushalmi, recommended Defendant David Gaubatz to Defendant CSP to conduct “field research” for the film. Id. ¶ 44. David Gaubatz had an ongoing contractual relationship with SANE to conduct field research for an unrelated project entitled “Mapping Sharia.” Id. ¶ 43^44. Apparently because of this pre-existing relationship, CSP, SANE, and David Gaubatz decided that SANE would contract with David Gaubatz to provide, according to Defendants, “the field research services required to obtain the B-roll for the CAIR Documentary Film' Project.” Id. ¶47. Defendant SANE also entered into a contract with Publius “to provide researchers to obtain B-roll”, in effect creating a relationship between Pub-lius and David Gaubatz. Id. ¶ 48. Defendants state that all parties understood that SANE was acting as a contractual intermediary and that all funding to pay David Gaubatz would be paid by CSP, either through Publius or directly from CSP. Id. ¶ 52. In March 2008, Manifold terminated its involvement in the CAIR Documentary Film Project. Id. ¶ 53. At this point, CSP became the sole operator of Publius. Id. ¶ 54.

As part of the film proposal, CSP hoped to gather video footage from inside Plaintiffs’ office. Pis.’ Facts ¶ 18. Prior to entering into these contracts, Frank Gaff-ney and David Gaubatz discussed Gau-batz’s ability to obtain B-roll from inside CAIR offices. Id. ¶ 25. Gaffney and Gau-batz also discussed David Gaubatz hiring individuals who would volunteer to work as interns in CAIR offices and obtain film for the project. Id. According to Defendants, in mid-March 2008, Publius, David Gaubatz, and CSP decided that David Gau-batz would employ, train, and supervise researchers to volunteer at offices affiliated with Plaintiff CAIR-AN or at CAIR-AN itself, and use an audio-video recorder in an attempt to capture B-roll for the documentary film proposal. Defs.’ Facts ¶ 57.

Defendants state that David Gaubatz was responsible for all aspects of obtaining the B-roll, including employing the researchers, training them in how they were to obtain volunteer positions at Plaintiffs’ offices, and supervising the researchers during their volunteer internships. Id. ¶ 122. However, Defendants concede that CSP understood that it was paying David Gaubatz to identify, train, and supervise interns, and to instruct them on how to covertly obtain audio/video recordings from inside Plaintiffs’ offices. Pis.’ Facts ¶ 40. CSP further understood that these interns would be wearing inconspicuous audio/video recorders as part of their conduct while interning at CAIR offices. Id. ¶ 38. Defendants state that while Publius or CSP could ultimately reject a proposed researcher, the researchers would be David Gaubatz’s employees whom he would choose. Defs.’ Facts ¶ 122. Defendants state that David Gaubatz supervised and managed the day-to-day work relating to the researchers he employed to volunteer at Plaintiffs’ offices. Id. ¶ 127. Defendants state that CSP had no day-to-day involvement in the work supervised by David Gaubatz and had no substantive contact with the researchers during the volunteer internships at Plaintiffs’ offices. Id. ¶ 128. Publius employees did play a role in the decision as to which camera gear to purchase for use in “undercover filming,” and in training one of the researchers in how to use the video camera. Pis.’ Facts ¶¶ 33-35.

Defendants state that the contracts among CSP, SANE, and David Gaubatz expressly and substantively created independent contractor relationships between CSP and SANE, and SANE and David Gaubatz, respectively. Defs.’ Facts ¶¶49, 50. Plaintiffs dispute this description of the relationship, pointing to statements by David Gaubatz in which he appears to state that CSP and Yerushalmi had the power to direct him on how to perform the tasks that would lead to the acquisition of audio and video recordings from Plaintiffs’ offices. Pis.’ Facts ¶ 28 (citing Pis.’ Ex. 5 (David Gaubatz Dep.) at 77:24-78:3). See also Pis.’ Ex. 5 at 72:13-14 (David Gaubatz describing Yerushalmi as his “supervisor”).’ Plaintiffs further dispute the role of SANE, pointing to a March 2008 agreement between Publius and SANE for SANE to provide a team of “researchers” to covertly enter CAIR and create audio-video recordings for a documentary. Id. ¶20 (citing Pis.’ Ex. 26 (Publius-SANE Agreement) at 9). Defendants state that SANE had no knowledge that the project would require researchers to enter Plaintiffs’ offices and SANE had no knowledge that the project would require researchers to obtain B-roll from inside Plaintiffs’ offices. Defs.’ Resp. Stmt. ¶ 20. Rather, Defendants state that SANE simply contracted to provide researchers to Publius via its contract with David Gaubatz, who would actually hire, train, and supervise the researchers to obtain B-roll. Defendants state that SANE’s only role in the CAIR Documentary Film Project after the execution of these contracts was to transfer all funding received from Publius to David Gaubatz. Defs.’ Facts ¶ 52.

In addition, the parties dispute the motivations for using interns to obtain B-roll from inside Plaintiffs’ offices. Defendants state that the purpose of the B-roll was cinematic, and not investigative. Id. ¶ 35. Defendants state that they did not plan to expose Plaintiffs’ confidences, secrets, or proprietary information. Id. “Specifically, the B-roll of a volunteer in Plaintiffs’ offices was to capture background and context of the broader examination of the Muslim Brotherhood’s operation in the U.S.” Id. Defendants state that the purpose of wearing the inconspicuous button camera was so that the audio-video recordings, which would serve as B-roil, would capture the “natural life” of an intern at CAIR National and that the natural quality of the B-roll would be lost if the subjects of the recording knew they were being recorded. Plaintiffs disagree, stating that Defendants acted with an investigative purpose, and that the button camera was used for “undercover filming” of Plaintiffs in order to obtain secret, confidential, or proprietary information regarding Plaintiffs’ offices. They point to statements that Chris Gaubatz used “clandestine camera gear” during his internship in order to record footage that would not have otherwise been revealed “openly.” Pis.’ Facts ¶ 36. Plaintiffs also point to statements that CSP believed that CAIR would not approve or enable them to openly obtain B-roll for their film project if they knew of its intentions with the proposal. Id.

