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Bratt v. Jensen Baird Gardner & Henry, P.A.

United States District Court, D. Maine

September 24, 2018



          Nancy Torresen United States Chief District Judge.

         This action represents the latest chapter in a dispute among Harold F. Snow's heirs and relatives[1] that has persisted since his passing on November 29, 2011. The Plaintiffs are the husband and children of Mr. Snow's daughter, Dr. Susan Snow. They allege that Defendant Linda Moulton, also Mr. Snow's daughter and the designated personal representative of his estate, absconded with a shoebox full of highly sensitive personal information stored on a set of compact discs and hard drives that Dr. Snow and her family had left with Mr. Snow for safekeeping (the “Storage Media”). They further allege that Ms. Moulton shared the data from the Storage Media with her attorneys, individual Defendants Lee Ivy, Frank Chowdry, and Brendan Rielly and Defendant law firm Jensen Baird Gardner & Henry (the “Jensen Baird Defendants”), and that the Defendants collectively used that data as leverage during probate of Harold Snow's estate. Based on this conduct, the Plaintiffs have brought a three-count Complaint against the Defendants asserting state-law claims for invasion of privacy (Count I), conversion (Count II), and intentional infliction of emotional distress (Count III). (ECF No. 1.) This matter comes before me on the Jensen Baird Defendants' motion to dismiss the Complaint for failure to state a claim under Federal Rule of Procedure 12(b)(6) (“Jensen Baird Motion”), (ECF No. 10), and Ms. Moulton's motion for judgment on the pleadings under Federal Rule of Procedure 12(c) (“Moulton Motion”). (ECF No. 16.) For the reasons that follow, I DENY both motions.


         I. The Storage Media

         From 1996 until 2011, Dr. Susan Snow and her family collected personal and sensitive information on a set of hard drives, digital backup tapes, and compact discs. Compl. ¶¶ 1, 19. Dr. Snow and her family stored these materials in a shoebox at Mr. Snow's home, under his promise of security and confidentiality. Compl. ¶¶ 19, 54.

         When Mr. Snow died on November 29, 2011, Dr. Snow's sister Linda Moulton was named personal representative of his estate. Compl. ¶ 20. Within hours of Mr. Snow's death, Ms. Moulton excluded Dr. Snow and her family from Mr. Snow's property and changed the locks on his home. Compl. ¶ 20. Alarmed, Dr. Snow and her family asked Ms. Moulton either to allow them onto the property to collect the Storage Media or to return the Storage Media to them. Compl. ¶¶ 21-22. Dr. Snow and her family made clear to Ms. Moulton that the Storage Media's contents were private and confidential, and Ms. Moulton acknowledged that the Storage Media belonged to Dr. Snow and her family and not to Mr. Snow's estate. Compl. ¶ 22.

         When Ms. Moulton eventually allowed Dr. Snow and her family onto Mr. Snow's property, they discovered that the Storage Media were missing. Compl. ¶ 24. Ms. Moulton confirmed that she had removed the Storage Media to her own home, but said that she would return them shortly. Compl. ¶ 24. She later failed to follow through on this promise and instead claimed that the materials had gone missing or that Dr. Snow or her family had taken them back. Compl. ¶ 24.

         II. The Probate Action

         On March 20, 2012, Ms. Moulton, acting in her capacity as personal representative of Mr. Snow's estate, filed a complaint against Dr. Snow to void for undue influence a conveyance that Mr. Snow had made to Dr. Snow before his death (the “Probate Complaint”). Moulton Ex. C (ECF No. 16-3). During the ensuing litigation, Ms. Moulton attempted to leverage the Storage Media's contents against Dr. Snow. Compl. ¶ 27. Contrary to her earlier claim that she had lost the materials, Ms. Moulton reviewed the data on the Storage Media and gave it to her attorneys. Compl. ¶¶ 27-28. Attorneys Chowdry, Ivy, and Rielly then also accessed, reviewed, and created a copy of the Storage Media data. Compl. ¶¶ 27-28, 30-31.

         A. Discovery Dispute Regarding the Storage Media

         On July 17, 2013, Dr. Snow's attorney submitted a letter to the Probate Court to “present a discovery dispute” on her behalf. Moulton Ex. D (ECF No. 16-4). The letter asserted that Ms. Moulton had “obtained private information belonging to [Dr. Snow] and nonparty members of [her] family through means outside the scope of discovery rules” that was “not discoverable”-i.e. the Storage Media. Moulton Ex. D. The letter demanded that Ms. Moulton “immediately return the information, destroy all copies and request the information through the normal discovery process.” Moulton Ex. D. Attorney Reilly responded that Ms. Moulton “merely intend[ed] to keep a copy” of the data because Dr. Snow had misrepresented the contents of the Storage Media and because the Storage Media contained discoverable materials including a set of diaries that Dr. Snow had refused to produce. Moulton Ex. E (ECF No. 16-5).

