Solicitation of Clients: SCOTUS Holds DMV Records Are Off Limits

Lawyers may not use state DMV records to locate potential class members for a potential class-action lawsuit.  The June 17th opinion in Maracich v. Spears holds that the Drivers’ Privacy Protection Act’s (DPPA) “litigation exception” does not permit the use of state DMV records for attorney solicitation of potential clients.

The Facts: Lawyers in South Carolina used data from the state’s DMV records to locate potential clients to build a class action suit against certain South Carolina car dealers. The South Carolina car dealers subsequently sued these lawyers for violating the DPPA.

The Holding: Though the DPPA’s “litigation exception” allows the use of driver data for “investigation in anticipation of litigation,” an unusual 5-4 majority where Scalia, J. and Breyer, J. switched places held that such “investigation” only extends to determining whether a potential claim has sufficient merit to warrant a lawsuit or to locate a witness but not to find clients to bring a case.

The Remand:  SCOTUS remanded for the case for a determination of the “predominant purpose” of the use of the DMV records. If the lower court objectively finds that the “predominate purpose” was to solicit clients, then the lawyers’ actions violated the DPPA, but if the “predominate purpose” was for some other permissible litigation-related purpose, then the lawyers’ actions fall within the “litigation exception” of the DPPA. Query whether a lawyer’s use of DMV records for solicitation as secondary to a predominate permissible purpose creates a situation in which the use of DMV records for solicitation is permissible under the DPPA.

Read more here and here.

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