CSP, Publius, and David Gaubatz first decided to obtain B-roll of an intern volunteering inside the offices of an affiliate of Plaintiffs, referred to as CAIR MD/VA, located in Herndon, Virginia. Defs.’ Facts ¶ 32. This intern was Defendant Chris Gaubatz, David Gaubatz’s son. Id. Defendant Yerushalmi states that in preparation for this internship, he advised David Gaubatz of what he believed to be the circumstances under which the usé of a recording device in the CAIR MD/VA offices would be legally permissible. Id. ¶¶ 133,134.

Chris Gaubatz began his volunteer work at the CAIR MD/VA offices in Herndon, Virginia in approximately late March 2008. Id. ¶ 60. Chris Gaubatz made audio-video recordings while interning at CAIR MD/VA by using an inconspicuous button camera. Id. ¶ 57. He also removed documents from the CAIR MD/VA offices. Id. ¶ 76. Plaintiffs have stipulated that no audio recordings made by Chris Gaubatz at CAIR MD/VA are a basis for any of their claims against Defendants. Id. ¶ 78. Further, Plaintiffs have expressly stipulated that Chris Gaubatz’s removal of documents from the CAIR MD/VA offices are not the basis for any of their claims against Defendants. Id. ¶ 79. During this internship, at the request of David Gau-batz, David Yerushalmi provided legal advice to David Gaubatz regarding the circumstances under which he believed Chris Gaubatz could legally remove documents from the CAIR MD/VA offices. Id. ¶ 135.

After the CAIR MD/VA offices closed down, its former staff recommended to Chris Gaubatz and CAIR-F that Chris Gaubatz volunteer at Plaintiffs’ offices as an unpaid intern. Id. ¶ 81. Chris Gaubatz informed his father about this opportunity and David Gaubatz instructed him to apply for the position as a volunteer intern. Id. Hill.

Subsequently, Chris Gaubatz presented himself to CAIR’s national office located in Washington, D.C. as an applicant for a volunteer intern position. Id. ¶ 108. In applying, Chris Gaubatz used the alias “David Marshall” which he had used earlier at CAIR MD/VA. Id. ¶ 112. Defendants state that Chris Gaubatz used this alias as a security measure so that Plaintiffs would not suspect that he was related to David Gaubatz, who was known to Plaintiffs as a critic of the CAIR organizations. Id. ¶ 113. Defendants state that the decision to use an alias was David Gaubatz’s idea. Id. ¶ 131. Defendant Ye-rushalmi states that, as part of his responsibilities to provide legal advice regarding the CAIR Documentary Film Project, he advised David Gaubatz that there was no material legal risk to Chris Gaubatz using an alias if he (1) did not present false documentation, (2) did not accept payment or out-of-pocket expenses for his work, (3) conducted himself legally in performing his duties, and (4) had no intent to violate laws, breach agreements, or breach duties incumbent upon him. Id. ¶ 132.

Chris Gaubatz also sent an e-mail “resume” to Plaintiffs’ in-house counsel, Na-dhira Al-Khalili, which contained additional untrue information, namely that he was attending Ferrum College and that he had worked in a family-owned construction business. Id. ¶ 114. Defendants state that the CSP Defendants, SANE, and Ye-rushalmi were not aware that Chris had provided Plaintiffs this additional information. Id.

Pursuant to his agreement with CSP, David Gaubatz hired three additional researchers to pose as interns in Plaintiffs’ offices: Charity Zhe, Stephanie Creswell, Daniel Ryder. P51. David Gaubatz notified CSP of his intent to hire these researchers. Pis.’ Facts ¶ 52. David Gau-batz directed the researchers to appear Muslim as part of their internship, instructing Chris Gaubatz to grow a beard and identify himself as Muslim, id. ¶ 55, and directing Zhe and Creswell to wear hijabs — the traditional scarf worn by Muslim women to cover their hair, id. ¶ 58.

On or about June 16, 2008, Chris Gau-batz began his volunteer internship at Plaintiffs’ offices. Defs.’ Facts ¶ 85. Chris Gaubatz did not indicate to any staff member that he was wearing a button camera and recording video and audio during his internship. Pis.’ Facts ¶ 66. Over the course of his internship, Chris Gaubatz disseminated the covert recordings he made at Plaintiffs’ offices to David Gau-batz. Id. ¶ 86. Chris Gaubatz and David Gaubatz also disseminated the recordings made at Plaintiffs’ office to Defendants CSP and Christine Brim. Id. ¶ 87. In addition, Chris Gaubatz and David Gau-batz disseminated email summaries of Chris Gaubatz’s activities as an intern to Christine Brim pursuant to the CAIR Documentary Film Project. Id. ¶ 89.

The parties dispute the role of Christine Brim#in the CAIR Documentary Film Project. Defendants point out that at the start of the Project, Brim was a contract employee at Defendant CSP. Id. ¶ 177. In approximately August 2008, Brim became a full-time employee of CSP with the title of senior vice president. Id. Since approximately April 2010, Brim has served as chief operating officer of CSP. Id. Brim’s involvement with the CAIR Documentary Film Project as a contract employee, Defendants state, was limited to administrative work to coordinate the receipt of the audio-video recordings from the Gaubatz Defendants, to receive oral and written reports from David Gaubatz, and to be a liaison between David Gaubatz and Brim’s supervisors at CSP. Id. ¶ 178. Brim was not responsible for assessing the audio-video recordings or the daily reports. ' Rather, according to Defendants, her role was only to receive them, make certain that the audio-video files had recordings on them, and to make copies as needed by her supervisors. Id. ¶ 182. Plaintiffs dispute that this was Brim’s only role, pointing to David Gaubatz’s statement in his deposition that he was approached by Christine Brim and David Yerushalmi with a proposal to hire individuals to obtain audio video recordings from Plaintiffs’ offices. Pis.’ Facts ¶ 2 (citing Pis.’ Ex. 5 at 76:12-15). In addition, Plaintiffs note that Christine Brim disseminated a compilation of covert videos Chris Gau-batz took at Plaintiffs’ offices to third party Joseph Farah and representatives of World Net Daily. Defs.’ Facts ¶164, 165. At the very least, the parties do not dispute that Christine Brim knew that David Gaubatz’s researchers were going to make audio-video recordings at Plaintiffs’ offices. Pis.’ Facts ¶ 49.

