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Driver’s privacy lawsuits hit the wall

Mike Mosedale//September 29, 2016//

Driver’s privacy lawsuits hit the wall

Mike Mosedale//September 29, 2016//

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What do a former Mrs. Minnesota, a state lawmaker, and a passel of local media celebrities have in common?

They all filed privacy suits against a staggering number of Minnesota cities, counties, agencies, named police officers and John Does for abusing the state’s driver’s license database to snoop on them, allegedly without legitimate reason.

But all those plaintiffs, and many others, now have something else in common: They have seen their prospects for potentially lucrative settlements and damage awards slip away, as the federal courts have steadily chipped away at their claims with adverse rulings on statute of limitations, Rule 12 motions, and other challenges.

In September, the 8th Circuit, after consolidating 13 suits, affirmed the outright dismissal of all claims from the aforementioned former Mrs. Minnesota (Sarah Tichich), Republican state Rep. Steve Drazkowski, R-Mazeppa, veteran KSTP-TV reporter Jay Kolls, and six others.

The court also revived a few claims from the other four plaintiffs, although it’s questionable whether there is enough meat on the bone to sustain the litigation.

The rulings mark a stark shift in the legal landscape from just a few years ago, when former St. Paul cop Anne Marie Rasmusson secured a $1 million settlement over the improper accessing of her driver’s license data by some 145 police officers from 23 departments.

After that, municipalities across the state were swamped by similar lawsuits, all brought under the Driver’s Privacy Protection Act, a 1994 law that provides for $2,500 in damages for each improper accessing of an individual’s driver’s license data. That penalty, coupled with the widespread abuse of driver’s license databases, has led to some eye-popping claims for damages.

In July, Mille Lacs County signed off on a $1 million DPPA settlement in a class action brought on behalf of 269 people snooped on by a former county employee for unknown reasons.

Will that be the last of the mega settlements?

According to Jon Iverson, partner at Iverson Reuvers Condon, court rulings on key legal issues from both the district bench and the 8th Circuit have plaintiffs and their lawyers on their heels.

“These sorts of lawsuits are coming to a rapid conclusion,” said Iverson, who defends DPPA claims for the League of Minnesota Cities and worked on both the Mille Lacs County and Rasumusson settlements.

“There’s been only one new case filed this year. And in light of these rulings, we don’t anticipate a wave of new cases.”

To date, not a single DPPA suit has gone to trial, with the bulk of claims tossed before discovery as time-barred or for failure to state a plausible claim.

Iverson said there’s another explanation for the slowdown in the DPPA litigation. After the Rasmusson settlement and the revelations of widespread abuse of the driver’s license database, government agencies, nervous about the financial exposure, got more serious about training employees on permissible use of the Department of Public Safety’s driver’s license database.

While some DPPA claims are still being litigated, the stakes have been lowered considerably.

On Monday, U.S. District Court Judge Ann Montgomery issued an order in the DPPA case brought by Kelly Engebretson, a North Branch police officer who, in 2014, sued 40 known defendants, 50 unknown entities and some 500 John Does over the accessing of her data.

Since then, the claims have been steadily winnowed down, and Montgomery’s most recent order took the three named individual defendants — all police officers — off the hook. That leaves just three defendants — the cities of Bloomington, Coon Rapids and Mounds View.

Iverson, who is defending that suit, said he hopes to get those remaining counts tossed, too. “If you can’t sue the employee, you shouldn’t be able to sue the employer,” he said, adding that, either way, the Engebreston’s suit has essentially been reduced to a $7,500 claim.

Jonathan Strauss, Engebretson’s attorney, found a sliver of good news in Montgomery’s order, noting that it leaves the door open for the claims against the cities and counties.

“Both Judge Montgomery and Judge [Patrick] Schiltz have now ruled that there can be vicarious liability for municipal defendants, so that’s big,” said Strauss, an attorney at the Sapientia Law Group, the Minneapolis firm that pioneered DPPA litigation in Minnesota.

Still, Strauss acknowledged that plaintiffs who brought claims against John Doe defendants face a daunting challenge.

“All the courts, including Judge Montgomery and the 8th Circuit, have said the four-year statute of limitations occurs at the time of the access [of the driver’s license data], not when our clients learned about the access,” Strauss said.  “And even when our clients get their audits from the DPS [the Department of Public Safety], the DPS won’t produce the name of the individual who looked them up because, ironically, the DPS says that’s private information on the Data Practices Act, so our clients can only get that in discovery.”

Because of the court’s “strict reading of the federal rules,” Strauss added, the clock keeps ticking on the statute of limitations during discovery. As a consequence, by the time the plaintiff learns the identity of the John Doe, the claim is often time-barred.

In Strauss’ view, that lets the offending snoops off the hook too easily.

“Our clients should be allowed to hold [the snoops’] feet to the fire, not just the municipalities,” he said.

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