Remsburg v. Docusearch et al.

2002 DNH 090

Opinion

Remsburg v. Docusearch et a l . CV-00-211-B 04/25/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Helen Remsburg, Administrator of the Estate of Amy Lynn Bover

v. Civil No. 00-211-B Opinion NO. 2002 DNH 090 Docusearch, Inc., et al.

ORDER OF CERTIFICATION

Helen Remsburg, administrator of the estate of her daughter,

Amy Lynn Boyer, has sued defendants Docusearch, Inc., Wing and a

Prayer, Inc., Daniel Cohn, Kenneth Zeiss and Michele Gambino for

wrongful death; invasion of privacy through intrusion upon

seclusion; invasion of privacy through commercial appropriation

of private information; violation of the federal Fair Credit

Reporting Act, 15 U.S.C. §§ 1681a et seq.; and violation of the

New Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann. 358-

A:1 et seq. Defendants Docusearch, Inc., Wing and a Prayer,

Inc., Daniel Cohn and Kenneth Zeiss have filed motions for summary judgment. The material facts supporting the motions are

undisputed. The motions, however, raise important questions of

New Hampshire law that should be resolved by the New Hampshire

Supreme Court rather than a federal court. Thus, I certify the

following questions of law pursuant to New Hampshire Supreme

Court Rule 34:

(1) Under the common law of New Hampshire and in light of the undisputed facts presented by this case, does a private investigator or information broker who sells information to a client pertaining to a third party have a cognizable legal duty to that third party with respect to the sale of the information?

(2) If a private investigator or information broker obtains a person's social security number from a credit reporting agency as a part of a credit header without the person's knowledge or permission and sells the social security number to a client, does the individual whose social security number was sold have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information?

(3) When a private investigator or information broker obtains a person's work address by means of a pre- textual telephone call and sells the work address to a client, does the individual whose work address was deceitfully obtained have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information?

- 2 - (4) If a private investigator or information broker obtains a social security number from a credit reporting agency as a part of a credit header, or a work address by means of a pretextual telephone call, and then sells the information, does the individual whose social security number or work address was sold have a cause of action for commercial appropriation against the private investigator or information broker for damages caused by the sale of the information?

(5) If a private investigator or information broker obtains a person's work address by means of a pre­ textual telephone call, and then sells the information, is the private investigator or information broker liable under N.H. Rev. Stat. Ann. § 358-A to the person it deceived for damages caused by the sale of the information?

I. BACKGROUND

Docusearch, Inc. and Wing and a Prayer, Inc. ("WAAP")

jointly own and operate an internet-based investigation and

information service known as Docusearch.com.1 Daniel Cohn and

Kenneth Zeiss each own 50% of each company's stock. Cohn serves

as president of both companies and Zeiss serves as a director of

WAAP. Cohn is licensed as a private investigator by the State of

Florida and Palm Beach County Florida.

1 For the remaining purposes of this Order, WAAP and Docusearch, Inc. are indistinguishable. Therefore, I will refer to both companies, and the interactive website they operate, as "Docusearch."

- 3 - On July 2 9 , 1 9 9 9 ,New Hampshire resident Liam Youens contacted Docusearch through its internet website and requested

the date of birth for Amy Lynn Boyer, another New Hampshire

resident. Youens provided Docusearch his name. New Hampshire

address, and a contact telephone number, (603) 886-0184. He paid

the $20 fee by Mastercard. Zeiss placed a telephone call to

Youens in New Hampshire on the same day. Zeiss cannot recall the

reason for the phone call, but speculates that it was to verify

the order. The next day, July 30, 1999, Docusearch provided

Youens with the birth dates for several Amy Boyers, but none were

for the Amy Boyer that Youens had in mind. In response, Youens

emailed Docusearch and asked if it would be possible to get

better results using Boyer's home address, which he provided.

Youens then gave Docusearch a new contact phone number, (603)

889-8078 .

Later that same day, Youens again contacted Docusearch and

placed an order for Boyer's social security number, paying the

$45 fee by Mastercard. On August 2, 1999, Docusearch obtained

Boyer's social security number from a credit reporting agency as

- 4 - a part of a credit header2 and provided it to Youens. The next

day, Youens placed an order with Docusearch for Boyer's

employment information, paying the $109 fee by Mastercard. He

also provided Docusearch with the same contact phone number he

had provided originally, (603) 886-0184. Docusearch phone

records indicate that Zeiss placed a phone call to Youens on

August 6, 1999. The phone number used - (603) 889-8078 - was the

one Youens had provided with his follow-up inquiry regarding

Boyer's birth date. The phone call lasted for less than one

minute, and no record exists concerning its topic or whether

Zeiss was able to speak with Youens. On August 20, 1999, having

received no response to his latest request, Youens placed a

second request for Boyer's employment information, again paying

the $109 fee by Mastercard. On September 1, 1999, Docusearch

refunded Youens' first payment of $109 because its efforts to

fulfill his first request for Boyer's employment information had

failed.