CSP paid SANE a total of $103,865 in 2008 with the expectation that the money would go from SANE to David Gaubatz as compensation for his work obtaining audio/video recordings from Plaintiffs’ office. Id. ¶ 41. David Gaubatz understood that CSP was paying him to obtain audio/video recordings from inside Plaintiffs’ office. Id. ¶ 42. Pursuant to its agreement with David Gaubatz, CSP expected delivery of the recordings his researchers obtained from CAIR’s office. Id. ¶43. According to Defendants, sometime between August 21, 2008 and September 15, 2008, CSP entered into a contract directly with David Gaubatz to continue his services to produce field researchers to obtain B-roll from Plaintiffs’ Offices. Defs.’ Facts ¶ 55.

During Chris Gaubautz’s internship at Plaintiffs’ Offices, his direct supervisor was Raabia Wazir. Id. ¶ 86. Raabia Wazir was the CAIR-F employee responsible for overall supervision of interns. Id. ¶ 87. On his first formal day of his internship, Chris Gaubatz met with Wazir for orientation, id. ¶ 89, and she presented him with what she described as a confidentiality agreement for him to sign. Id. ¶ 90. When Chris Gaubatz asked if he should sign it then, Wazir told him to “read it on your own time.” Id. Chris Gaubatz states that he never read or signed the purported confidentiality agreement and Plaintiffs have not produce a signed version to contradict this statement. Id. ¶ 95.

Chris Gaubatz further states that he never orally agreed to be subject to any form of confidentiality. Id. Plaintiffs dispute this statement noting that Chris Gau-batz discussed a nondisclosure agreement in a recorded telephone conversation with a representative of World Net Daily, implying that he understood himself to be bound by a confidentiality agreement. Pis.’ Resp. Stmt. ¶ 95 (citing Pis.’ Ex. 37 (Recorded Telephone Conversation of Chris Gaubatz)). Aside from this confidentiality agreement, Plaintiffs do not dispute that no one at Plaintiffs’ offices provided Chris Gaubatz with a manual or written or oral set of rules, policies, or procedures relating to the existence of, or the treatment of confidential, proprietary, or personal information. Defs.’ Facts ¶ 100. Of the 24 volunteer interns'working at Plaintiffs’ offices during the time period relevant to this litigation, Plaintiffs could only produce 13 signed confidentiality agreements. Id. ¶¶ 103, 104.

The parties disagree as to whether Chris Gaubatz was ever explicitly provided confidential, proprietary, or private information during his internship at Plaintiffs’ office. Defendants state that at no time did Wazir or anyone at Plaintiffs’ offices ever inform Chris Gaubatz that he was being provided confidential, proprietary, or private information. Id. ¶ 101. Plaintiffs state that Chris Gaubatz was given access to confidential, proprietary, and trade secret information about Plaintiffs by CAIR-F employees as part of his internship, specifically sensitive lists of mosque contacts, as well as access to information about CAIR’s legislative advocacy strategies and its personnel. Pis.’ Facts ¶¶ 73-75. Plaintiffs also state that Chris Gau-batz recorded CAIR discussions about sensitive and confidential matters with the button camera. Id. ¶ 105. As support for this position, Plaintiffs point to videos recorded by Chris Gaubatz which discuss plans for non-public meetings between members of Plaintiffs’ Executive Board with various imams and other mosque leaders in the region. Pis.’ Ex. 1 (Recorded Videos) at June 16, 2008, 2:38:59. In addition, the videos also discuss a mosque database containing research and contacts at local mosques. One of these videos records; another intern on the phone conducting a survey of a mosque as part of CAIR’s mosque survey research project. Id. at July 14, 2008, 35:00. At the close of the interview, he states “[t]his information is confidential and it will not be shared with anyone.” Id.

Regarding the role of the other Defendants in this matter, Defendants also state that based upon the information provided to them from David Gaubatz and from the audio-video recordings provided to CSP, the CSP Defendants, Yerushalmi, and SANE had no knowledge of any fiduciary duty owed to Plaintiffs by Chris Gaubatz. Defs.’ Facts ¶ 145. These Defendants further state that they did not have knowledge of any statutory, contractual, or common law duty of confidentiality or nondisclosure owed to Plaintiffs by Chris Gau-batz. Id ¶ 144. In response, Plaintiffs state and Defendants do not dispute that CSP knew that Chris Gaubatz’s duties at Plaintiffs’ offices were “no different from any other intern,” and that Chris Gaubatz was instructed to, and did, follow instructions from staff during his internship. Pis.’ Facts ¶ 71.

Apparently in his capacity as CSP’s General Counsel, Defendant Yerushalmi provided legal advice to David Gaubatz regarding various aspects of the CAIR Documentary Film Project. Defs.’ Facts ¶ 130. Yerushalmi knew that Chris Gau-batz was wearing an inconspicuous device to make audio-video recordings at CAIR. Pis.’ Facts ¶ 48. Yerushalmi states that he advised David Gaubatz as to whether information identified by Chris Gaubatz at Plaintiffs’ offices amounted to evidence of tax fraud by Plaintiffs. Defs.’ Facts ¶ 136. Yerushalmi also states that he advised David Gaubatz that Chris Gaubatz should not remove documents from a network, shared server or e-mail server. Id. ¶ 137.

