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Garey v. James S. Farrin, P.C.

United States District Court, M.D. North Carolina

December 20, 2019

WILLIAM PARKER GAREY, et al., Plaintiffs,
v.
JAMES S. FARRIN, P.C., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE

         This case comes before the Court on the “Fox Defendants' Motion to Compel Against Plaintiffs” (Docket Entry 170) (the “Motion”).[1] For the reasons that follow, the Court will grant in part and deny in part the Motion.

         BACKGROUND

         Alleging violations of the Driver's Privacy Protection Act of 1994, 18 U.S.C. § 2721 et seq. (the “DPPA”), James Garey (“J. Garey”), William Garey (“W. Garey”), and Aaron Cruthis (collectively, the “Original Plaintiffs”) initiated a purported class action against a lawyer and various law firms. (See Docket Entry 1 (the “Complaint”) at 1-4.) Shortly thereafter, Original Plaintiffs filed an amended complaint, which (1) added Amanda Reilly, Adilah McNeil, Charlotte Clevenger (“C. Clevenger”), Andrew Clevenger (“A. Clevenger”), and Justin Brent Blakeslee (collectively with Original Plaintiffs, the “Plaintiffs”) as plaintiffs and (2) added various lawyers and law firms as defendants. (See Docket Entry 32 (the “Amended Complaint”) at 1-10.) The Amended Complaint alleges that “[e]ach [d]efendant knowingly obtained, disclosed and used one or more Plaintiff's protected personal information from a motor vehicle record for the purpose of marketing that [d]efendant's legal services” (id., ¶ 141) without “Plaintiffs' express consent as required by the DPPA” (id., ¶ 142).[2] The Amended Complaint seeks injunctive relief, attorney's fees, and $2, 500 in liquidated damages per Plaintiff “for each instance in which a [d]efendant knowingly obtained or used that Plaintiff's protected personal information” (id. at 36). (See id. at 35-36.)

         The defendants moved to dismiss the Amended Complaint. As relevant here, Fox Defendants' dismissal motion asserted that “Plaintiffs' theory would unconstitutionally restrict [Fox] Defendants' Protected ‘Commercial Speech' Interests.” (Docket Entry 60 at 2.) In support of this contention, Fox Defendants maintained that Plaintiffs' theory “violates well-established commercial speech precedent.” (Docket Entry 61 at 35.) More specifically, Fox Defendants argued that Plaintiffs' claim fails “th[e] intermediate-scrutiny test, ” under which “any prohibitions on . . . protected commercial speech must ‘directly advance a substantial governmental interest and [be] appropriately tailored to that purpose.'” (Id. (second set of brackets in original) (quoting Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 485 (1988) (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980))).)

         The Court (per United States District Judge Loretta C. Biggs) denied the defendants' various dismissal motions. (See generally Docket Entry 93 (the “Dismissal Opinion”).) In so doing, the Court rejected the defendants' arguments that Plaintiffs' interpretation of the DPPA constitutes “a content-based prohibition on commercial speech [that] fails to survive intermediate scrutiny.” (Id. at 22.) Fox Defendants subsequently sought reconsideration of the Dismissal Opinion, contending, inter alia, that it “misconstrued Central Hudson” (Docket Entry 111 at 4), which “set[s] forth a four-step ‘intermediate scrutiny' test to determine whether a regulation of commercial speech is consistent with the First Amendment” (id. at 3). Asserting that the Dismissal Opinion erred at step one of the Central Hudson test, Fox Defendants urged the Court to “continue[] with the Central Hudson analysis” and complete “steps two through four of the Central Hudson test.” (Id. at 4.)

         As requested, the Court reassessed its Central Hudson analysis. (Docket Entry 142 (the “Reconsideration Opinion”) at 6-9.) The Reconsideration Opinion explains that, “[i]n Central Hudson, the Supreme Court articulated [a] four-part intermediate scrutiny test to determine the constitutionality of restrictions on commercial speech.” (Id. at 8.) Under Central Hudson,

(1) to receive any First Amendment protection, commercial speech “must concern lawful activity and not be misleading”;
(2) the asserted government interest must be “substantial” to justify the restriction;
(3) the restriction must “directly advance[] the governmental interest asserted;” and
(4) the restriction must not be “more extensive than is necessary to serve that interest.”

(Id. (brackets in original) (quoting Central Hudson, 447 U.S. at 566).) Although “[t]he parties d[id] not appear to contest the first Central Hudson factor, ” the Court could not, “[i]n the absence of a developed record, . . . determine whether, as applied to [Fox] Defendants' alleged conduct, the DPPA satisfies the remaining Central Hudson factors.” (Id. at 9.) As such, the Court concluded that “Plaintiffs' claim [wa]s . . . not subject to dismissal, at th[at] time, on First Amendment grounds.” (Id.)

