Full opinion text
RULING ON PENDING MOTIONS DALY, District Judge. This case arose after the Connecticut State Police began a policy of automatically recording all calls made into and out of each State Police barracks in the State. The policy first received public attention in November 1989, leading to the filing of the several lawsuits consolidated in this action. The Court has certified a plaintiff class, composed of all persons who unknowingly made recorded calls into or out of State Police facilities between January 1, 1978 and November 9, 1989, as well as a subclass composed of current and former State Police employees who likewise participated in recorded communications in that period and who are not named as defendants. Plaintiffs and intervening plaintiffs claim that the recording of their conversations violated their constitutional and statutory rights under both federal and state law. The parties have conducted thorough discovery, and now file various dispositive motions. BACKGROUND A. Facts Except as noted, the parties agree on the following material facts. 1. Overview The Connecticut State Police is a Division of the Department of Public Safety, which, inter alia, provides police services to Bradley International Airport and the eighty-four towns in the State that do not have organized police departments. The Division is organized into three districts, each commanded by a District Major, and each district is divided into four troops, commanded by Troop Commanders holding captain’s rank. Each troop, in turn, operates through a barracks at which all administrative functions are performed. Defendant Lester J. Forst (Forst) commanded the Division during the period in question, and he held the title of Commissioner and was the agency’s sole political appointee. Defendant John Mulligan (Mulligan), the Executive Officer, acted as Forst’s second-in-command with the rank of lieutenant colonel from May 26, 1981 to November 1989. Beneath Forst and Mulligan in the chain of command were the District Majors, who in turn supervised the Troop Commanders. The State Police also operates a telecommunications unit, which from June 1978 to November 1989 was commanded by defendant Ronald P. Mikulka (Mikulka), who held the ranks of Lieutenant and Captain during this period. The telecommunications unit also employed Dominic Console (Console), a civilian employee responsible for the management of the Message Center at the State Police headquarters in Hartford and, later, all State Police telecommunications. 2. The Telephone Recording Systems The State Police first installed a recording machine on its telephone lines at the Message Center at Headquarters on April 24, 1972, and automatic taping systems were in place at each barracks by June 26, 1978. These recorders were intended to enable the State Police to record and, if necessary, play back incoming emergency calls from the public. This would occur, for example, if a dispatcher received a request for assistance in which an essential fact (e.g., a street address) remained unclear. The systems also were intended to assist in investigations of complaints made by the public against personnel, to establish the timing of complaints and responses for major investigations, and to provide a method of ensuring that troopers and dispatchers were handling calls properly. The recorders did not distinguish between incoming and outgoing calls. The State Police initially sought to record all telephone lines available to the public, and all radio communications, except for the Troop Commanders’ private lines and the lines used by confidential informants. Since the recorders had limited capacities, however, the Troop Commanders were authorized to determine the lines to be recorded in their respective barracks. The recorders operated automatically on designated lines, on which a caller would be placed by the computer in the Division’s “Horizon” telephone system. The recorders employed two recording tapes, one for continuous recording and one for any necessary rewinding and listening. State Police Special Order 91-A, issued in 1979, directed each barracks to change the two tapes on each machine every twenty-four hours, and to retain all tapes for sixty days before erasure and reuse. The pre-existing communications practices in the barracks affected the operations of the recording systems. Each barracks operated several local telephone lines to provide residents -within their respective jurisdictions with toll-free access. Prior to state-wide implementation of the “911” system in 1989, therefore, all requests for both emergency and non-emergency police services to a given barracks were made on regular seven-digit numbers, and these numbers continued to be used by callers after the “911” system was installed. Troopers, arrestees and others used these lines to place outgoing calls, while intra-departmental calls usually were placed on “Centrex” lines. The recorders were connected to the telephone lines of the relevant carriers, the Southern New England Telephone Company (SNET) and the Woodbury Telephone Company (Telephone Companies). The Telephone Companies did not supply the recorders, but instead connected the telephone lines to devices known as “demarcation punch blocks” at each barracks, which in turn were connected to the recorders. These devices, which were leased from the Telephone Companies, enabled the telephone system in each barracks to work equally well with or without the recorders running. The physical connection of individual lines at a punch block to a recorder in the barracks was not performed by the Telephone Companies, but was the responsibility of the State Police. In addition FCC regulations required the use of a coupler between the recorders and the telephone line, because the recorders were not FCC-approved. These couplers emitted beep tones at 15-second intervals, and the telephone lines could be recorded even if a coupler’s beep tone was not functioning. The 20-channel Dietalog recorders installed by the State Police in 1978 could not record all designated lines in all barracks. A May 1985 status report noted that many of these recorders were malfunctioning completely or were at various levels of function. The State Police decided to replace them, and received a budgetary allocation for five new Stancil recorders in 1986. These new recorders, each of which had a 40-channel taping capacity, were installed by the Division’s service company at Troops B, C, I, and W, and at the Headquarters Message Center. The Stanch recorders were FCC-approved and did not require couplers to be connected to the telephone lines. Instead, these machines had built-in beep tone generator chips. The Division directed its service company to remove these chips during April and May 1988. Another internal survey of the