United States: “Outrage Tort” Privacy and the Geek Squad – Susan Brenner

20 06 2015

Tuscaloosa_Federal_Courthouse,_Tuscaloosa_(Tuscaloosa_County_,_Alabama)This post examines an opinion in which a U.S. District Court Judge ruled on cross-motions for summary judgment filed, respectively, by the plaintiff who brought the lawsuit and by the defendant:  March v. Best Buy Stores, Inc., 2015 WL 3467036 (U.S. District Court for the Northern District of Alabama 2015).

As Wikipedia explains, in U.S. civil litigation, summary judgment can be awarded by a judge in a civil suit, prior to trial,

holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court’s finding that:

1. there are no disputes of `material’ fact requiring a trial to resolve, and

2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.

A party seeking summary judgment (or making any other motion) is called the “moving party”. A `material fact’ is one which, depending upon what the factfinder believes `really happened,’ could lead to judgment in favor of one party, rather than the other.

This judge began his opinion by explaining what the case was about and the nature of the cross-motions for summary judgment:

Nicole March (`March’) brings this action under the Court’s diversity jurisdiction, and alleges various state law claims against Defendants Best Buy Stores, LP (`Best Buy’) and Geek Squad Technical Support (`Geek Squad’). March asserts that, while servicing her personal electronic devices, employees of . . . Best Buy viewed and retained fifty-eight nude photographs of Plaintiff without her permission. The Court has before it Plaintiff’s motion for partial summary judgment . . . and Defendant’s motion for summary judgment. . . .

You can, if you are interested, read more about the case in the news stories you can find here and here.

The judge then outlines the facts in the case, in some detail, noting that March was an

employee at the Best Buy store in Tuscaloosa, Alabama from April 2011 until late 2013. Best Buy is a large consumer electronics retailer, while Geek Squad is a wholly-owned subsidiary that provides in-store customer assistance concerning customers’ personal electronic devices. Members of the Geek Squad worked in an area of the Best Buy store referred to as the `Geek Squad precinct.’ While March worked at Best Buy’s Tuscaloosa location, she was not a member of the Geek Squad.

On multiple occasions, March has posed nude for photographs or has personally taken photographs of herself while nude. March stored these photographs on her personal electronic devices, including several external hard drives. On at least two occasions, March had external hard drives containing nude photographs serviced by the Geek Squad at Best Buy’s Tuscaloosa location. In August 2011, March brought two external hard drives (`Hard Drive 1’ and `Hard Drive 2’) to Geek Squad for data recovery services. Hard Drive 1 was examined and later returned to March as functional. Hard Drive 2 was sent off-site in an effort to recover the data stored on it. However, the hard drive’s contents could not be accessed and it was returned to March in its non-functional capacity. Hard Drive 2’s contents remain inaccessible. March paid for these services and received a customer ticket documenting the transaction.

In March 2013, March brought a third external hard drive (`Hard Drive 3’) into the Tuscaloosa Best Buy for service by Geek Squad. While in the store, March purchased a fourth external hard drive (`Hard Drive 4’), and requested that Geek Squad transfer the contents of Hard Drive 3 to Hard Drive 4. March gave her devices to a Geek Squad member named John Young to complete the data transfer. March did not pay for this transfer service, and received no customer ticket documenting the services. However, March contends that her manager at the Best Buy location, James Meggs, told her that Best Buy would complete the data transfer for March should she buy the new external hard drive at Best Buy’s Tuscaloosa location. Best Buy asserts that Meggs never made such a promise, and that, at most, the free transfer service was discussed after March purchased Hard Drive 4.

On May 11, 2013, March received a Facebook message from Nathan Smith. Smith was March’s former coworker, and was a Geek Squad employee at the Tuscaloosa Best Buy until March 15, 2013. In the Facebook message, Smith told March he was in possession of `about 50 or so’ nude photographs of her. Smith initially told March he had obtained the photographs from accessing a link to a torrent website, and claimed the link was forwarded to him by a former Geek Squad employee who had last worked at the Tuscaloosa Best Buy in early 2012. March traveled to Smith’s house that night to view the photographs. After viewing the photographs on Smith’s computer, Smith downloaded the fifty-eight photographs at issue from his computer to a USB flash drive (the `March Flash Drive’). Smith then gave March the flash drive.

The judge then explains that

[l]ater that night, March received a Facebook message from Charles Scarbrough, who was also a Geek Squad employee at the Tuscaloosa Best Buy. Scarbrough informed March he had heard of [her] predicament, and would personally find out whether anyone at the Geek Squad precinct had removed photographs from one of March’s external hard drives without her permission. 