         The Probate Court held a conference of the parties, during which Attorney Reilly misrepresented that the Storage Media contained no information related to Dr. Snow's family beyond a few pictures or limited mentions in other documents. Compl. ¶ 36. After the conference, on July 25, 2013, the Probate Court issued an order resolving the discovery dispute, which provided in relevant part that Dr. Snow was to turn over her diaries and any similar discoverable materials to Ms. Moulton's attorney and that:

[Ms. Moulton] shall return to [Dr.] Snow's attorney by noon on Monday, July 29, 2013, the original CDs and hard drive found by [Ms. Moulton] in her father's home that are the subject of [Dr.] Snow's discovery dispute conference request. [Ms. Moulton]'s attorney shall keep a copy of the original CDs in order to maintain a record of what was received. [Ms. Moulton] may compare the documents produced pursuant [to the Probate Court's order for Dr. Snow to produce her diaries] with those on the CDs to make sure they are identical. If they are identical, [Ms. Moulton]'s attorney shall keep the copies of the CDs confidential unless necessary to defend any claim or action brought by [Dr.] Snow and/or her family, representatives, agents or assigns or anyone acting on their behalf, against [Ms. Moulton] or [her] counsel.

Moulton Ex. F (ECF No. 16-6). Following the Probate Court's order, Ms. Moulton, through her attorneys at Jensen Baird, turned over most of the original Storage Media to Dr. Snow's counsel but failed to return one hard drive and one compact disc. Compl. ¶ 39.

         B. Settlement of the Probate Complaint

         On July 30, 2013, Dr. Snow, who was then represented by attorneys from Bernstein Shur, appeared at Jensen Baird's law office for Dr. Snow's deposition. Instead of proceeding with the deposition, Dr. Snow's attorney and Attorneys Rielly and Ivy went on record before the court reporter and dictated the terms of a settlement of the Probate Complaint. In the weeks that followed, Attorney Rielly and counsel for Dr. Snow exchanged drafts of a formal settlement agreement but were unable to arrive at a satisfactory writing. On August 15, 2013, Ms. Moulton, again in her capacity as personal representative, filed a motion to enforce the settlement memorialized in the July 30, 2013 deposition transcript. Dr. Snow opposed the motion to enforce.

         On October 28, 2013, the Probate Court issued an order that granted Ms. Moulton's motion to enforce the settlement and her petition for formal probate of Mr. Snow's will. The Probate Court held that the oral recitation of the proposed settlement was binding and found that, pursuant to the transcript, the parties' agreement included the following stipulation relevant to this action:

Global releases will be exchanged by the parties for all claims relating to the estate and these releases are to include the law firms representing the parties. In addition, the releases are to include any and all claims relating to [Ms. Moulton]'s acquisition of the computer discs and hard drive belonging to [Dr.] Snow, and any claims by [Dr. Snow] that [Ms. Moulton] or her attorneys have accessed information contained on the discs and drive are waived. [Jensen Baird][3] will destroy all copies they may have retained of information on the computer discs and hard drive, and [Bernstein Shur] will preserve the original computer discs and hard drive in perpetuity.

Moulton Ex. G at 7 (ECF No. 16-7). Dr. Snow appealed the October 28th order to the Law Court, which affirmed the Probate Court's decision on August 14, 2014. Jensen Baird Ex. B (ECF No. 10-2).

         C. Dr. Snow's Motion for Relief from Judgment and her Family Members' Motion to Intervene

         The Snow family's story did not end there. Instead, through a series of letters received by the Probate Court on September 11, 2014, Dr. Snow and three members of her family[4] asked the court to modify its order on the motion to enforce the settlement. Moulton Exs. L-O (ECF Nos. 16-12, 16-13, 16-4, 16-15). Dr. Snow followed these requests with a formal motion for relief from the judgment. Jensen Baird Ex. D (ECF No. 10-4). In her motion, Dr. Snow, represented by her new attorney Thomas F. Hallett, argued that the judgment was void because, by allowing her former attorneys at Bernstein Shur to retain the original Storage Media in perpetuity, the judgment “bound [Dr. Snow's family members] to the terms of the agreement regarding their personal property without this court having in personem jurisdiction, in violation of due process.” Jensen Baird Ex. D at 1. Dr. Snow purported to file her motion on her family's behalf as well as her own. Jensen Baird Ex. D at 1. Dr. Snow's family, also represented by Attorney Hallett, filed a separate motion to intervene for the limited purpose of seeking to void the judgment for lack of personal jurisdiction. See Jensen Baird Ex. F at 5 (ECF No. 10-6).

         Through an order dated October 25, 2016 (the “Reconsideration Order”), the Probate Court upheld the judgment yet again. Jensen Baird Ex. F. The Probate Court began by noting that Dr. Snow had offered no authority to support the proposition that personal jurisdiction was necessary over all persons whose information is incidentally disclosed in discovery. Jensen Baird Ex. F at 4-5. The Probate Court further found that (1) “[n]o information regarding [Dr. Snow's family members] was publicly disseminated in the discovery process”; (2) “the holder of the information is not using it for profit, fraud, or to compromise a privacy right”; and (3) “the information is being held in confidence by [Dr. Snow's] former attorney.” Jensen Baird Ex. F at 4-5. Construing the motion to intervene as a request for joinder of parties necessary for just adjudication under either Rule 19 or Rule 22 of the Maine Rules of Civil Procedure, the Probate Court held that it was unnecessary to join Dr. Snow's family members in the action because “information regarding nonparties incidentally disclosed in ...

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