recording system, completed on February 23, 1988, determined that several of the older Dietalog recorders had ceased to function and that the remaining Dietalog recorders were at various levels of repair. The State Police decided to purchase eight new 40 channel Dietalog recorders to replace the older Dietalog recorders at Troops A, D, E, F, G, H, K, and L. As with all prior purchases of telephone recorders, these machines were obtained through the normal state bidding process, which required the publication of requests for bids in major state newspapers. As of November 9, 1989 only one of these new Dietalog recorders had been installed, at Troop A. This recorder had beep tones. Prior to December 1986 the State Police relied on the beep tones to notify State Police personnel and members of the public of the recording of telephone conversations. By 1986 some lines at various troops emitted beep tones but were not recorded, while some recorded lines did not have beep tones. Defendants further assert that the public was advised in local area telephone books that calls to police, fire and other emergency facilities could be recorded without the need for beep tones or permission of the caller. Defendants do not assert, however, that this notification applied to calls made from State Police facilities. Finally, defendants assert that all State Police personnel were on notice that all telephone fines were recorded because the recorders were located in the dispatch area or the sergeant’s office at each barracks, and thus were visible. In sum, it is undisputed that as of November 1989 Troops B, C, I, W and the Headquarters Message Center had functioning 40 channel Stancil recorders; Troop A had a functioning 40 channel Dictaphone recorder; Troop G had a functioning 20 channel Dicta-log recorder; Troops D, E, F, K and L had no functioning recorders; and Troop H had no functioning recorder, although several of its fines were being recorded at the Headquarters Message Center as of September 30, 1988. It was known by the State Police when these recording systems were installed, and at all subsequent times, that they recorded both incoming and outgoing calls; that they recorded specific telephone fines (onto which calls from all telephone handsets were routed automatically) rather than specific telephone handsets; and that there existed no unrecorded fines dedicated for use by detainees, arrestees or suspects. The parties contest the degree to which the beep tones operated effectively to notify users that a given line was recorded, as well as the significance of notifications in telephone books or the visibility of the recorders themselves. 3. Recording Policy The Division’s recording policy was unclear from the start. After the recorders were installed Captain Mikulka, the Telecommunications Chief, required that all requests to change the fines recorded, or to change beep tones on fines, be in writing. In a June 26, 1978 dated memorandum Mikulka advised defendant Donald Nurse (Nurse), District Major for the Central District, of his position that all fines used by the public should be recorded except for the Centrex lines, the troop lieutenants’ private fines, and the informants’ lines. While Nurse did not respond, Mikulka did receive a June 30, 1978 dated response from defendant Walter J. Scholtz (Scholtz), District Major for the Eastern District. Scholtz agreed with Mikulka’s suggestions, and further advised Mikulka that Troop D’s recorded fines did not have a beep tone. Mikulka never sought or obtained confirmation from Forst, Mulligan or the other District Majors concerning the use of the recorders, and thus no recording policy was established following the recorders’ installation. Two events then occurred of particular relevance to the Division’s recording practice. First, on August 9, 1983 the Connecticut Supreme Court decided State v. Ferrell, 191 Conn. 37, 463 A.2d 573 (1983). Ferrell involved a murder conviction based, in part, on the testimony of two State Police troopers, who testified to inculpatory statements made by the defendant during two telephone conversations with his attorneys. Although both calls were recorded, the troopers based their testimony on the defendant’s side of the conversations, which they overheard because the telephone they offered him was in the barracks report room. The Connecticut Supreme Court reversed the conviction, finding that “the defendant’s attempt to exercise his right to consult with an attorney resulted in the interception by the authorities of the very sort of incriminating statement which the Miranda warnings seek to guard against,” and ruled that the admission of the statements violated the defendant’s due process rights. Ferrell, 191 Conn. at 43, 463 A.2d 573 (citing Conn. Const, art. I, § 8; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Malinski v. New York, 324 U.S. 401, 416, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945)). Mikulka read an article about the Ferrell decision in the Hartford Courant and asked Telecommunications Coordinator Console to provide an estimate of the cost of installing a separate unrecorded telephone line in each of the troops for use by arrestees. Mikulka then wrote a memorandum to Major Nurse on August 11, 1983, which stated: The attached article in the HTFD Courant (8/10/83) indicates that Police are obliged to provide a private telephone for accuseds [sic] to consult with their attorney. We should have a clear policy on this situation. If necessary we will arrange for the proper phone equipment. There are several options available. The simplest would be to provide a separate phone set with a local line that could be kept in the interrogation room and jacked in when needed. Based on 13 troops, the cost would be $260 per month and $1300 installation. Pltfs’ exh. 22. Mikulka received no response to this memorandum, and he took no further steps to determine whether the State Police were recording attorney-client telephone calls. Indeed, at no time prior to November 1989 did the State Police enunciate a formal policy to assure an arrestee was provided access to an unrecorded telephone line. Second, in 1984 Commissioner Forst requested the Connecticut Attorney General to give an opinion as to the legality of intercepting wire and oral communications in a hostage or terrorist situation which poses a clear and present danger to the lives of troopers and citizens. The Attorney General responded to this request in a March 24, 1986 dated opinion letter, which stated: “we conclude that you may not intercept wire communications even in these circumstances without a warrant.” See Pltfs’ exh. 26. On December 3, 1986, after the purchase but prior to the installation of the five new Stancil recorders, Console sent a memorandum requesting advice on recording policy