Defendants state that' Chris Gaubatz never recorded conversations that took place behind closed doors. Id. ¶ 154. Defendants also state that Chris Gaubatz was physically and visually present and a party to all conversations he recorded at Plaintiffs’ offices. Id. ¶ 162. Plaintiffs disagree, pointing to videos in which Chris Gaubatz used his button camera to record conversations at CAIR in which he was not participating or was not visible to the speakers. Pis.’ Facts ¶ 81. For example, in a section of the recording made on August 7, 2008, Chris Gaubatz appears to stand behind a speaker apparently involved in a telephone conversation. See PL’s Ex. 1 at August 7, 2008, 01:21:40-01:22:05. This speaker has his back turned to Chris Gaubatz. Defendants state that in all the recorded conversations, Chris Gaubatz was standing nearby, in plain sight, and the conversations were taking place such that Chris and others could hear the conversation. Defs.’ Resp. Stmt. ¶81. Defendants also note that none of the remaining Defendants had an expectation that Chris Gaubatz would not be present and a party to the conversations recorded. Defs.’ Facts ¶ 163.

At various points during his internship, Chris Gaubatz was asked to shred documents by Wazir. Id. ¶ 155. Defendants state that Chris Gaubatz did not take any documents from locations in Plaintiffs’ offices to which he was not given open and unfettered access and authority. Id. ¶ 156. Defendants state that Chris Gaubatz never removed documents from a shared drive or e-mail server. Id. ¶ 154. Plaintiffs dispute this assertion, stating that based on their review, Chris Gaubatz removed documents that could have only come from shared folders on their network drive. Defs.’ Ex. A., Ex. 3 (Saylor Dep.) at 143:19-144:5. Defendants also point to evidence that the CAIR Documentary Film Project did not contemplate or require the taking of documents from Plaintiffs’ offices. Defs.’ Facts ¶ 166.

On or about September 3, 2008, upon the completion of his volunteer internship, Chris Gaubatz received a “Certificate of Completion” from “CAIR” for successfully fulfilling his duties as a volunteer intern. Id. ¶ 116. On February 9, 2009, after all field work had ended on the CAIR Documentary Film Project and after Chris Gau-batz had terminated his internship at Plaintiffs’ offices, CSP entered into a contract with Chris Gaubatz to review potential B-roll audio-video recordings he obtained from the CAIR MD/VA offices and Plaintiffs’ Offices, assess them, and log them in some coherent fashion. Id. ¶ 56. Christine Brim supervised Chris Gaubatz in this work. Id. ¶ 187.

B. Procedural Background

CAIR-AN filed its original Complaint on October 29, 2009, naming as Defendants Chris and David Gaubatz and ten John and Jane Does whose identities were then unknown but who were alleged to have participated in and benefitted from the activities alleged in the Complaint. See Compl., ECF No. [1], ¶¶ 12-14. CAIR-AN asserted a single claim under the Stored Communications Act and common law claims for conversion, breach of fiduciary duty, breach of contract, and trespass. See id. ¶¶ 49-77.

Contemporaneous with the filing of the Complaint, CAIR-AN moved for a temporary restraining order and a preliminary injunction. See Mem. in Supp. of Pl.’s Mot. for a TRO & Prelim. Inj., ECF No. [2-1]. On November 2, 2009, after repeated efforts to contact the Gaubatz Defendants proved fruitless, the Court held an ex parte hearing to address CAIR-AN’s request for a temporary restraining order. See Min. Entry (Nov. 2, 2009). On November 3, 2009, the Court granted in part and denied in part CAIR-AN’s motion for a temporary restraining order, temporarily prohibiting the Gaubatz Defendants from making certain uses of materials obtained from Plaintiffs’ offices and requiring the return of such materials to CAIR-AN’s counsel. See Council on American-Islamic Relations v. Gaubatz, 667 F.Supp.2d 67 (D.D.C.2009) (“CAIR I”).

On November 19, 2009, CAIR-AN and the Gaubatz Defendants jointly moved for a consent order granting CAIR-AN’s motion for a preliminary injunction. See Joint Mot. to Enter Consent Order Granting Prelim. Inj., ECF No. [19]. That same day, the Court entered the proposed consent order. See Consent Order Granting Prelim. Inj., ECF No. [22], Pursuant to that order, the Gaubatz Defendants are (1) enjoined from making any use, disclosure, or publication of any document obtained from any office or facility of CAIR-AN, any recording of meetings of or conversations involving CAIR-AN’s officials or employees, and any copies of such documents or recordings, (2) required to remove from any website or blog under their control any such documents or recordings, and (3) required to return any such documents or recordings, including any copies, to CAIR-AN’s counsel. See id. ¶¶ 1-4. Subsequently, the Court clarified that its order permits the Gaubatz Defendants’ counsel, but not the Gaubatz Defendants themselves, to retain copies of the documents at issue for indexing purposes. See Order (Dec. 10, 2009), ECF No. [30], at 2. Absent further action from the Court, the preliminary injunction will remain in effect throughout this action. See Consent Order Granting Prelim. Inj., ECF No. [22], ¶ 5.