2 A credit header includes the name, address, social security number and telephone number of a consumer and is typically provided at the top of a credit report. See Individual Reference Services Group v. F.T.C., 145 F. Supp.2d 6, 14 (D.D.C. 2001) (citing the sworn statement of the credit reporting agency involved in that litigation).

- 5 - With his second request for Boyer's employment information

pending, Youens placed yet another order for information with

Docusearch on September 6, 1999. This time, he requested a

"locate by social security number" search for Boyer. Youens paid

the $30 fee by Mastercard, and received the results of the search

- Boyer's Nashua, New Hampshire home address - on September 7,

1999 .

On September 8, 1999, Docusearch informed Youens that Boyer

worked for Dr. John Bednar at 5 Main Street, Nashua, New

Hampshire. Docusearch acquired Boyer's business address through

a subcontractor, Michele Gambino. Gambino, in turn, obtained the

information by placing a "pretext" telephone call to Boyer in New

Hampshire. Gambino lied about who she was and the purpose of her

call in order to convince Boyer to reveal her employment

information. Gambino had no contact with Youens. Nor did she

have any information as to why Youens was requesting the

information.

On October 15, 1999, Youens drove to Boyer's workplace and

fatally shot her as she left work. Youens then shot and killed

himself. A subsequent police investigation revealed that Youens

kept firearms and ammunition in his bedroom, and maintained a

- 6 - website containing references to stalking and killing Boyer, as

well as other information and statements related to violence and

killing. This information was unknown to the defendants when

Docusearch responded to Youens' information requests. The record

does not indicate whether defendants could have discovered the

existence of the website through the use of internet search

engines.

II. DISCUSSION

A. Negligence

The familiar elements of a negligence claim are "that the

defendant owed the plaintiff a duty, that the duty was breached,

that the plaintiff suffered an injury, and that the defendant's

breach was the proximate cause of the injury." Ronavne v. State,

137 N.H. 281, 284 (1993). This case presents a threshold

question of law not previously determined by the New Hampshire

Supreme Court as to when, if ever, a commercial information

broker or private investigator owes a duty to the subject of a

request for information.

- 7 - The New Hampshire Supreme Court has described in a recent

opinion how it determines whether to recognize a duty in a

particular case. In Hunqerford v. Jones, the court stated:

When determining whether a duty is owed, we examine the societal interest involved, the severity of the risk, the likelihood of occurrence, the relationship between the parties, and the burden upon the defendant.

143 N.H. 208, 211 (1998) (quotations and internal citations

omitted). The court has also emphasized that the question of

whether a duty exists is "inextricably bound together" with the

question of whether injury to the plaintiff is foreseeable.

lannelli v. Burger King Corp., 145 N.H. 190, 193-94 (2000)

(quoting Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304

(1992)). Thus, it has held that "[u]nder New Hampshire law,

'whether a defendant's conduct creates a sufficiently foreseeable

risk of harm to others sufficient to charge the defendant with a

duty to avoid such conduct is a question of law.'" I d . at 193

(quoting Manchenton, 135 N.H. at 304).

The facts in this case that bear on the legal issues of

duty and foreseeability are undisputed. Thus, in ruling on

defendants' summary judgment motion, I could answer the legal

question I propose to certify myself. If I were to do so. however, I would deprive the parties of an authoritative answer

to this difficult question of state law and deny the New

Hampshire Supreme Court a chance to explain the law in an area

that it has not previously had an opportunity to address. See

Lehman Bros, v. Schein, 416 U.S. 386, 391 (1974). Accordingly,

I certify the following question to the New Hampshire Supreme

Court concerning Remsburg's negligence claim:

Under the common law of New Hampshire and in light of the undisputed facts presented by this case, does a private investigator or information broker who sells information to a client pertaining to a third party have a cognizable legal duty to that third party with respect to the sale of the information?

B . Invasion of Privacy

1. Intrusion Upon Seclusion

Remsburg has brought two claims for invasion of Boyer's

privacy. Under the first, Remsburg argues that Boyer had a

reasonable expectation of privacy in her personal information,

including her social security number and her work address.

Remsburg further asserts that Docusearch knew or should have

known that it would be offensive to a person of ordinary

sensibilities to have this personal information disclosed for no

- 9 - legitimate reason and "without authorization, justification,

screening, security, notice or warning." Amended Complaint, 547.