         In addition to seeking reconsideration of the Dismissal Opinion, Fox Defendants filed an Answer to the Amended Complaint. (See Docket Entry 97.) As relevant to the Motion, the Answer asserts the following defenses:

Second Defense
Plaintiffs and the putative class lack standing to bring the claim alleged. This defense is based on several independent grounds, including but not limited to, that the Plaintiffs did not suffer a cognizable injury-in-fact; that Plaintiffs did not suffer an injury that has been made actionable by Congress; that Plaintiffs' alleged injuries are not fairly traceable to the conduct of [Fox] Defendants because any alleged personal information had already been made public by the [law enforcement agencies (the “LEAs”)]; and that Plaintiffs' injuries are not redressable by this Court because any alleged personal information had already been made public by the LEAs.
Third Defense
The claims of Plaintiffs and the putative class are barred because imposing liability on [Fox] Defendants violates the First Amendment of the United States Constitution. This defense is based on several independent grounds, including but not limited to, that the DPPA should not be construed so as to create a constitutional question; that interpreting the DPPA to impose liability on [Fox] Defendants would not directly advance a substantial government interest; that [Fox] Defendants engaged in protected speech; and that [Fox] Defendants cannot be held liable for allegedly obtaining, using, and disclosing information that had already been made publicly available by the LEAs.
******
Fifth Defense
The claims of Plaintiffs and the putative class are barred because there can be no liability for obtaining, using, or disclosing information contained in public records.
Sixth Defense
The claims of Plaintiffs and the putative class are barred because [Fox] Defendants cannot be held liable for the obtaining, use, or disclosure of information previously publicly disclosed by a third party.

(Id. at 27-29 (emphasis in original).)

         Thereafter, Fox Defendants filed a “Joint Notice of Constitutional Challenge to Federal Statute” (Docket Entry 146) (the “Notice”), which states that certain of their defenses “raise the question of whether the DPPA violates the First Amendment” (id. at 1). In particular, the Notice maintains that the “[d]efendants' filings question whether the DPPA may discriminate between categories of private citizens, permitting the speech of some but not the speech of others.” (Id.) It further contends that the “filings also question whether the DPPA should be interpreted to prevent them from obtaining, using, and disclosing information that has previously been made public by the government.” (Id. at 1-2.)

         After the Reconsideration Opinion issued, the Court (per the undersigned United States Magistrate Judge) entered a Scheduling Order for this matter. (See Text Order dated Jan. 28, 2019.) The Scheduling Order imposed a discovery deadline of April 30, 2020. (See Docket Entry 151 at 2.) It also established a deadline for filing a motion for class certification of August 31, 2019 (see Id. at 3), which deadline, at the parties' request, the Court in July 2019 enlarged to October 30, 2019 (see Text Order dated July 6, 2019). Later that month, Fox Defendants filed the Motion, seeking to compel responses to multiple interrogatories (each, an “Interrogatory”), requests for production of documents (each, a “Document Request”), and requests for admission (each, an “Admission Request”). (See Docket Entries 170, 171.) In response, Plaintiffs revised certain of their discovery responses but opposed the Motion as to the remaining discovery requests.

         Plaintiffs subsequently moved to amend their Amended Complaint, explaining that “[t]he Second Amended Complaint would streamline the action in a number of ways.” (Docket Entry 176 (the “Amendment Motion”) at 3.) For instance, Plaintiffs maintained that the amendment would narrow the scope of the action by dropping two Plaintiffs with unique claims and adding two Plaintiffs with claims “similar to the remaining Plaintiffs.” (Id.) Plaintiffs also proposed to narrow the putative class from individuals “listed on a DMV-349 completed by any law enforcement officer in North Carolina, ” to individuals “listed on DMV-349 crash reports completed by a select group of [LEAs].” (Id.) Finally, Plaintiffs explained that,

[w]hereas the action [previously sought] liquidated damages as a result of Defendants' obtaining, disclosure, and use of Plaintiffs' personal information, the Second Amended Complaint seeks liquidated damages only for the [d]efendants' obtaining of Plaintiffs' personal information - a change which sidesteps any First Amendment defense since “the DPPA's limitation on obtaining personal information is not a restriction on speech at all . . . .” Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 949 (7th Cir. 2015) (emphasis added).

(Docket Entry 176 at 3 (emphasis and ellipsis in original).) After the defendants consented to the Amendment Motion (see Docket Entries 178, 179), and the Court granted Plaintiffs' amendment request (see Text Order dated Oct. 22, 2019), Plaintiffs filed a “Second Amended and Supplemental Complaint” (Docket Entry 180) (the “Second Amended Complaint”).