On December 20, 2009, Defendants Chris and David Gaubatz moved to dismiss the original Complaint. On March 1, 2010 and April 12, 2011, Plaintiffs moved to amend the Complaint. The Court resolved all these motions on June 24, 2011, granting in part and denying in part the Gau-batz Defendants’ motion to dismiss and granting both of Plaintiffs’ motion to amend. See Council on American-Islamic Relations Action Network, Inc. v. Gaubatz, 793 F.Supp.2d 311 (D.D.C.2011) (“CAIR II”). First, the Court granted Plaintiffs leave to amend the Complaint to (1) clarify that references to the “Council of American Islamic Relations” in the Complaint are to CAIR-AN, (2) add CAIR-F as a second plaintiff, (3) add CSP, Brim, Savit, and Pavlis as defendants, (4) assert statutory claims under the Federal Wiretap Act, the D.C, Wiretap Act, and common law claims for unjust enrichment and tortious interference with contract, and (5) introduce a handful of supplemental factual allegations in support of extant claims. See id. at 322-30. Second, the Court granted the Gaubatz Defendants’ motion to dismiss insofar as it sought dismissal of Plaintiffs’ claim for the conversion of electronic data (one component of Count Three of the Second Amended Complaint) and otherwise denied the motion, including insofar as it sought dismissal of Plaintiffs’ claim for the conversion of physical documents (the remainder of Count Three of the Second Amended Complaint). See id. at 330-45.

Subsequently, Defendants CSP, Brim, Savit, and Pavlis filed a Motion to Dismiss the Second Amended Complaint. See Mem. of P. & A. in Supp. of Mot. to Dismiss Counts I & II, ECF No. [97]. In addition, on March 5, 2012, Plaintiffs filed .another motion to amend their Complaint, seeding to add David Yerushalmi and SANE as Defendants. See Pls.’ Mot. for Leave to Pile Third Am. Compl. & Mem. in Supp. of Mot. for Leave to File Third Am. Compl., ECF No. [112]. The Court resolved all these motions on September 17, 2012, granting in part and denying in part the CSP Defendants’ motion to dismiss and granting in part and denying in part Plaintiffs’ motion to amend. See Council on Amencarir-Islamic Relations Action Network, Inc. v. Gaubatz, 891 F.Supp.2d 13 (D.D.C.2012) (“CAIR III”). The Court dismissed Count One of the Second Amended Complaint, based on the Federal and D.C. Wiretap Acts, insofar as Plaintiffs sought to hold liable the CSP Defendants (or any other Defendant) (1) under a theory of secondary liability, with respect to both the Federal and D.C. Wiretap Acts and (2) under a theory of procurement liability, with'respect to the Federal Wiretap Act. Id. at 23-26. The Court also dismissed Count Two of the Second Amended Complaint, based on the Stored Communications Act, (1) against the CSP Defendants (and any other Defendant) insofar as Plaintiffs relied on a theory of secondary liability and (2) against the CSP Defendants insofar as Plaintiffs relied on a theory of primary liability. Id. at 26-29. In all other respects, the motion was denied. Regarding Plaintiffs’ Motion to Amend, the Court denied the motion insofar as Plaintiffs sought to assert claims against either SANE or Yerushalmi (1) under the Federal Wiretap Act using a theory of procurement liability, (2) under the Federal or D.C. Wiretap Acts using a theory of secondary liability, and (3) under the Stored Communications Act using a theory of secondary liability. Id. at 35.

On May 19, 2013, after the parties completed discovery, Defendants filed their [154] Motion for Summary Judgment seeking dismissal of this lawsuit in its entirety. On the same date, Plaintiff CAIR-F filed its [156] Motion for Partial Summary Judgment, seeking a judgment in its favor on its claims under the Federal and D.C. Wiretap Acts and for breach of fiduciary duty. .

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party, must (a) cite to specific parts of the record— including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence — in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.Cir.2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact,” the district court may “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district ' court’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-mov-ant must “do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); “[i]f the evidence is merely color-able, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

III. DISCUSSION

A. Count I (Federal and D.C. Wiretap Act)

Plaintiffs bring Count One of the Third Amended Complaint under the Federal Wiretap Act (Title I of the ECPA), 18 U.S.C. §§ 2510-2522, and the D.C. Wiretap Act, D.C. Code §§ 23-541-23-556. TAC ¶¶ 79-88. Both statutes proscribe, among other conduct, the intentional interception of oral communications. See 18 U.S.C.’ § 2511(1)(a); D.C. Code § 23-542(a)(1). Of the various Defendants in this case, only one — Chris Gaubatz — is alleged to have directly intercepted oral communications. However, Plaintiffs also bring claims against the remaining Defendants under these statutes. These claims fall into four categories. First, Plaintiffs claim that the remaining Defendants are liable under 18 U.S.C. § 2511(1)(c)-(d), and the parallel District of Columbia provisions, D.C. Code § 23-542(a)(2)-(3), which prohibit the disclosure and use, respectively, of the contents of an intercepted communication. Second, Plaintiffs contend that the remaining Defendants “procured” Chris Gaubatz to intercept their communications in violation of D.C. Code § 23-542(a)(1). Third, Plaintiffs allege that the remaining Defendants are liable because they “conspired with” and “aided and abetted” Chris Gaubatz in intercepting oral communications of Plaintiffs’ employees. Finally, Plaintiffs seek to attribute any liability for Chris Gaubatz under 18 U.S.C. § 2511(1)(a) and D.C. Code § 23-542(a)(1) to the remaining Defendants under a theory of respondeat superior. The Court addresses each of these arguments, some of which have been discussed at length in prior opinions in this case.

1. Chris Gaubatz’s Primary Liability

Under 18 U.S.C. § 2511(1)(a) civil liability exists “[e]xcept as otherwise specifically provided in this chapter [against] any person who — (a) intentionally intercepts [or] endeavors to intercept ... any wire, oral, or electronic communication.” Similarly, D.C. Code § 23-542(a)(1) creates liability “[e]xcept as otherwise specifically provided in this subchapter, [against] any person who in the District of Columbia — (1) willfully intercepts [or] endeavors to intercept ... any wire or oral communication.” Here, Plaintiffs argue that Chris Gaubatz violated these provisions by intercepting the conversations of their employees. Pis.’ MSJ at 13-20.