On May 17, 2013, March received another Facebook message from Scarbrough, stating that he `had found the culprit’ and had appropriately disciplined that person. However, Scarbrough asked March to `do him a favor’ by not asking who the Geek Squad employee was that took the photographs. March never responded to this Facebook message. Scarbrough now asserts that he in fact never found the person responsible for removing March’s photographs, and that he told March otherwise in an effort to ease her mind. On May 20, 2013, March filed a police report concerning the matter.

In the days immediately following May 11, 2013, March told several supervisors and coworkers at Best Buy about the apparent theft of her photographs. According to Best Buy, an internal investigation was launched at that time, but to no conclusive result. Following the filing of [this case] on August 8, 2013, Best Buy reopened the investigation. Stephanie Miller, a human resources representative at Best Buy, led the investigation. While Miller was unable to determine if a Geek Squad employee actually removed photographs from one of March’s personal devices, she did uncover that `customer data’ — apparently March’s nude photographs — were transferred to a personal flash drive using a Geek Squad computer. Scarbrough was logged into the computer at the time of the transfer. As a result, Scarbrough was terminated on July 13, 2014.

In a footnote, the judge explains that the flash drive noted above was “later determined this to be the March Flash Drive (i.e., the flash drive given to March by Smith on May 11, 2013.”

The judge goes on to explain that, while it was

undisputed that March’s photographs were transferred to the March Flash Drive using a computer in the Geek Squad precinct, the parties dispute the details surrounding this transfer. Relying on Smith’s Facebook message, March initially alleged that the theft occurred in August 2011.

However, Smith has since changed his story. . . . Smith now claims he received the pictures from Scarbrough. Specifically, Smith now states that, in early March of 2013, Scarbrough showed Smith the photos, which were contained in a hidden file on a computer in the Geek Squad precinct. According to Smith, Scarbrough `alluded’ that it was Matt Cox, another Geek Squad employee at the Tuscaloosa Best Buy, who removed the photographs from one of March’s electronic devices. . . .

Scarbrough then copied the pictures to the March Flash Drive for Smith to take with him. This is the same flash drive Smith later gave to March when she visited his home to view the photographs on May 11, 2013. Both Scarbrough and Cox deny any involvement in downloading or viewing the photographs at issue. Because Smith has recanted his earlier story as to how he came into possession of March’s photographs, March now contends that the theft occurred when she brought Hard Drive 3 in for servicing in March 2013.

As the paragraphs above illustrate, it can be difficult for a judge to rule on a summary judgment motion because, as in this case, there are viable, and complex, disputes about what actually happened.

As to that issue, the judge goes on to explain a final apparent wrinkle in the case:

Best Buy presents evidence in the form of electronically stored information (`ESI’) that seemingly contradicts Smith’s new story. While Best Buy concedes that a Geek Squad computer was used to transfer March’s nude photographs to the March Flash Drive on March 8, 2013, Best Buy argues that the ESI evidence shows that Hard Drive 3 was not the source of these photographs.

Rather, Best Buy contends that an unidentified USB flash drive (the `Mystery Flash Drive’) containing all 58 photographs at issue was inserted into a Geek Squad computer on March 8, 2013. The photographs were then copied directly from the Mystery Flash Drive to the March Flash Drive. In other words, the photographs were never saved to a Geek Squad computer, and instead passed directly from the Mystery Flash Drive to the March Flash Drive, with the Geek Squad computer merely serving as the conduit for the transfer of files.

Furthermore, Best Buy offers ESI evidence showing that three days earlier, on March 5, 2013, at least some of the photographs at issue were transferred from yet another unidentified flash drive to the Mystery Flash Drive, with March’s own laptop acting as the medium for the transfer. Thus, Best Buy essentially presents a version of the facts in which March’s photographs moved from some unknown storage device to the Mystery Flash Drive via March’s laptop, then from the Mystery Flash Drive to the March Flash Drive via the Geek Squad computer.

While March represented during discovery that her laptop was not serviced by the Geek Squad in March 2013, Best Buy contends that Plaintiff March personally worked on her electronic devices while in the employees-only section of the Geek Squad precinct in March of 2013. . . . Finally, Best Buy also points to ESI evidence showing that the first time March connected Hard Drive 3 to her laptop to back up the laptop’s contents was March 14, 2013, which is at least six days after the photographs were allegedly removed from Hard Drive 3 without March’s permission.

The District Court Judge goes on to explain one more aspect of the litigation:

Also at issue is whether supervisors at Best Buy’s Tuscaloosa location appropriately enforced Best Buy’s policies concerning the privacy of customers’ files and data. According to March, Geek Squad employees routinely used personal flash drives when servicing customers’ electronic devices, which was in violation of company policy. March also presents evidence that Geek Squad employees used flash drives and common desktop computers to transfer customer data from one device to another, despite the fact that Best Buy policy required that a specially designed transfer device — dubbed `the Mule’ — be used when effectuating transfers of customers’ files.  