to defendant Henry Bourgeois' (Bourgeois), then a lieutenant and the commanding officer of the Message Center at headquarters. Bourgeois passed Console’s memorandum to Mikulka for a reply, and Mikulka raised the issue with the district majors and other top officials at the weekly staff meeting on December 10, 1986. Specifically, Mikulka recommended that all incoming lines used by the public be recorded, that the administrative Centrex lines not be recorded, and that all recorded lines emit a beep tone. This latter issue received attention because there had been complaints that the beep tones interfered with the audibility of important conversations, and it was believed that the beep tones were not needed so long as at least one of the parties to the conversation was on notice that it was being recorded. The participants discussed replacing the beeps with warning labels on all recorded lines, but no formal decision was made at this meeting. Mulligan subsequently decided that both incoming and outgoing telephone lines should be recorded, with the exception of the troop commander’s private line and the informant’s lines. Mulligan also decided that the beep tones should be removed on all recorders and replaced by warning labels. Mulligan informed Mikulka of these decisions, and Mikulka in turn drafted a memorandum to Bourgeois and Console directing that this policy be implemented. No Headquarters Special Order was distributed notifying State Police employees of this change of policy. Mikulka directed Bourgeois to order the warning labels shortly after the December 10, 1986 meeting. The exact specifications for the labels were not finalized and the labels were not ordered until March 23,1987, and were not shipped until April 10, 1987. Although the labels were distributed, the parties disagree whether the beep tones were removed prior to the installation of the labels, and plaintiffs further contend that some barracks never installed the warning labels and that those that did were not conscientious about replacing worn or removed labels. Subsequent to December 10, 1986 only the personnel at Troop H were notified in writing of the removal of the beep tones, through a “read and sign” memorandum posted by the Troop Commander on April 24, 1989. In January, 1988, the State Police published a new Administrative and Operations Manual (Operations Manual). It assembled into one volume all Headquarters Special Orders, General Orders, and Rules and Regulations. Section 15.1.10 of the Operations Manual provided: Dictalog recording machines are assigned to all troops and the Headquarters Communications Section to record all radio and telephone conversations transmitted or received at the Troops and Headquarters Communications Section. Section 15.1.10 constituted the first formal written order available to personnel concerning the State Police recording policy. This section did not state any guidelines covering the use of beep tones, warning labels, or other notification or consent procedures, and the Operations Manual also established no policy governing the recording of calls made by arrestees to their attorneys. 4. How Tapes Were Reviewed Tapes of conversations recorded at the barracks were reviewed in three circumstances. First, operators and other personnel could rewind and listen to tapes as needed in emergency situations, such as a call requesting help in which an address was unclear. Second, the tapes also were used for specific internal affairs investigations in cases of alleged employee misconduct. In this context some internal investigations led to the monitoring of employees’ conversations prior to the initiation of an official internal affairs investigation. Third, a separate Inspections Unit reviewed tapes for administrative purposes. The Inspections Unit generally took tapes from the barracks to a separate location, usually headquarters, and spent a full day reviewing them. This Unit reported directly to Colonel Mulligan. All internal investigations or inspections required a trooper to search for a conversation on a particular tape by listening to the entire tape until the specific conversation was identified. If information obtained in a tape recording was relevant to an internal affairs investigation, the tape could be used against the employee in departmental hearings. 5. Public Discovery of the Recording Robert Little was arrested by the State Police on August 5, 1988, after a motor vehicle accident, and was brought to Troop A in Southbury. Following his arrest Little made two calls to his attorney and two calls to relatives to arrange his release. During a pre-trial hearing on November 3, 1989, questioning by Little’s attorney of a State Police trooper revealed that all four of Little’s calls had been recorded without his consent and without prior notification. No warning labels existed in the barracks or on the telephones themselves, there was no audible beep tone on the line Little used, and Little was neither advised of the recording nor told that he could have access to an unrecorded line. See Pltfs’ exh. 24 (Testimony of Trooper Maryann Daley in State v. Little, CR4156380, MV4-298174, at 2, 61-63, 286 (Nov. 3, 1989)). Media coverage of the Little case caused an uproar. Governor William O’Neill asked for and received Commissioner Forst’s immediate resignation on November 12, 1989, and the new Commissioner of Public Safety, Bernard R. Sullivan, demoted Colonel Mulligan, who subsequently also resigned. Governor O’Neill also ordered an investigation of the recording practices of the State Police, and the Governor’s Review Committee Report was issued on November 29, 1989. See Pltfs’ exh. 7. B. Procedural History This action began on November 9, 1989 with the filing of Connecticut Criminal Defense Lawyers Association v. Lester J. Forst, Civ. No. B-89-606 (TFGD). The Court, on January 16, 1990, granted a motion to intervene as party plaintiffs by the Connecticut State Police Union and Troopers David Phipps, Robert Kowalczyk and Martin White. Eight additional actions were then filed involving 187 individuals, and the Court consolidated the actions on June 7, 1990. Subsequent actions added various additional defendants and the State of Connecticut. On May 2, 1991, the Court granted defendants’ motion to dismiss in part, dismissing plaintiffs’ and intervening plaintiffs’ claims for monetary damages against the State and against the individual defendants in their official capacities, while preserving plaintiffs’ and intervening plaintiffs’ claims for injunctive relief against all defendants as well as their claims for monetary damages against the individual defendants in their individual capacities. On November 8, 1991 the Court granted motions for class certification and certified a class of the following individuals: All persons who