As an initial matter, the Court must clarify which Plaintiffs conversations were allegedly intercepted, and which Plaintiff is properly asserting claims under the Federal Wiretap Act and the D.C. Wiretap Act. Apparently conceding arguments made by Defendants, see Defs.’ Opp’n at 5, Plaintiffs have stated that “[u]ndisputed evidence makes clear that all the employees present during Chris Gaubatz’s internship were CAIR-Foundation’s.” Pis.’ Reply at 4. They go on to state that “the evidence is clear: Chris Gaubatz never interacted with any CAIR-AN employee, volunteer or intern, because there were not any during his internship.” Id. Importantly, the civil liability provision of the Federal Wiretap Act states that “any person whose wire, oral, or electronic communication is intercepted ... in violation of this chapter may in a civil action recover from the person or entity ... which engaged in that violation.” 18 U.S.C. § 2520(a). Similarly, the D.C. Wiretap Act states that “[a]ny person whose wire or oral communication is intercepted ... in violation of this sub-chapter shall — (1) have a civil cause of action against any person who intercepts ... such communications.” D.C. Code § 23 — 554(a). Here, by Plaintiffs’ own admission, only communications of CAIR-F have been intercepted. Plaintiffs admit that CAIR-AN had no employees, and thus no conversations, which implies that no conversations could have been intercepted. Accordingly, Plaintiff CAIR-AN’s claims under the Federal Wiretap Act and the D.C. Wiretap Act are dismissed, and the remaining discussion of Count I will focus on CAIR-F’s claims under these provisions.

In arguing that CAIR-F’s claims against Chris Gaubatz should be dismissed, Defendants concede for purposes of this motion that all the intercepted communications were “oral communications” within the meaning of the statutes. See Defs.’ Opp’n at 32-33. However, Defendants argue dismissal of these claims is nevertheless appropriate because Chris Gaubatz’s interception of these communications is protected by the one-party consent rule, which functions as a defense to the wiretap provisions at issue here. Defs.’ MSJ at 30-34. Specifically, Congress has created an exception to criminal and civil liability for a private party “where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. § 2511(2)(d). Similarly, D.C. Code § 23-542(b)(3) states that “[i]t shall not be unlawful under this section for — (3) a person not acting under color of law to intercept a wire or oral communication, where such person is a party to the communication ... unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States, any State, or the District of Columbia, or for the purpose of committing any other injurious act.”

Here, the applicability of the one-party consent rule is in dispute. The parties disagree as to whether Chris Gaubatz was a party to all of the communications he intercepted. Defendants argue that Chris Gaubatz was a party to the intercepted communications because he was physically present and visible for all conversations he recorded at Plaintiffs’ offices, even if he did not engage in all of these conversations. Defs.’ MSJ at 30. Plaintiffs, by contrast, argue that Chris Gaubatz used his button camera to record conversations in which he was not participating, but merely standing near the speaker. Pis.’ MSJ at 14-15. Plaintiffs cite four instances in which Chris Gaubatz recorded conversations at CAIR in which he was not participating. Pis.’ Facts ¶ 81.

Other courts to consider the scope of the one-party consent rule have concluded that “a person whose presence is apparent in the midst of a communication is considered a party, whether or not that person actually participates verbally in the communication.” United States v. Brown, No. 10-100-BAJ-SCR, 2011 WL 576901, at *3 (M.D.La. Feb. 9, 2011). See also Grandbouche v. Adams, 529 F.Supp. 545, 548 (D.Col.1982) (noting lack of distinction between individual “speaking to a person” and “speaker who holds a conversation in the presence of a third party.”); Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir.2010) (finding “no support for the proposition that one must be invited to a conversation in order to be a party to it.”). By contrast, courts have expressed concern where the intercepting individual was unseen to those being intercepted. See Pitts Sales, Inc. v. King World Productions, Inc., 383 F.Supp.2d 1354, 1361 (S.D.Fla.2005) (“the instant case does not present a situation where a communication was intercepted by an unseen auditor.”); Smith v. Wunker, 356 F.Supp. 44, 46 (S.D.Ohio 1972) (noting, in discussion of section 2511(2)(d) exception, that “the concern of Congress was with the interception of private conversations by an unseen auditor”), overruled on other grounds, Boddie v. American Broadcasting Companies, Inc., 731 F.2d 333 (6th Cir.1984). Accordingly, in light of this precedent, while the interceptor need not actively participate in the conversation for the one-party consent rule to apply, at the very least, his or her presence must be apparent to those individuals whose conversation is being intercepted.

Having reviewed the videos cited by Plaintiff as instances in which Chris Gaubatz was not a party to the conversation, the Court finds that there is a genuine issue of material fact as to whether the one-party consent rule applies to all of these recordings. In a section of the recording made on August 7, 2008, Chris Gaubatz appears to stand behind a speaker apparently involved in a telephone conversation. See Pl.’s Ex. 1 at August 7, 2008, 01:21:40-01:22:05. This speaker has his back turned to Chris Gaubatz and it is not clear from the video or from any other facts in the record whether Chris Gau-batz’s presence would have been apparent to this speaker, or if Chris Gaubatz was instead acting as an “unseen auditor” to whom the one-party consent rule would not apply. Pitts Sales, Inc., 383 F.Supp.2d at 1361. Because resolution of this factual dispute would be inappropriate at the summary judgment stage, the Court will deny summary judgment as to both parties regarding Plaintiff CAIR-F’s claim that Chris Gaubatz violated the Federal and D.C. Wiretap Act.

