Karasov v. Caplan Law Firm, P.A.

          Jonathan A. Strauss, Lorenz F. Fett, Jr., Sonia Miller-Van Oort, and Robin W. Wolpert, Sapientia Law Group PLLC, for Plaintiff.

          Jon K. Iverson, Stephanie A. Angolkar, and Susan M. Tindal, Iverson Reuvers Condon, for Defendants Cities of Burnsville, Dayton, Roseville and Wayzata and individuals David Luchsinger, Richard Pietrzak, Dennis Mooney, and Timothy McCarthy.

          ORDER

          SUSAN RICHARD NELSON, United States District Judge

         This matter is before the Court on cross motions for summary judgment.^[1] Defendant Cities of Burnsville, Dayton, Roseville, and Wayzata and individual Defendants David Luchsinger, Richard Pietrzak, Dennis Mooney, and Timothy McCarthy (collectively, the “Moving Defendants”) filed a Motion for Summary Judgment (“Moving Defs.' Mot. for Summ. J.”) [Doc. No. 228].) Plaintiff Patricia Mae Kerr Karasov also filed a Motion for Partial Summary Judgment (“Pl.'s Mot. for Partial Summ. J.”) [Doc. No. 238] as to portions of her claims against the Moving Defendants. For the reasons set forth below, the Moving Defendants' Motion for Summary Judgment is granted in part and denied in part and Plaintiff's Motion for Partial Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         This suit stems from Plaintiff's allegations that the Moving Defendants improperly accessed her personal driver's license information in violation of the Driver's Privacy Protection Act (“DPPA”). On the parties' cross motions for summary judgment, the Court recounts the facts that are undisputed between the parties and notes where material disputes arise.

         A. Facts

         1. Plaintiff Patricia Mae Kerr Karasov

         Plaintiff Patricia Mae Kerr Karasov (“Karasov”) served as a Hennepin County District Court Judge from 1995 until 2013. (Aff. of Stephanie A. Angolkar (“First Angolkar Aff.”) [Doc. No. 231], Ex. 1 (“Karasov Dep.”) at 15^[2] [Doc. No. 231-1].) Prior to that time, she worked as an Assistant County Attorney for Hennepin County. (Id.) Between 2009 and 2010, Karasov was investigated by Minnesota's Board of Judicial Standards (the “Board”) for allegedly living outside of her judicial district, tax fraud, and refusal to cooperate with the investigation. (See id. at 16-20.) She believes the complaint against her was made public in October of 2010. (See id. at 16-17.) The Board held hearings on the complaint in January of 2011. (See id. at 110.) Local media covered this investigation and the ensuing hearings, but Karasov is not exactly sure when the coverage began. (Id. at 17, 47, 81.) None of the Moving Defendants were in involved with the investigation or hearings. (Id. at 110-11.)

         As a public figure, Karasov took certain steps to guard against personal information, like her home address, being publicly available. (See id. at 97-98.) However, in 2013, Karasov was notified by the Department of Natural Resources that one of its employees had used his law enforcement credentials to access Karasov's-and other women's-personal information in the Department of Vehicle Service's (“DVS”) database (“DVS Database”) for voyeuristic reasons. (Id. at 29, 50-51, 95-96.) Karasov was deeply concerned by this incident and decided to request an audit report showing the instances in which her DVS records were accessed. (Id. at 28-29.) That audit revealed that numerous other male law enforcement officers had accessed her personal driver's license information over the course of several years. (Id. at 96.) Learning about these accesses, for which Karasov could discern no legitimate purpose, caused her a great deal of anxiety about issues ranging from identity theft, to her professional reputation, to her personal safety. (See id. at 95-97, 108-09.) As she describes it, “all these people have guns and they know where I live. And I don't know who the outlier is. And that causes me anxiety. Causes me to feel distressed. And there is nothing I can do about it.” (Id. at 97.)

         2. Defendants Timothy McCarthy and the City of Wayzata

         Defendant Timothy McCarthy (“McCarthy”) is a police officer for Defendant City of Wayzata (“Wayzata”). (First Angolkar Aff., Ex. 2 (“McCarthy Dep.”) at 5 [Doc. No. 231-2].) In this capacity, McCarthy has access to and uses the DVS Database by virtue of a user name and password provided by Wayzata. (Id. at 17-19.) Prior to 2011, McCarthy knew he was supposed to use the DVS Database only for business-related purposes, yet admits to looking up friends, family members, and people in the media out of personal curiosity. (Id. at 23, 34, 42-43.)

         McCarthy knew Karasov because he worked with her during the time she was an Assistant County Attorney. (Id. at 12.) However, he cannot recall having any interactions with her since she became a judge in 1995. (Id. at 13.) He was not involved in the Board's investigation of Karasov. (Id. at 15.)

         On September 9, 2010, McCarthy accessed Karasov's personal information in the DVS Database. (Id. at 15-16; Aff. of Sonia Miller-Van Oort (“First Van Oort Aff.”) [Doc. No. 241], Ex. E (“DVS Database Audit Report”) at 1 [Doc. No. 241-5].) When questioned about the reason for accessing her information McCarthy explained as follows:

Q: Okay. When you got notice of the suit and saw that [Karasov] was the plaintiff did that refresh your recollection what you had accessed her information in the DVS database?

