Under the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U.S.C. §§ 2721–2725, it is illegal to obtain or use personal information in driving records for the purpose of bulk marketing or solicitations without the express consent of the individuals whose information is being used. The statute does contain a “litigation exception” that allows disclosure of personal information for “use in connection with any civil … proceeding,” including “investigation in anticipation of litigation” without the consent of the individuals whose information is used.
Yesterday, the Supreme Court granted review in Maracich v. Spears, No. 12-25, to consider whether the litigation exception in the DPPA allows lawyers to obtain protected personal information from driving records for the sole purpose of recruiting plaintiffs for litigation. Simply put, the question before the Supreme Court is whether such access for purposes of “marketing” or “litigation”?
The respondents in the Supreme Court case are South Carolina lawyers who sued local car dealers for allegedly charging improper fees. The lawyers used a “representative action” and before filing, they used the South Carolina Freedom of Information Act to obtain a Department of Motor Vehicles list of people who recently purchased new cars. The lawyers then sent solicitations to the purchasers of new cars to become plaintiffs in the lawsuit.
Following a challenge by some or the solicited car buyers that the plaintiff lawyers violated the DPPA, the South Carolina federal district court granted summary judgment for the lawyers. And the Fourth Circuit affirmed, finding that the solicitations were “inextricably intertwined” with the representative lawsuit originally filed. The Eleventh Circuit, Third Circuit and the District of Columbia Court of Appeals have ruled either that lawyers may not obtain protected driver information solely for the purpose of soliciting clients, or articulated a different test on when DPPA information obtained without consent may be used, creating a conflict in the application of the DPPA.
The Supreme Court is expected to hear the case in the Spring, following briefing this Fall.