By Robert J. Ambrogi, Legal Blog Watch
The question is probably not, "Will she?" but "When will she?"
On Friday, the FBI arrested 48-year-old Michael David Barrett and charged him with secretly taping ESPN sports reporter Erin Andrews in the nude and posting the videos on the Internet. Andrews' attorneys, Marshall B. Grossman and Daniel Alberstone of Bingham McCutchen, quickly issued a statement praising the FBI and the U.S. Attorney in Los Angeles for making the arrest -- and revealing that the Bingham attorneys and the private investigation firm Kroll Inc. played key roles in the investigation.
But Grossman was not so kind toward the hotel where the filming took place. He criticized management at the Nashville Marriott at Vanderbilt University for booking Barrett into the room adjacent to Andrews and questioned the hotel's attention to privacy and security. "One can't pass this off to simple ignorance," Grossman said.
Indeed, judging by the FBI's affidavit, the actions by the Marriott are inexcusable. The affidavit says that Barrett filmed all but one of the videos at the Marriott, with the other filmed at the Ramada Conference Center in Milwaukee.
What is most shocking is how Barrett was able to secure his room in the Marriott next to Andrews: He simply asked. The hotel's reservations computer showed his request as, "GST RQST TO RM NXT TO [Andrews]." To make matters worse, both rooms were situated in an alcove off the main hallway. That made it easier for Barrett to hack the peephole in a manner that allowed him to film inside.
In Milwaukee, Barrett allegedly called 14 hotels to find out where Andrews would be staying. When he found out she would be at the Radisson, he booked a room and hacked the peephole of Andrews' room in the same way he had done at the Marriott.
All of this adds up to a potential lawsuit, suggests John A. Day at the blog Day on Torts. Start with the question of how Barrett was able to identify Andrews' room, when "most hotels will not give anyone, even an alleged spouse, the room number of a guest." Add in the questions of how Barrett was able to secure a room right next door to Andrews and how he was able to modify the peephole without anyone noticing, and "one would think alarms would have been sounding at Marriott," Day says.
Hotels have a responsibility to make their premises reasonably safe for their guests. This includes the responsibility to exercise reasonable care to protect the privacy of their guests. As more of the facts are released for public consumption, we will learn if Marriott did what Erin Andrews had a right to expect.
Based on news reports, Marriott's only response so far has been a prepared statement that said, "The security and privacy of our guests is a priority." I suspect Andrews' attorneys at Bingham McCutchen will be looking for something more than that out of these two hotels.
Robert J. Ambrogi is a Massachusetts lawyer, writer and media consultant. He is author of the book, The Essential Guide to the Best (and Worst) Legal Sites on the Web. He also writes the blog Media Law, co-writes Legal Blog Watch and cohosts the legal affairs podcast Lawyer2Lawyer.