participated in wire or oral communications to, from, or within State Police facilities between January 1, 1974 and November 9,1989 whose communications were intercepted, recorded and/or used by the defendants in violation of the law. The Court further defined a subclass composed of the following individuals: The Connecticut State Police Union, current and former Connecticut State Police officers who are not defendants in this or any consolidated case, and other persons acting on behalf of the State Police who participated in wire or oral communications to, from, or within State Police facilities between January 1, 1974 and November 9, 1989 whose communications were intercepted, recorded and/or used by the defendants in violation of the law. By Order filed December 26,1991, the Court amended the onset date of the class and subclass from January 1, 1974 to January 1, 1978. Plaintiffs then gave public notice of the consolidated class action in accordance with the Court’s June 8, 1992 and July 8, 1992 filed Orders. Plaintiffs’ Third Amended Complaint summarizes the facts discussed above, and asserts the following legal claims: interception of wire and oral communications in violation of the Federal Communication Act of 1934, 47 U.S.C. § 605 et seq., and the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2510 et seq. (Count I); various violations of plaintiffs’ rights under the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 (Count II); various violations of plaintiffs’ rights under Article I, Sections 2, 4, 5, 7, 8, 9, 10, 11, 14, 19, and 20 of the Connecticut Constitution and the statutes and laws of Connecticut (Count III); fraudulent concealment of the recording of plaintiffs’ eonversations, resulting in the delay of discovery of the recording until November 1989 (Count IV); invasion of plaintiffs’ right of privacy, as guaranteed under the federal and state constitutions and Connecticut common law (Count V); and indemnification of the individual defendants by the State of Connecticut (Count VI). The Amended Complaint requests compensatory and punitive damages and attorneys’ fees from the individual defendants in their individual capacities, as well as an injunction prohibiting the individual defendants and the State of Connecticut from continuing to conduct unauthorized recording or from disclosing or destroying any existing tape recordings or other evidence of recorded conversations without a court order. Now before the Court, after the close of a lengthy discovery period, are motions seeking to dispose of all of the above claims. Several individual defendants move for summary judgment on all counts of both plaintiffs’ and intervening plaintiffs’ Third Amended Complaints. The State of Connecticut does not join in that motion, as it remains a defendant only for the purposes of injunctive and declaratory relief, and instead moves to dismiss plaintiffs’ request for a judgment declaring the State’s responsibility to indemnify any damages assessed against the individual defendants. Plaintiffs, in turn, move for partial summary judgment in their favor on their claims under Title III and the Connecticut Wiretap Act for all conversations recorded between January 20, 1987 and November 9, 1989. Several individual plaintiffs also have filed separate motions. DISCUSSION I. Preliminary Issues A. Applicable Standard of Review Except as noted below, the Court reviews the parties’ motions under the familiar summary judgment standard. The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). This burden may be met by demonstrating that there is a lack of evidence to support the nonmoving party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party satisfies this initial burden, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). While the Court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. United States Fire Ins. Co., 804 F.2d 9,12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). Conclusory allegations in legal memoranda are not evidence, and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir.1983). Finally, the burden of demonstrating the absence of a genuine issue of fact does not shift when cross-motions are before the Court, as each motion must be judged on its own merits. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir.1988). B. Statute of Limitations Defendants first seek dismissal of all claims arising prior to November 9, 1987, on the ground that such claims are time-barred. Plaintiffs’ federal statutory claims are governed by the limitations period set forth in Title III, which requires a claimant to file an action within “two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.” 18 U.S.C. § 2520(e). Plaintiffs’ federal constitutional claims are governed by 42 U.S.C. § 1983, for which the Court must apply the general or residual hmitations statute of Connecticut. See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985). The length of the limitations period, and related questions of tolling and application, also are governed by state law. Id. at 266-67, 105 S.Ct. at 1941-42. Connecticut General Statutes § 52-584 establishes a two-year limitations period for negligence actions, and defendants argue it should apply here. Defendants rely on Mihalcik v. Lensink, 732 F.Supp. 299, 305 (D.Conn.1990), in which the Court applied section 52-584 to federal equal protection and due process claims asserted against the State by patients in state mental institutions. The Mihalcik case is an aberration. All other federal and state courts in Connecticut that have considered the question have construed section 52-577, not section 52-584, as the residual limitations statute applicable to civil rights actions. See, e.g., Orticelli v. Powers, 197 Conn. 9, 16, 495 A.2d 1023 (1985) (noting Conn.Gen.Stat. § 52-577 is “operative statute of limitations in a § 1983 action”); see also Williams v. Walsh, 558 F.2d 667, 670-71 (2d Cir.1977); Brown v. Wargo, 815 F.Supp. 59, 60 (D.Conn.1992); Mitchell v. Hartford, 674 F.Supp. 60, 62-63 n. 2 (D.Conn.1986); Vitale v. Nuzzo, 674 F.Supp. 402, 404 (D.Conn.1986); Weber v. Arriendola, 635 F.Supp. 1527, 1531 (D.Conn.1985); Members of Bridgeport Housing Auth. Police Force v. Bridgeport, 85 F.R.D. 624, 637 (D.Conn.1980). Section 52-577 also governs plaintiffs’ claims pursuant to the Connecticut Constitution and state common law. See Orticelli, 197 Conn. at 16, 495 A.2d 1023. Plaintiffs’ claims under the State Wiretap Act, which contains no limitations period, likewise fall under section 52-577. Section 52-577 bars any claim filed more than three years after the date on which a plaintiff should have discovered the elements of the cause of action, see Sandstrom v. Chemlawn Corp., 759 F.Supp. 84, 86 n. 1 (D.Conn.1991); Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987), while Title III