OfficeMax Letter Revisited: What Could A Lawyer Do For Mr. Seay?

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Publication Type: 
Other Writing
Publication Date: 
January 30, 2014

Cross-posted from Forbes

Mike Seay wants to know why he received a letter from OfficeMax OfficeMax that referred to the death of his daughter on the front of the envelope.  Why did this office supply company possess information about the car crash that killed his kid?  And how did those details end up on the address line?  Despite sustained media coverage, all OfficeMax will say is that the letter represented an error by some unnamed third-party data broker.

Mr. Seay recently told the New Yorker that he is thinking about hiring a lawyer to help him force OfficeMax to reveal more information.  It is not clear what a lawyer could do here.  There is no law that compels OfficeMax to disclose its marketing partners.  Does this mean that Mr. Seay has no recourse?  I cannot offer legal advice from here in Washington.  But, as a law professor specializing in torts and privacy, I can speculate about what a lawyer might tell Mr. Seay were he to retain one.

A lawyer might tell Mr. Seay that plaintiffs can generally file a lawsuit against an unknown defendant (listed as “John or Jane Doe”).  Having done so, the plaintiff could then request that the court subpoena a third party for the identity of that defendant.  This happens, for instance, where an anonymous user of a website makes an allegedly defamatory comment.  A plaintiff might sue a John or Jane Doe and then ask the court to subpoena the name of the individual user from a website or Internet service provider.

Without identifying him or herself, the John or Jane Doe could file a motion to quash or invalidate the request.  Or the party served, like OfficeMax, could simply oppose it.  Before forcing a third party to reveal the identity of a defendant the courts is likely to require, at a minimum, that the plaintiff show he has a valid underlying case.

A good lawyer would not make Mr. Seay any promises here; indeed, she would be cautious.  Generally speaking, the emotional distress Mr. Seay and his wife suffered, unaccompanied by physical injury or some other cause of action, will not be compensated unless the defendant inflicted the distress on purpose.  It seems obvious that neither OfficeMax nor its provider referred to Mr. Seay’s daughter for the purpose of upsetting the family.  Were Mr. Seay to so allege, a court might find that his suit was frivolous, or even that he was acting in bad faith by bringing it.

There have been occasions, however, where a plaintiff succeeded in alleging that a defendant inflicted emotional damage by accident through negligence.  These cases are rare.  But interestingly for Mr. Seay, they tend to involve the death of a loved one.  For instance, courts have permitted causes of action where a defendant negligently informed someone that their relative had died, when in fact they had not.  And courts have permitted recovery for the emotional distress caused by the mishandling of a loved one’s corpse.

Neither OfficeMax nor its vendor did either of these things, of course.  A court would have to decide whether whatever happened here is analogous to a false death notice, corpse mishandling, or the small handful of other cases when the theory of negligent infliction of emotional damage has been allowed to proceed.  Still, given that we know so little, it is conceivable a court would permit enough “discovery,” meaning judicially-compelled fact-finding, to figure out just how the words “daughter killed in a car crash” ended up on that letter.  This could in theory include the identity of OfficeMax’s partner and some details about their relationship.

You might be thinking: this sounds like a steep uphill battle.  Why can’t a person like Mr. Seay simply force a company to explain such a devastating marketing blunder?  Well, he could, if there were a law requiring it.  The other avenue available to Mr. Seay—and, I suppose, to you—is to contact his local representative.