Therefore, Remsburg concludes, when Docusearch disclosed Boyer's

personal information, it intruded upon her seclusion and should

be liable for damages flowing therefrom.

New Hampshire law recognizes the tort of intrusion upon

seclusion. Its elements include: (1) an invasion of something

secret, secluded or private pertaining to the plaintiff (here, to

Boyer); and (2) conduct by the defendant that exceeds the limits

of decency, such that the defendant should have realized that it

would be offensive to a person of ordinary sensibilities.

Fischer v. Hooper, 143 N.H. 585, 590 (1999) (citing Hamberqer v.

Eastman. 106 N.H. 107, 110-11 (1964)).

The New Hampshire Supreme Court has decided two cases

involving intrusion upon seclusion, and neither addressed the

privacy interest at issue in this case. See Fischer, 143 N.H.

585; Hamberqer, 106 N.H. 107. Docusearch has set forth a

detailed argument explaining why Boyer did not have a privacy

interest in either her social security number or her work

address. Remsburg responds by arguing that the offensive method

- 10 - Docusearch used to obtain the information is more important than

the actual information obtained, and that pretextual telephone

calls are particularly offensive.

The body of New Hampshire case law concerning intrusion upon

seclusion is limited. The privacy interests at issue in the two

cases decided by the New Hampshire Supreme Court involved

conversations between a husband and wife in their bedroom, and

telephone conversations between a mother and minor child. In

both cases, the conversations were taped unbeknownst to those

conversing. No New Hampshire court has explicitly decided

whether a person has a privacy interest in her biographical

information, and if so, what methods used to obtain that

information would constitute an intrusion upon the person's

seclusion. Therefore, I certify the following questions

concerning these claims:

(1) If a private investigator or information broker obtains a person's social security number from a credit reporting agency as a part of a credit header without the person's knowledge or permission and sells the social security number to a client, does the individual whose social security number was sold have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information?

- 11 - (2) When a private investigator or information broker obtains a person's work address by means of a pre­ textual telephone call and sells the work address to a client, does the individual whose work address was deceitfully obtained have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information?

2. Commercial Appropriation

Next, Remsburg argues that Docusearch committed the tort of

commercial appropriation when it obtained her personal

information and sold it for profit. Commercial appropriation

occurs when a defendant makes use of a plaintiff's name or

likeness "to pirate the plaintiff's identity for some advantage

of his own, [such] as by impersonation to obtain credit orsecret

information. ..." W. Page Keeton _et a l ., Prosser and Keeton on

Torts, 852 (5th ed. 1984). No common law addressing commercial

appropriation exists in New Hampshire. Therefore, whether this

tort is to be recognized in New Hampshire, and whether it applies

in the circumstances of this case, are appropriate topics for

certification, and I accordingly certify the following question:

If a private investigator or information broker obtains a social security number from a credit reporting agency as a part of a credit header, or a work address by means of a pretextual telephone call, and then sells the information, does the individual whose social security number or work address was sold have a cause

- 12 - of action for commercial appropriation against the private investigator or information broker for damages caused by the sale of the information?

C. New Hampshire Consumer Protection Act

Finally, Remsburg argues that Docusearch violated the New

Hampshire Consumer Protection Act ("Act"), which prohibits the

use of "any unfair or deceptive act or practice in the conduct of

any trade or commerce." N.H. Rev. Stat. Ann. § 358-A:2. This

includes, inter alia, any practice or act "[clausing likelihood

of confusion or of misunderstanding as to affiliation, connection

or association with, or certification by, another." To date, no

case law interpreting this Act has involved deceptive practices

by private investigators or information brokers, such as use of

pretext telephone calls.

Docusearch obtained Boyer's social security number from a

credit reporting agency and resold it for profit. It then hired

an agent to make a pretextual phone call to Boyer in order to

obtain her work address. The agent deceived Boyer regarding who

she was and the purpose of her call. Again, Docusearch profited

by selling this information. Whether such actions violate the

- 13 - Act is a question of law best decided by the New Hampshire

Supreme Court. Therefore, I certify the following question:

If a private investigator or information broker obtains a person's work address by means of a pretextual telephone call, and then sells the information, is the private investigator or information broker liable under N.H. Rev. Stat. Ann. § 358-A to the person it deceived for damages caused by the sale of the information?

SO ORDERED.

Paul Barbadoro Chief Judge

April 25, 2002

cc: David M. Gottesman, Esq. Dona Feeney, Esq. Carol L. Hess, Esq. Michael J. lacopino, Esq. Steven B. Ross, Esq.

- 14 -