Of course, this is just one recording. For the vast majority of the recordings, CAIR-F does not contest that Chris Gaubatz was a party to the conversation recorded. However, with respect to these remaining recordings, CAIR-F argues that the one-party consent rule does not apply because of Chris Gaubatz’s purpose in making these recordings. Pis.’ MSJ at 15. As noted, supra, pursuant to § 2511(2)(d), the one-party consent rule applies under the Federal Wiretap Act, “unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. § 2511(2)(d). Similarly, D.C. Code § 23-542(d)(3) provides that “[i]t shall not be unlawful under this section for — (3) a person not acting under color of law to intercept a wire or oral communication, where such person is a party to the communication ... unless 'such communication is intercepted for the purpose of committing any criminal or tor-tious act in violation of the Constitution or laws of the United States, any State, or the District of Columbia, or for the purpose of committing any other injurious act.”

Here, CAIR-F argues that Chris Gaubatz acted with a tortious purpose in intercepting their employees’ communications, rendering the one-party consent rule inapplicable. In order to prevail, CAIR-F must show “either (1) that the primary motivation, or (2) that a determinative factor in the actor’s motivation in intercepting the conversation was to commit” a criminal or tortious act. United States v. Dale, 991 F.2d 819, 841 (D.C.Cir.1993) (quoting United States v. Vest, 639 F.Supp. 899, 904 (D.Mass.1986), aff'd, 813 F.2d 477 (1st Cir.1987)). See also Sussman v. American Broadcasting Companies, Inc., 186 F.3d 1200, 1202-03 (9th Cir.1999) (“Under section 2511, the focus is not upon whether the interception itself violated another law; it is upon whether the purpose for the interception — its intended use — was criminal or tortious.”) (internal citation omitted).

CAIR-F primarily argues that Chris Gaubatz intercepted the communications of CAIR-F’s employees for the purpose of committing a breach of fiduciary duty, a tortious act. Pis.’ MSJ at 14-15. This contention raises two questions: (1) whether Chris Gaubatz had a fiduciary duty to Plaintiff CAIR-F, and (2) whether the breach of this fiduciary duty was either the primary motivation for, or at least a determinative factor motivating‘Chris Gaubatz when he intercepted conversations at CAIR-F.

On the first question,, the Court concludes that there is a genuine issue of material fact as to whether Chris Gaubatz understood himself as bound to a fiduciary duty of non-disclosure to Plaintiff CAIR-F. “[T]he District of Columbia courts have deliberately left the definition of a ^fiduciary relationship’ open-ended, allowing the concept to fit a wide array of factual circumstances.” CAIR II, 793 F.Supp.2d at 341 (citing High v. McLean Fin. Corp., 659 F.Supp. 1561, 1568 (D.D.C.1987)). See also United Feature Syndicate, Inc. v. Miller Features Syndicate, Inc., 216 F.Supp.2d 198, 218 (S.D.N.Y.2002) (“[T]he exact limits of what constitutes a fiduciary relationship are impossible of statement.”) (quotation marks omitted). “Deciding whether a fiduciary relationship exists in a particular case requires ‘a searching inquiry into the nature of the relationship, the promises made, the type of services or advice given and the legitimate expectations of the parties.” CAIR II, 793 F.Supp.2d at 341 (quoting Firestone v. Firestone, 76 F.3d 1205, 1211 (D.C.Cir.1996)). Indeed, in its previous opinions, this Court emphasized that “[b]ecause the inquiry is fact-intensive, it is often inappropriate to decide whether a fiduciary relationship existed even in the context of a motion for summary judgment.” Id.

CAIR-F argues that Chris Gau-batz owed it a fiduciary duty primarily because he functioned in a position of trust, enjoying access to CAIR-F’s confidential, proprietary, and secret information, such that his relationship with CAIR-F and its employees “was grounded in a higher level of trust than is normally present between those involved in arm’s length business transactions.” Id. at 342. “Broadly stated, a fiduciary relationship is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another.... The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in, and relies upon, another.... ” Church of Scientology Intern. v. Eli Lilly & Co., 848 F.Supp. 1018, 1028 (D.D.C.1994) (quoting Schmidt v. Bishop, 779 F.Supp. 321, 325 (S.D.N.Y.1991). Here, evidence in the record could be read to suggest that Chris Gaubatz actively sought to gain the trust of his employers. See PL’s'Ex. 37 at 3:14-17 (“I did the whole, you know, convert kind of thing because I felt like with him all I did — he was — seemed more conservative and trusting of somebody that was already Muslim, so.”); id. at 5:10-13 (“I would literally work with them, they liked me, they trusted me, so I had access to everything when nobody was in there I would find things and photocopy them.”)- Furthermore, there is evidence that CAIR-F did repose a measure of trust in Chris Gaubatz based on his actions and representations. See Pl.’s Ex.. 37, 10:1-4 (“[B]ut the way we worked it out is they like me a lot and the work I’ve done for them, you know, for a lot of this — 80% of my time I really am, you know, working hard for them. So they, you know, I have to build that trust with them.”); id., 15:14-19 (“I mean, yeah, their security as far as letting people in and everything is pretty tight, but ... once you’re in with them, they don’t— they’re not looking at me [INDISCERNIBLE] suspicious or anything”)