sets a two-year limitations period for federal wiretap claims. See 18 U.S.C. § 2520(e). Plaintiffs argue that, regardless of the statute of limitations applied, all claims arising during the class period are timely because the recording of their conversations was not discovered until November 1989, defendants fraudulently concealed their recording practices, and the recording constituted a continuing violation of constitutional and statutory law. Defendants contend, in response, that the installation of the recording system was not secret, that their use of the system was never concealed, and that plaintiffs were given notice of the recording through warnings in telephone books, the beep tones and the warning labels. Defendants also assert that the existence of the system was “common knowledge” in the State Police and among criminal defense attorneys, the courts, and the general public. It is difficult to square defendants’ claim of common knowledge with the furor following the publication of the disclosures in the Little case. Indeed, both Commissioner Forst and Colonel Mulligan asserted, in press interviews printed after the first of these consolidated cases was filed, that they had no knowledge of the extent of the recording in the State Police barracks. Likewise, there is considerable question whether the beep tones worked consistently, whether the warning labels were affixed to all telephones, and whether all employees of the State Police knew the recording systems taped both incoming and outgoing calls. In short, plaintiffs have established as a genuine issue whether any of the notification methods employed by defendants informed anyone that the State Police automatically recorded all outgoing as well as incoming calls. See Smith v. Nixon, 606 F.2d 1183, 1190-91 (D.C.Cir.1979), cert. denied, 453 U.S. 912, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Plaintiffs’ fraudulent concealment argument warrants additional comment. The doctrine of fraudulent concealment is an equitable one that tolls a statute of limitations until such time as a plaintiff discovers or reasonably should have discovered the cause of action. See Radiology Center, S.C. v. Stifel, Nicolaus & Co., 919 F.2d 1216, 1220 (7th Cir.1990). Central to the doctrine is discovery, and it applies where, as here, the defendants’ acts are self-concealing. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir.) (“a plaintiff may prove [fraudulent concealment] by showing either that the defendant took affirmative steps to prevent the plaintiffs discovery of his claim or injury or that the wrong itself was of such a nature as to be self-concealing”), cert. denied, 488 U.S. 848, 109 S.Ct. 128, 102 L.Ed.2d 101 (1988); see also Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1491 (D.C.Cir.1989). Further, the fraudulent concealment doctrine applies not just to a federal statute of limitations but to those state statutes of limitations that are adopted by federal law, see Riddell, 866 F.2d at 1491, as well as to state law claims. See Connell, 214 Conn. at 250, 571 A.2d 116; Bound Brook Assoc. v. Norwalk, 198 Conn. 660, 665, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986). Since it is the nature of telephone recording to be self-concealing, and since questions exist concerning the consistent use of either beep tones or warning labels, the fraudulent concealment doctrine also would render timely all of plaintiffs’ claims. See Brown v. American Broadcasting Co., 704 F.2d 1296, 1304 (4th Cir. 1983) (“Electronic surveillance is by its very nature a tort which is concealed from a potential plaintiff. Unless the defendant disclosed his activity to the plaintiff, or uses the information he obtains in a way which should put the plaintiff on notice of his activity, the tort may remain concealed.”); see also Smith v. Nixon, 606 F.2d 1183, 1191 (D.C.Cir.1979) (denying summary judgment on statute of limitations grounds where factual issue existed as to whether secrecy surrounding government’s wiretap prevented plaintiffs from discovering cause of action), cert. denied, 453 U.S. 912, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Awbrey v. Great Atlantic & Pacific Tea Co., 505 F.Supp. 604, 607-09 (N.D.Ga.1980). Accordingly, defendants’ statute of limitations argument is rejected. C. Standing Defendants also argue that the plaintiff Connecticut Criminal Defense Lawyers’ Association (CCDLA) lacks standing to pursue this action. CCDLA concedes that it cannot seek monetary damages, see Pltfs’ Joint Opp. at 82, and thus its claims for monetary damages are dismissed. CCDLA’s claims for injunctive and other equitable relief, on the facts of this case, meet the test for representational standing. See Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Worth v. Seldin, 422 U.S. 490, 515-16, 95 S.Ct. 2197, 2213-14, 45 L.Ed.2d 343 (1975). D. Standards for Immunity Defenses 1. Federal Law Central to defendants’ position in this action lies their argument that, to the extent plaintiffs seek monetary damages, defendants are protected by the doctrine of qualified immunity. The doctrine provides that “government officials performing discretionary functions[] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991). Government officials are “entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir.1994) (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 531-32 (2d Cir.1993)), cert. denied, — U.S. -, -, 115 S.Ct. 721, 722, 130 L.Ed.2d 627 (1995); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). The question of whether a particular right was “clearly established” at the time defendants acted, in turn, depends on “(1) whether the right in question was defined with ‘reasonable specificity’; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.” Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991) (citations omitted), cert. denied, 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992). The right allegedly violated also must have been clearly established in its particular application, rather than simply in general terms. See Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39. The specific violation alleged need not have been declared unlawful previously in a reported decision, however, if the contours of the right are “well-established;” that is, “in the light of pre-existing law the unlawfulness must be apparent.” Ayeni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). Once it is determined that a right was “clearly established” at the time of an alleged act, the inquiry turns to whether a reasonable official in defendants’ positions would have understood that the act would violate that right. Ayeni, 35 F.3d at 686; Oliveira, 23 F.3d at 648. The degree to which a right is clearly established affects the objective reasonableness of an official’s actions. Piesco v. New York, Dep’t of Personnel, 933 F.2d 1149, 1161 (2d Cir.1991), cert. denied, 502 U.S. 921, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991). Further, high ranking officials charged with applying and enforcing the laws are presumed to know the laws governing their conduct. See Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989). Because qualified immunity “is an immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original), the issue should be resolved “at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). The Court therefor^ 'roll consider defendants to be protected by qualified immunity “where the facts concerning the availability of the defense are undisputed,” Oliveira, 23 F.3d at 649, while keeping in mind that defendants bear the burden of establishing this affirmative defense. Bieluch v. Sullivan, 999 F.2d 666, 670 (2d Cir.1993). 