Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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DEICHER v. CITY OF EVANSVILLE, WISCONSIN (September 19, 2008)

Mary Mezera divorced Jimmy Reiners after years of alleged physical and psychological abuse. She remarried and moved from Evansville, Wisconsin into a new community, keeping her location secret from Reiners. In February 2006, Reiners phoned the Evansville Police and asked for Mezera’s current address, claiming he needed to contact her in relation to past due mortgage payments. The police obtained her address from the state motor vehicle records and gave it to Reiners. He began to contact Mezera, putting her and her husband in fear of their safety. Mezera and her husband sent a Notice of Claim to the Police Department on April 22. They filed suit on June 30, alleging a violation of the Driver’s Privacy Protection Act (“DPPA”). During damages deliberations at trial, the jury asked for the date of the filing of the complaint, a date which was not in the record. The plaintiffs asked that instead they be given the Notice of Claim, which was a trial exhibit. The trial judge gave the jury the date of the complaint and refused to provide the Notice of Claim. The jury awarded $25,000 in compensatory and punitive damages. The district court granted plaintiffs’ request for attorney fees under DPPA but reduced the amount from almost $200,000 to $25,000 on the ground that the fee award should not exceed the damage award. Then he reduced their request for fees in preparing the fee petition by an equal percentage on the ground that that was the degree to which their petition was successful. Plaintiffs appeal.

in their opinion, Judges Posner, Rovner, and Williams reversed and remanded for a new trial on damages. The Court considered whether the lower court erred in providing the date of the complaint to the jury or erred in not providing the Notice of Claim. First, the Court held that the date of the filing of the complaint is a public record, not extrinsic evidence, and therefore the court did not err. Next, the Court observed that it is generally within the trial court’s discretion to determine which exhibits are provided to the jury. Thus, a trial court’s decision is reviewed under a clear abuse of discretion standard. Nevertheless, the court found a clear abuse of discretion here. At trial, the plaintiffs argued that the police officer who gave the address to Reiners had fabricated his report in order to come within an exception to DPPA liability. The date on which the police first learned of the claim (i.e., the date of the Notice) was a key part of this argument. The plaintiffs argued to the trial court that the real target of the jury’s inquiry during their deliberations was the date of the Notice, not the date of the complaint (which had not even been discussed at trial). The Court emphasized that the error was not in failing to provide the Notice but the possible prejudice in providing the date of the complaint without providing the Notice, thus possibly creating confusion in the eyes of the jury.
Although the Court did not rule on the plaintiffs’ objections to the district court’s fee decisions because of the remand, it did note that the automatic reduction of trial fees to the amount of the damage award and the automatic reduction of the fee petition fee in the same ratio were “likely unreasonable.”