Plaintiffs also argue that Chris owed CAIR-F a fiduciary duty as its agent. Pis.’ Opp’n at 13. As other courts of this district have noted, “ ‘[u]nless otherwise agreed, an agent’ owes a fiduciary duty to his principal ‘to act solely for the benefit of the principal in all matters concerned with his agency.’ ” National R.R. Passenger Corp. v. Veolia Transp. Services, Inc., 791 F.Supp.2d 33, 46 (D.D.C.2011) (quoting Gross v. Akin, Gump, Strauss, Hauer & Feld, LLP, 599 F.Supp.2d 23, 32 (D.D.C.2009)). See also Restatement (Third) of Agency § 8.01 (2006). (“An agent has a fiduciary duty to act loyally for the principal’s benefit in all matters connected with the agency relationship”). Whether an agency relationship existed between Plaintiffs and Chris Gaubatz is a fact-intensive inquiry that “depends, in part, on (1) the selection and engagement of the [employee], (2) the payment of wages, (3) [Plaintiffs’] power to discharge [the employee], (4) [Plaintiffs’] power to control the [employees’] conduct, (5) and whether the work [or conduct at issue] is part of the regular business of the employer.” National R.R. Passenger Corp., 791 F.Supp.2d at 46 (quoting LeGrand v. Ins. Co. of N. Am., 241 A.2d 734, 735 (D.C.1968)). “The District of Columbia Court of Appeals has noted that when ‘the employer has the right to control or direct the servant,’ then an agency relationship will generally be found.” Id. (quoting Judah v. Reiner, 744 A.2d 1037, 1040 (D.C.2000)). “However, it is not the ‘actual exercise’ of control or supervision that is determinative, but merely ‘the right [of the employer] to control’ an employee that ‘is usually dispositive of whether there is an agency relationship.” Id. Here, because CAIR-F selected and controlled Chris Gaubatz in performing the regular work of their business, Plaintiffs argue that he functioned as their agent.

Defendants reject the existence of any fiduciary duty here, arguing that an unpaid intern with no written employment contract cannot rise to the level of a fiduciary. Defs.’ MSJ at 31. As support for this point, Defendants cite to Department of Labor guidánce materials which state that in order to avoid paying interns, employers must affirm that the interns provide them with no real value and that the internship experience is purely for the benefit of the intern. Id. at 31-32 (citing U.S. Dep’t of Labor, Wage & Hour Div., Fact Sheet # 1, available at http://www. dol.gov/whd/regs/compliance/whdfs71.htm). However, in CAIR II, the Court rejected the proposition that “a fiduciary relationship can never exist between an intern and the entity engaging the intern” and allowed Plaintiffs to engage in discovery as to whether the relationship between Chris Gaubatz and Plaintiffs “was grounded in a higher level of trust than is normally present between those involved in arm’s-length business transactions.” 793 F.Supp.2d at 341-42. In keeping with this ruling, and other decisions of this circuit, the Court focuses its analysis here on the specific facts of the relationship between Chris Gaubatz and CAIR-F, rather than broad generalizations about whether interns or individuals lacking employment contracts are or are not fiduciaries in all cases.

Defendants also argue that no fiduciary duty can exist here between Chris Gaubatz and CAIR-F because Chris Gau-batz did not understand himself to be an intern for CAIR-F. Defs.’ Opp’n at 6-12. Rather, Defendants state, Chris Gaubatz was unaware of the existence of any organization named CAIR-F and saw himself as interning for an organization (which apparently does not exist) named CAIR National. Accordingly, because Chris did not understand himself to be bound to CAIR-F, he could not be a fiduciary of this Plaintiff, either through a “trust” relationship or as CAIR-F’s agent. While the Court notes that the distinctions between the various CAIR organizations, and Plaintiffs’ carelessness in distinguishing between these organizations, are important for other facets of this case, see infra Section III.C, this is not one of those instances. The fact that Chris Gaubatz did not know the exact name of the organization he was interning for is not disposi-tive here. As discussed, supra, genuine issues of material fact exist as to whether, through their conduct during Chris Gau-batz’s internship, the employees of CAIR-F and Chris Gaubatz formed a relationship that “was grounded in a higher level of trust than is normally present between those involved in arm’s length business transactions.” CAIR II, 793 F.Supp.2d at 342. See also Church of Scientology, 848 F.Supp. at 1028 (“The existence of a fiduciary relationship would depend ori whether the parties, through the past history of the relationship and their conduct, had extended their relationship beyond the limits of the contractual obligations.”). Similarly, an agency relationship can be formed through conduct, rather than through express assent to a specific principal. See Restatement (Third) of Agency § 1.03. (“A person manifests assent or intention through written or spoken words or other conduct”) (emphasis added).

Failing in these arguments, Defendants concede that generally speaking a “trust” relationship may create a fiduciary relationship and that “control” may create an agency relationship. Defs.’ Opp’n at 13. However, they argue that the relationship here does not create the broad fiduciary duty of loyalty asserted by Plaintiffs. Defendants assert that, even if a fiduciary duty existed here, it would be limited to following the instructions of Plaintiffs’ employees. However, Defendants contend that this performance of tasks by Chris Gaubatz did not create a fiduciary duty of non-disclosure. , Accordingly, the crucial issue here is whether Chris Gaubatz was instructed or implicitly understood that the conversations and tasks at CAIR were covered by a duty of confidentiality or nondisclosure.

This issue — the scope of any fiduciary duty — also relates to the question of whether the breach of a fiduciary duty was the primary motivation for, or at least a determinative factor motivating Chris Gau-batz when he intercepted conversations at CAIR-F, the second prong of the tortious conduct exception to the one-party consent rule. See Dale, 991 F.2d at 841. " If Chris Gaubatz understood himself to be bound by a fiduciary duty of non-disclosure, then it appears obvious that the breach of this fiduciary duty was the primary motivation, or at least a motivating factor, in his interception of the communications at issue. No one disputes that Chris Gaubatz’s purpose in making these recordings was to provide them to individuals outside of CAIR. Such a purpose would be inconsistent with, and a breach of, any duty of non-disclosure Chris Gaubatz understood himself to be bound by. Accordingly, it seems fair to say that if he understood himself to be bound by a fiduciary duty of non-disclosure, Chris Gaubatz intercepted CAIR-F’s oral communications “for the purpose of committing” the tortious act of breaching this duty. Indeed, there is some evidence in the record ’to suggest he did act with this purpose or at least that it was a determinative factor. Specifically, the Court notes that Chris Gaubatz stated in a recorded telephone call that in entering Plaintiffs’ offices, he was looking for “first-hand, on the ground Intel”, Pl.’s Ex. 37, 8:22-9:1,