2. State Law The individual defendants also assert that plaintiffs’ state law claims are barred by Connecticut General Statute § 4-165, which requires all negligence claims against the State to be presented first to the state claims commissioner. In the alternative, defendants contend that they are protected by qualified immunity under state law. Defendants’ exhaustion argument is without merit. While section 4-165 constitutes a legislated exception to the doctrine of sovereign immunity, see Sullivan v. State, 189 Conn. 550, 554-51, 457 A.2d 304 (1983), neither that statute nor the doctrine generally bars a claim asserting that a public official “act[ed] in excess of his statutory authority” by violating the Connecticut Constitution or a state statute. Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). Thus the doctrine of sovereign immunity does not shield the individual defendants from plaintiffs’ claims pursuant to the Connecticut Constitution or the State Wiretap Act. Further, the exhaustion requirement set forth in section 4-165 does not apply to intentional acts that are “wanton, reckless or malicious.” Conn.Gen.Stat. § 4-165. As plaintiffs’ state common law claim of invasion of privacy asserts an intentional tort, it falls under this exception. See Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983) (citing Restatement (Second) of Torts § 652B (“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man.”) (emphasis added)); see also Vorvis v. Southern New England, Tel. Co., 821 F.Supp. 851, 856 (D.Conn.1993); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982). Accordingly, none of plaintiffs’ state law claims are barred by the doctrine of sovereign immunity, nor was prior authorization by the state claims commissioner required. See Remine v. Deckers, 871 F.Supp. 1538, 1541-42 (D.Conn.1995); Tremblay v. Webster, 1995 WL 93405, *7, 1995 Conn.Super. LEXIS 516, *21-22 (Conn.Sup.Ct.1995) (“Since violating the plaintiffs’ civil rights [under federal and state law] cannot be considered to be in the troopers’ normal scope of their employment, and the language of the counts sounds in more than mere negligence, the [state] troopers cannot claim immunity under § 4-165.”). Defendants also maintain that they are protected by the doctrine of qualified immunity under Connecticut law. This contention raises a novel issue, in that the Connecticut Supreme Court has never described specifically the form of immunity applicable to employees of the State itself. Under the circumstances, therefore, the Court must do its best “in estimating what the state court would rule to be its law.” Holt v. Seversky Electronatom Corp., 452 F.2d 31, 34 (2d Cir.1971); see Continental Casualty Co. v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 105 (2d Cir.1991). The application of federal qualified immunity to federal law claims does not control the application of governmental immunity under state law. See Schnabel v. Tyler, 230 Conn. 735, 646 A.2d 152, 158 (1994); Mulligan v. Rioux, 229 Conn. 716, 643 A.2d 1226, 1235 n. 17 (1994). Rather, the analysis of governmental immunity under Connecticut law begins with the distinction between public and private duties: If the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages. Shore v. Stonington, 187 Conn. 147, 152, 444 A.2d 1379 (1982) (citations omitted); see also Gordon v. Bridgeport Housing Auth., 208 Conn. 161, 166, 544 A.2d 1185 (1988). Under this framework, a court first looks to determine whether the plaintiff alleges a public or a private duty. Plaintiffs here challenge defendants’ policy of recording automatically all telephone calls, and do not allege defendants targeted specific individuals for recording. Plaintiffs thus allege a violation of a public duty. Second, “if a public duty exists, an official can be liable only if the act complained of is a ministerial act or [if] one of the narrow exceptions to discretionary acts applies.” Gordon, 208 Conn. at 170, 544 A.2d 1185. A “ministerial act” is defined as “a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975); of. Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982) (“Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.”). Public officials can be found liable for the “negligent execution” of ministerial acts. Wright, 167 Conn. at 471, 356 A.2d 176. Since the defendants were under no prescribed duty to record their telephone lines, but instead possessed considerable discretion in determining the operation of their telecommunications system generally, the acts complained of were discretionary, not ministerial. The three exceptions to the immunity conferred on public officials performing discretionary acts are as follows: [F]irst, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989) (citations omitted). The second exception has no bearing on the facts of this case. Therefore, the Court’s analysis of defendants’ qualified immunity defense must determine whether plaintiffs’ state law claims establish acts “likely to subject an identifiable person to imminent harm” or acts “involving] malice, wantonness, or intent to injure.” See Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1, 3 (1994). The Connecticut Supreme Court has construed the former exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims, see id.; Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979), while the latter exception parallels the exception to sovereign immunity contained in section 4-165. Moreover, qualified immunity under Connecticut law does not serve as a defense to common law actions predicated on intentional torts. See Mulligan, 229 Conn. 716, 643 A.2d at 1232. In sum, neither the federal nor the state doctrines of qualified immunity are models of simplicity, and each requires a separate and distinct analysis. Federal qualified immunity requires defendants to demonstrate that their actions did not violate “clearly established” rights, or that their actions were objectively reasonable. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038-39. The Connecticut doctrine, in contrast, does not immunize a public employee from suit for actions based on malice, as unlike federal law Connecticut employs a subjective standard. See Mulligan, 229 Conn. 716, 643 A.2d at 1234; cf. Cartier v. Lussier, 955 F.2d 841, 843-44 (2d Cir.1992) (“[A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner.”) (quotation omitted). Rather, as applicable to this case, to establish the affirmative defense of immunity under Connecticut law defendants must demonstrate that their acts neither were “likely to subject an identifiable person to imminent harm” nor “involved malice, wantonness, or intent to injure.” Burns, 228 Conn. 640, 638 A.2d at 3. These standards will be applied to the various federal and state law claims asserted by plaintiffs. II. Constitutional Claims A. Federal Constitution Plaintiffs’ constitutional claims arise under 42 U.S.C. § 1983, which requires plaintiffs to establish that defendants are “persons” acting “under color of state law,” and that defendants deprived plaintiffs of a right or privilege secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981). Further, section 1983 liability may not be premised upon negligence, but requires an intentional act. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); see also City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989) (proof of “deliberate indifference” to need for training necessary to establish liability of municipality under § 1983). Thus, a defendant violates a plaintiffs constitutional rights within the meaning of section 1983 by directly participating in the infraction, by failing to remedy a wrong while acting in a supervisory capacity, by creating a policy or custom under which unconstitutional practices occurred, or by allowing such a policy or custom to continue. A supervisory official also may be personally liable “if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event.” Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted). The individual defendants held supervisory positions in the State Police, and plaintiffs allege that the policies they designed and implemented violated the “rights, privileges and immunities secured to the plaintiffs by the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution.” Pltfs’ Third Amended Complaint, Count II. The individual defendants do not contest that they acted under color of law and were personally involved in the recording practices alleged by plaintiffs. Rather, they contend that their recording practices did not violate any of plaintiffs’ constitutional rights. 1. First Amendment Defendants first argue that plaintiffs cannot establish a First Amendment claim, as their recording practices neither prevented plaintiffs from speaking nor targeted specific communications based on their content. See United States v. Bonfiglio, 713 F.2d 932, 938 (2d Cir.1983) (rejecting First Amendment claim based on warrantless playing of tape recording of protected speech on finding that police did not play tape for purpose of determining its contents). Plaintiffs do not contest these conclusions, but assert in response that defendants’ recording practices “chilled” the free exercise of their rights, thereby violating the First Amendment even in the absence of a direct prohibition on speech. See Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972) (“[C]onstitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.”) (citations omitted). For a claim alleging a “chilling effect” to be legally cognizable, a plaintiff must demonstrate that “he has sustained or is immediately in danger of sustaining a direct injury as the result of that action.” Id. at 13, 92 S.Ct. at 2325 (citing Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937)); see also Levin v. Harleston, 966 F.2d 85, 89 (2d Cir.1992). Plaintiffs point to two “chilling effects.” First, plaintiffs assert that any members of the plaintiff class or subclass who may have known or suspected that their conversations were being recorded, but who were compelled to utilize recorded lines because unrecorded lines were unavailable, were not at liberty to speak freely. See Spear v. West Hartford, 954 F.2d 63 (2nd Cir.1992); Davis v. Village Park II Realty Co., 578 F.2d 461 (2nd Cir.1978). Second, plaintiffs seek prospective injunctive relief restraining defendants from continuing to record private calls, and argue that to the extent they now have knowledge of defendants’ recording practices, their ability to exercise their free speech rights will again be chilled unless prospective injunctive relief is granted. Plaintiffs’ first argument is at odds with the factual position they have taken throughout this lawsuit: that the recording of then-telephone calls occurred without their knowledge. Plaintiffs also do not refute defendants’ contention that their recorders no longer tape outgoing calls, and in any case in passing the Recording Act in 1990 the Connecticut Legislature specifically prohibited the recording of telephone calls without notification. See supra note 40. Plaintiffs do not support either of their claims with evidence of a “specific present objective harm or a threat of specific future harm.” Laird, 408 U.S. at 14, 92 S.Ct. at 2326. In short, plaintiffs “rely on mere speculation or conjecture as to the true nature of the facts,” and thus fail to overcome defendants’ motion on these claims. See Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). 2. Fourth Amendment Defendants next take issue with plaintiffs’ claim that their recording practices violated plaintiffs’ Fourth Amendment rights. The applicability of such rights “depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy1 that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). The Fourth Amendment “protects people, not places,” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and its purpose “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). This inquiry raises two issues: whether the individual exhibited a subjective expectation of privacy, and whether that expectation is one which society is prepared to recognize as reasonable. See Smith, 442 U.S. at 740, 99 S.Ct. at 2580. The determination of reasonableness requires a balancing of the need for the search against the severity of the invasion of personal rights, and courts must weigh “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). This determination thus requires undertaking a case-by-case analysis. See United States v. Chuang, 897 F.2d 646, 649-50 (2d Cir.1990). Defendants first contest that plaintiffs subjectively expected their telephone calls to be private, given that plaintiffs made their calls from a barracks of the State Police. This argument is belied, however, by the fact that both Commissioner Forst and