Finally, March asserts that Geek Squad management openly tolerated `cheating’ during quiz-based training sessions, since employees routinely shared answers with one another in violation of the training sessions’ rules. Best Buy argues that, to the extent such conduct ever occurred, it ceased following the hiring of Wenetta Stallworth (`Stallworth’) as the Tuscaloosa location’s new assistant manager in early 2013.

Now to the summary judgment issue.  As the excerpt from Wikipedia quoted at the beginning of this post explains, a judge can grant summary judgment only if the party seeking summary judgment can show there is “no genuine dispute as to any material fact” and that party is entitled to judgment on the settled facts.  A “genuine dispute” regarding a material fact exists if “`the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”  March v. Best Buy Stores, Inc., supra(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).

And, as this judge explained, in ruling on such a motion the judge “should not weigh the evidence but must simply determine whether there are any genuine issues that should be resolved at trial.” March v. Best Buy Stores, Inc., supra.  And he/she should also consider the evidence in the light most favorable to the nonmoving party, e.g., the party against which the other party to the litigation seeks summary judgment.

This post is only going to examine the judge’s rulings on the summary judgment motions that targeted March’s claims for invasion of privacy and outrageous conduct.March v. Best Buy Stores, Inc., supra.  There are other causes of action and arguments, but these are the most interesting, I think, and I am trying to limit the length of the post.

As to the first claim, the judge explained that under Alabama law (and state lawapplies in diversity cases), an invasion of privacy claim can be based on “intruding into the plaintiff’s solitude or seclusion”.  March v. Best Buy Stores, Inc., supra(quoting S.B. v. Saint James School, 959 So.2d 72 (Alabama Supreme Court 2006)). March argued that “Geek Squad employees intruded upon her private affairs when they wrongfully downloaded and retained her private photographs while servicing Hard Drive 3.” March v. Best Buy Stores, Inc., supra.  The judge noted that, as outlined above, Best Buy argued that the photographs at issue were

viewed on the Geek Squad computer six days before the hard drive that Geek Squad serviced (Hard Drive 3) could have possibly contained March’s photographs, suggesting that the photographs were obtained by Geek Squad employees through some other means. In addition, Best Buy offers testimony that March personally worked on her laptop while in the employees-only section of the Geek Squad precinct. This evidence is sufficient to create a genuine issue of material fact concerning March’s invasion of privacy claim.

So the judge denied summary judgment on this claim. March v. Best Buy Stores, Inc., supra.  That is, he denied March’s motion for summary judgment on her behalf and Best Buy Stores’ motion for summary judgment on its part. March v. Best Buy Stores, Inc., supra.

The judge then took up Best Buy Stores’ motion for summary judgment on its behalf with regard to March’s “claim of outrage.”  March v. Best Buy Stores, Inc., supra.  He went on to explain that the

tort of outrage, also recognized as the tort of intentional infliction of emotional distress, requires `extreme and outrageous conduct by a person who intentionally or recklessly causes severe emotional distress to another.” American Road Service Co. v. Inmon, 394 So.2d 361 (Alabama Supreme Court1980). The plaintiff `must produce evidence that the defendant’s conduct [was] so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’ Carter v. Innisfree Hotel, Inc., 661 So.2d 1174 (Alabama Supreme Court 1995).

The District Court Judge then noted that in arguing that

it is entitled to summary judgment on March’s claim for outrage, Best Buy essentially asserts that the alleged misconduct was not `outrageous’ enough to sustain her claim. However, the Restatement contemplates scenarios where a tortfeasor abuses the authority, access, or trust afforded to him by his occupation, and in doing so inflicts emotional harm on a plaintiff. See Restatement (Second) of Torts §46 comment e (1965).

As such, March’s allegations—which are essentially that a Geek Squad employee viewed and retained her personal nude photographs without her permission, and then showed those photographs to at least two other coworkers—could be considered by a rational jury to constitute `outrageous’ conduct.

 In addition, Best Buy argues that the emotional harm inflicted upon March was not “severe” enough to sustain a claim of outrage. See Harrelson v. R.J., 882 So.2d 317 (Alabama Supreme Court 2003) (stating that a plaintiff bringing a claim for outrage must show emotional distress so severe that `no reasonable person could be expected to endure it’).

March has offered evidence, including her own testimony, suggesting that she found the alleged tortuous conduct to be deeply upsetting. While Best Buy has offered evidence to the contrary, the resulting conflict must be resolved by the trier of fact. As such, Best Buy’s motion for summary judgment is denied with respect to March’s claim for outrage.

For these and other reasons, the judge denied March’s motion for summary judgment, granted Best Buy’s motion for summary judgment as to March’s claim for “negligence/wantonness” and denied its motion(s) for summary judgment as to her “remaining claims.”  March v. Best Buy Stores, Inc., supra.  If you would like to read the entire opinion, you can find it here.

This post originally appeared on the Cyb3rCrim3 blog and is reproduced with permission and thanks


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