A: Not so much refreshed it. Probably - it probably - yeah, when I got it I'm probably thinking, well, I must have checked her for some reason and then I remember her legal stuff around that time.

Q: Okay. When you say her legal stuff, tell me what you're referring to.

A: Where her - she was in the newspaper about her address change and her address not being in Hennepin County.

Q: Did you access Judge Karasov's information when you did because you had seen her in the news?

A: I'm assuming yes, that's why. Because I don't sit and think about Judge Karasov on a daily basis.

Q: So what is it about what was in the news that made you curious to look at her information in the DVS database?

A: It's hard to say now. You know, when you look back and think, well, I was probably curious just to see maybe her picture, maybe to see a little more detail. I don't know.

Q: In any event, your best recollection is that your access of her didn't relate to any law enforcement task that you were doing?

A: Not that I can find. That's why I looked on my log to see if there was something that I was dealing with that day with her.

Q: And you didn't see anything?

A: No.

(McCarthy Dep. at 14-15.) There is no evidence in the record that Karasov was the subject of a Wayzata police investigation, was pulled over in a traffic stop in Wayzata, or had any contact with the Wayzata police department around this time that could explain McCarthy's access of her information.

         3. Defendants Dennis Mooney and the City of Roseville

         During the relevant period, Defendant Dennis Mooney (“Mooney”) was a police officer for Defendant City of Roseville (“Roseville”), but has since retired. (First Angolkar Aff., Ex. 3 (“Mooney Dep.”) at 9-10 [Doc. No. 231-3].) By virtue of his position as a police officer, Mooney had access to the DVS Database and used it to carry out some of his law enforcement duties. (See id. at 20-21.) Mooney understood that he was only to use the DVS Database for law enforcement reasons, not personal reasons. (Id. at 22-23.)

         Mooney does not know Karasov or her family. (Id. at 40, 46.) He does remember Karasov being in the news during the Board's investigation and believes that this was his only knowledge of her prior to this lawsuit. (See id. at 52, 58.) Mooney was not involved with the Board's investigation of Karasov. (Id. at 32-33.) He cannot recall any law enforcement need to access Karasov's information in the DVS Database. (Id. at 50- 51.)

         On October 13, 2010, Mooney accessed Karasov's personal information on the DVS Database. (Id. at 49; DVS Database Audit Report at 1.) Mooney does not remember why he accessed Karasov's information. (Mooney Dep. at 49-50.) There is no evidence in the record that Karasov was the subject of a Roseville police investigation, was pulled over in a traffic stop in Roseville, or had any contact with the Roseville police department around this time that could explain Mooney's access of her information.

         4. Defendants Richard Pietrzak and the City of Dayton

         Defendant Richard Pietrzak (“Pietrzak”) is currently retired, but during the relevant period served as chief of police for Defendant City of Dayton (“Dayton”). (First Angolkar Aff., Ex. 4 (“Pietrzak Dep.”) at 18 [Doc. No. 231-4].) Prior to serving in that role, Pietrzak held other law enforcement positions in Minnesota. (Id. at 18, 23-25.) As a police officer, including as Chief in Dayton, Pietrzak regularly used the DVS Database to carry out a variety of law enforcement functions. (Id. at 67-69, 81.) However, Pietrzak also looked up individuals in the database for personal reasons, like checking the driving records of his ex-wife and daughters, finding the Hennepin County Sheriff's address for a Christmas card, and looking up his deceased father. (Id. at 136-43.) Pietrzak claims he did not know that using the DVS Database for personal reasons was impermissible when he engaged in these accesses. (Id. at 143-46.)

         Pietrzak has no personal or professional relationship with Karasov. (Id. at 102.) He believes that he knows of her only through hearing about the Board's investigation in the news. (See id. at 100-03.) However, Pietrzak was not involved with that investigation. (See id. at 84-85.) Pietrzak is not aware of any contact between the Dayton police department and Karasov during his time as Chief. (Id. at 103-04.)

         On January 4 and 5, 2011, Pietrzak accessed Karasov's personal information on the DVS Database. (DVS Database Audit Report at 1.) He does not remember accessing this information or his reason for doing so. (Pietrzak Dep. at 201.) There is no evidence in the record that Karasov was the subject of a Dayton police investigation, was pulled over in a traffic stop in Dayton, or had any contact with the Dayton police department around this time that could explain Pietrzak's access of her information.

         5. Defendants David Luchsinger and the City of Burnsville

         Defendant David Luchsinger (“Luchsinger”) is a police officer for Defendant City of Burnsville (“Burnsville”). (First Angolkar Aff., Ex. 4 (“Luchsinger Dep.”) at 7, 9 [Doc. No. 231-5].) By virtue of his position as a police officer, Luchsinger had access to the DVS Database and used it to carry out some of his law enforcement duties. (Id. at 15-16.)