Colonel Mulligan disavowed any knowledge of the extent of the recording practices of the State Police. If those in charge of the State Police can claim no subjective knowledge of the recording of outgoing calls, it must be expected that plaintiffs do likewise. Defendants also argue that plaintiffs’ expectation of privacy was unreasonable. Defendants rely on People v. Canard, 257 Cal.App.2d 444, 65 Cal.Rptr. 15 (2d Dist.1967), cert. denied, 393 U.S. 912, 89 S.Ct. 231, 21 L.Ed.2d 198 (1968), in which the California Court of Appeals noted that “[i]t is common knowledge that special security precautions must be taken in police departments; those using the lines could reasonably expect that it could take the form of monitoring calls.” Id. at 464, 65 Cal.Rptr. 15. Canard involved the recording of calls with the consent of one of the participants, however, and the other cases on which defendants rely similarly depend on a finding of express or implied consent. See, e.g., United States v. Amen, 831 F.2d 373 (2d Cir.1987) (holding consent could be implied where prisoners received four forms of notification of recording on institutional telephones, and thus prisoners had no reasonable expectation of privacy in conversations on those phones), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). Rather, where no consent exists, and where conversations consist of privileged communications between clients and their attorneys, an expectation of privacy is reasonable. See Crooker v. United States Dept. of Justice, 497 F.Supp. 500, 504 (D.Conn.1980). The surreptitious recording of unprivileged but private calls, if proven, involves an invasion of privacy that far outweighs defendants’ proffered justifications. See Bell, 441 U.S. at 558, 99 S.Ct. at 1884. Ultimately, therefore, the determination of whether the plaintiffs’ expectations of privacy were reasonable depends on proof of the absence of notice, a question of fact precluding summary judgment on plaintiffs’ Fourth Amendment claims. See Chuang, 897 F.2d at 649-50 3. Fifth Amendment The essence of the privilege against self-incrimination, as protected by the Fifth Amendment, is “the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 1872, 68 L.Ed.2d 359 (1981) (quotation omitted). The privilege therefore “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Doe v. United States, 487 U.S. 201, 207, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988) (quoting Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966)). Finally, the privilege guarantees an arrestee the right to remain silent and to consult an attorney prior to any police interrogation. Miranda v. Arizona, 384 U.S. 436, 467-79, 86 S.Ct. 1602, 1624-31, 16 L.Ed.2d 694 (1966). Under Miranda an “interrogation” involves not only actual questioning initiated by police officers, but its “functional equivalent,” defined as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminar ting response from the suspect.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (emphasis added). Plaintiffs claim, based on the above principles, that defendants’ recording practices constituted a policy designed to elicit such incriminating responses. Defendants argue, in response, that the recorded calls were not compelled for purposes of the Fifth Amendment, and that even if compelled, the Fifth Amendment is not triggered unless the State sought to use the information. Plaintiffs have established that the State Police provided arrestees and detainees with access to a telephone to call an attorney, family member or friend concerning them arrest, and it remains to be proved whether troopers did so knowing that the call would be secretly recorded. Drawing this inference in plaintiffs’ favor, such recording would constitute the “functional equivalent” of interrogation because it would be known to be “reasonably likely to elicit an incriminating response.” Muniz, 496 U.S. at 601, 110 S.Ct. at 2650. Further, the Fifth Amendment privilege applies not only to evidence which would support a conviction, but to “information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.” Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975); Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir.1994) (“[W]e hold that use or derivative use of a compelled statement at any criminal proceeding against the declarant violates that person’s Fifth Amendment rights; use of the statement at trial is not required.”). Whether such evidence was ever induced through the recording of private calls, or was ever used derivatively in any criminal proceeding, are matters to be established at trial. 4. Sixth Amendment In general, the Sixth Amendment right to counsel attaches “only at or after the time that adversary judicial proceedings have been initiated against [an accused] ... by way of formal charge, preliminary hearing, indictment, information or arraignment.” United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quotation omitted). This right extends, however, to certain critical pretrial proceedings at which the “the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary or by both.” United States v. Ash, 413 U.S. 300, 310, 93 S.Ct. 2568, 2574, 37 L.Ed.2d 619 (1973); see also United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967). A critical stage is one “where the absence of defense counsel or lack of advice might derogate from the accused’s right to a fair trial.” United States v. Charria, 919 F.2d 842, 846 (2d Cir.1990). Finally, the Sixth Amendment protects the confidentiality of communications between an attorney and his or her client. See United States v. Noriega, 917 F.2d 1543, 1551 n. 9 (11th Cir.1990); United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir.1973) (“[T]he essence of the Sixth Amendment right [to counsel] is, indeed, privacy of communication with counsel.”); see also Greater Newburyport Clamshell Alliance v. Public Serv. Co., 838 F.2d 13, 21 (1st Cir.1988). This protection of attorney-client communications applies, however, only where the communication was intended to remain confidential, and under the circumstances was reasonably expected and understood to be confidential. Noriega, 917 F.2d at 1551. As with the Fifth Amendment privilege against sefi-incrimination, the above rights apply only to those members of the plaintiff class who were arrested or detained in anticipation of a more formal arrest. Defendants argue that these plaintiffs cannot claim the subject matter of their calls was meant to remain confidential, and that in any case any police intrusion caused by the recording was unintentional. As discussed above, however, a reasonable expectation of privacy might have existed. Moreover, defendants admit to taping all calls, to having no unrecorded lines available, and to directing arrestees to use recorded lines. Any resulting