The Next Term: Opening DMV records to plaintiffs’ attorneys?

September 26, 2012

Looking ahead to SCOTUS

(Editor’s note: The Supreme Court will start to hear oral arguments for its 2012 term on October 1.  In preparation, we’ll be looking at major cases  that will be or may be before the Supreme Court throughout the month of September).

The first week’s post on the possible dischargeability of student loan debt in bankruptcy.

The second week’s post on the many cases involving same-sex rights currently being considered by the Supreme Court.

The third week’s post about warrantless, non-consensual DNA sampling by police.

All month, we’ve looked at cases that the Supreme Court could be hearing during its upcoming term.

I also repeatedly referenced the Supreme Court’s September 24 conference, which would be the first major opportunity for the Court to grant certiorari to any of those cases.

Well, the conference happened on Monday, and six cases were granted review.

Of the cases we’ve covered this month so far, only one made the list – which means that the rest will be decided upon later, not that they were denied.

That case is Missouri v. McNeely, which, if you read last week’s post about it, is probably not a good sign for individual rights under the Fourth and Fifth Amendment (but you can read the post for more on that).

We’ll perhaps come back to McNeely after oral arguments or an opinion is issued.

Until then, we have another case that we haven’t already looked at – one more directly relevant to lawyers – that also granted review: Maracich v. Spears.

Maracich is about 1994’s Driver’s Privacy Protection Act (DPPA), a federal law that prohibits the disclosure of driver’s license information without the consent of the information’s owner.

There is a list of exceptions (which can be found in section (b) of this statute), but only two are pertinent to Maracich.

The first is for use by a state actor, or a private actor on behalf of “a Federal, State, or local agency in carrying out its functions.”

The second is for litigation, including an “investigation in anticipation of litigation.”

Maracich arose after several attorneys, in 2006 and 2007, instituted several “group action” lawsuits in South Carolina state court against numerous car dealerships, alleging that certain dealerships had collected unlawful fees from car buyers.

The lawyers obtained information of thousands of car buyers from the state’s Department of Motor Vehicles (DMV), from which they identified potential plaintiffs in the group action lawsuits.

In 2009, some of these buyers began a class action lawsuit against the lawyers alleging that the attorneys violated the DPPA when they obtained and used the buyers’ personal information without their consent.

Side note: the lead counsel for the buyers in Maracich was also the lead defense counsel for several of the car dealerships in the “group action” lawsuits.  Purely coincidentally, I’m sure.

Anyhow, after many procedural exchanges, the trial court dismissed the buyers’ claims, finding that both of the abovementioned exceptions applied to the attorneys’ actions, since the information was used “in connection with [a] civil … proceeding,” and because their role in the group action lawsuit “was adequately analogous to that of a state attorney general.”

The buyers appealed, but the court of appeals affirmed.

As mentioned earlier, the Supreme Court has agreed to hear this case.

The case’s legal questions are larger in scope than the DPPA’s application in litigation against car dealerships.

Instead, Maracich‘s questions more broadly ask whether the DPPA prohibits attorneys from obtaining information to find clients to represent in a nascent lawsuit.

And what makes this case especially interesting is the fact that both the district and appeals courts held that these exceptions overrode specific statutory prohibitions on using the DMV information for solicitation.

If the Supreme Court affirms, it could open up DMV records to plaintiffs’ attorneys for all kinds of driving- and vehicle-related lawsuits.

An adverse Court ruling, however, could make such litigation far more difficult, since it would be markedly more difficult to obtain plaintiff information.

As with McNeely, we’ll know more about how the Court will rule once we hear oral arguments, so stay tuned!