         Although the Amendment Motion envisioned limiting Plaintiffs' claim to obtaining Plaintiffs' personal information (see Docket Entry 176 at 3), the Second Amended Complaint does not adopt such a limited scope. Rather, it challenges the defendants' obtaining and using Plaintiffs' information. For instance, in its “Summary of the Action” (Docket Entry 180 at 2 (emphasis omitted)), the Second Amended Complaint alleges:

[The d]efendants in this case are lawyers and law firms that have systematically violated the DPPA by knowingly obtaining protected personal information from motor vehicle records, including drivers' licenses and vehicle registration cards, and then using that protected information for hundreds, or possibly thousands, of people in an effort to sell their legal services. This systematic abuse has continued even after the United States Supreme Court held, in 2013, that attorney solicitation is an improper use of DMV information.
Plaintiffs in this case are individuals whose protected personal information was improperly obtained and used by one or more of the [d]efendants in violation of the DPPA when [the d]efendants (a) obtained protected DMV information copied from their license or registration data onto accident reports and (b) used that information to send marketing letters. Plaintiffs file this case for themselves, and for others whose privacy was violated, to do two things: (1) ask the Court for an injunction to stop [the d]efendants from further abuse of personal DMV information; and, (2) to ask the Court to award damages as provided by Congress.

(Id. at 2-3 (emphasis added) (citation and footnote omitted).) The Second Amended Complaint further asserts that specific defendants used specific Plaintiffs' protected information for “addressing marketing materials . . . and mailing said materials.” (Id., ¶¶ 66-71.) It also argues that classwide “final injunctive relief or corresponding declaratory relief is appropriate” because “each [d]efendant has obtained and used the names and addresses of the members of their respective Subclasses, from motor vehicle records for marketing purposes” and “[e]ach [d]efendant either continues to so obtain and use names and addresses of persons involved in accidents or could resume obtaining and using such information at any time.” (Id., ¶ 145.)

         More specifically, according to the Second Amended Complaint:

120. Upon information and belief, at all relevant times [the d]efendants have knowingly obtained and reviewed information from DMV-349 reports that are obtained in bulk with the intent to determine the names and addresses of those who are not at fault for each accident; then, using those names and addresses, [the d]efendants only send marketing materials to those persons who do not appear to be at fault.
121. The mailings described above sent by [the d]efendants are form mailings. The mailing sent by each [d]efendant to a Plaintiff is identical in all material respects to the mailings that each [d]efendant regularly sends to persons whose personal information, including name and address, has been knowingly obtained from DMV-349 reports.
122. Upon information and belief, [the d]efendants sent, and in some cases continue to send, materials marked “This is an advertisement for legal services” only to persons whose names and addresses [the d]efendants knowingly obtained and gleaned from DMV-349 reports.
123. Plaintiffs did not consent to allow any [d]efendant to obtain their personal information from a motor vehicle record.
124. [The d]efendants regularly and knowingly have obtained, disclosed, and used (and some of them continue to knowingly obtain, disclose, and use) protected personal information, from motor vehicle records, to market their legal services to accident victims in the same manner that [the d]efendants knowingly obtained, disclosed, and used the protected personal information of Plaintiffs.
125. In sending the above-described mailings, [the d]efendants disclosed [Plaintiffs'] names and addresses in connection with the fact that [Plaintiffs] might need legal services. Said disclosures were made, at a minimum, to employees of the postal or delivery service that delivered each mailing, as well as to [the d]efendants' office staff or contractors who participate in addressing and sending the mailings.
126. As a proximate result of [the d]efendants' unlawful conduct as described above, each [Plaintiff] sustained actual damages in having their personal information from a motor vehicle record obtained by [the d]efendants for use for marketing purposes, in having to retrieve the mailings addressed to them from a delivery person, from his or her entryway or mail receptacle or by having his or her privacy invaded by disclosure of his or her name or address in connection with a potential need for legal services.
******
148. As specifically alleged above, [the d]efendants knowingly obtained the DPPA-protected personal information, including the name and address, of one or more Plaintiffs, from a motor vehicle record, and then used that personal information as described above.
149. Each [d]efendant knowingly obtained, disclosed, and used one or more Plaintiff's protected personal information, from a motor vehicle record, for the purpose of marketing that [d]efendant's legal services.
150. When each [d]efendant knowingly obtained, disclosed, and used one or more Plaintiff's protected personal information, said [d]efendant lacked Plaintiffs' express consent as required by the DPPA.
151. When each [d]efendant identified a Plaintiff as an accident victim, used a Plaintiff's name and address to create a mailing envelope and letter, and then sent his, her, or its above-described mailing containing the words “This is an advertisement for legal services” to one or more Plaintiffs, [the d]efendants knowingly used and disclosed said Plaintiff's personal information from a motor vehicle record.
152. [The d]efendants knowingly obtained, disclosed, and used Plaintiffs' personal information from a motor vehicle record for the purpose of marketing legal services.
153. Advertising for legal services for the solicitation of new potential clients is not a permissible purpose for obtaining motor vehicle records under the DPPA. Maracich v. Spears, [570 U.S. 48] (2013).
154. [The d]efendants knowingly obtained, disclosed, and used Plaintiffs' personal information, from a motor vehicle record, for a purpose not permitted under the DPPA, in violation of the DPPA.
155. Because some [d]efendants continue to regularly and knowingly obtain, disclose, and use personal information, from motor vehicle records, for purposes of marketing their ...

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