         Luchsinger does not know Karasov or her family personally. (Id. at 67-68, 70.) All he knows about Karasov is what he read and heard about the Board's investigation of her in the news. (Id. at 66-67.) However, Luchsinger was not involved with the Board's investigation of Karasov. (Id. at 65.)

         On January 5, 2011, Luchsinger accessed Karasov's personal information in the DVS Database. (DVS Database Audit Report at 2.) Luchsinger does not remember accessing Karasov's information on this occasion or his reason for doing so. (Luchsinger Dep. at 74-76.) He admits it is possible he accessed her information based on his curiosity after reading a newspaper article about the Board's investigation. (Id. at 76- 77.) Luchsinger is unaware of any law enforcement reason for his access of Karasov's information. (Id. at 77.) There is no evidence in the record that Karasov was the subject of a Burnsville police investigation, was pulled over in a traffic stop in Burnsville, or had any contact with the Burnsville police department around this time that could explain Luchsinger's access of her information.

         6. How the Audit Report Tracks Database Accesses

         The DVS Database tracks when an individual's information is accessed and, upon request, an audit report provides information about these accesses such as-the date and time the access occurred, the agency and specific user accessing the information, and the type of information viewed. (See DVS Database Audit Report; Aff. of Stephanie A.

         Angolkar in Opp. to Pl.'s Mot. for Partial Summ. J. (“Angolkar Aff. in Opp.”) [Doc. No. 244], Ex. 1 (“Jacobson Dep.”)^[3] at 152-53 [Doc. No. 244-1].) Law enforcement using the DVS Database can search for an individual in a variety of ways, including by name, driver's license number, or license plate number. (See Jacobson Dep. at 61-62, 138-39, 242.) Once an officer locates the individual's record within the database, he/she can make further “queries” or select various “tabs” depending on the particular information he/she wishes to view for that individual (e.g., photos, addresses, driving record, motor vehicle information, etc.) (Id. at 144-48, 150-51, 247.)

         Important here is how audit reports track and present accesses of information in the DVS Database. An officer's initial access of an individual's record appears as one “line” on the audit report. (Id. at 139-40, 245-46.) From the “main page” for that individual, the officer can then select a tab or run a query for particular information. (Id. at 144-45, 247-48.) If a query is made or a tab selected within the same minute of the initial access, it does not appear as an additional line on the audit report. (Id. at 145-46, 227-28, 255, 259-60.) As a result, any and all activity on an individual's DVS Database profile within a given minute is displayed as a single line on an audit report, regardless of how many tabs within the profile are selected. (Id. at 258-60.) However, if an officer views a particular tab of information from one minute to the next (e.g., 9:37am into 9:38am), or selects a new tab more than one minute after his/her last selection, this fact will be displayed as another line on the audit report.^[4] (See id. at 150-52, 247-48, 254- 55, 258-60.)

         The audit report for Karasov's DVS record shows two lines related to McCarthy's access on September 9, 2010. (DVS Database Audit Report at 1.) It shows one line related to Mooney's access on October 13, 2010. (Id.) The report shows five lines associated with Pietrzak's accesses-four lines related to the access on January 4, 2011 and one for the access on January 5, 2011. (Id.) Finally, the report shows one line related to Luchsinger's access on January 5, 2011. (Id. at 2.) The parties do not dispute how the audit report tracks and presents accesses of information within the database. However, as described below, they do dispute how this report should be used to calculate the number of DPPA violations-if the accesses were improper.

         B. Procedural History

         In May of 2014, Karasov brought suit against a variety of municipal entities (including Burnsville, Dayton, Roseville, and Wayzata) and John and Jane Doe defendants alleging that they violated the DPPA by accessing her driver's license information without a permissible purpose. (See Compl. [Doc. No. 1].) Initially, Karasov could not name specific individuals as defendants because the Department of Public Safety (“DPS”)-which oversees DVS-would not provide that information without a subpoena or court order. (Aff. of Sonia Miller-Van Oort in Opp. (“Van Oort Aff. in Opp.”) at ¶ 2 [Doc. No. 248].) Many of the Defendants Karasov did name immediately moved to dismiss her claims. (Id. at ¶ 3.) Karasov's counsel had attempted to engage in discovery to acquire the names of individual defendants in other DPPA cases with a similar posture, but “this was met with resistance.” (Id.) Based on this prior experience, Karasov's counsel did not attempt to discovery the names of individual Defendants until after the Court ruled on the motions to dismiss and the parties held their Rule 26(f) conference. (See id.)

         The Court granted in part and denied in part the motions to dismiss on January 8, 2015. (See Doc. No. 98.) That order was subsequently amended on February 3, 2015. (See Doc. No. 102.) Shortly thereafter, the parties held their Rule 26(f) conference wherein Karasov “clearly advised Defendants of [her] intention to amend her Complaint to add individual defendants after their identities were disclosed . . . .” (Van Oort Aff. in Opp. at ¶ 3.) Defendants did not object. (Id.) However, ...