• August 23, 2017

OW! This is one ugly order.

The parties in this case have morphed the rules-driven process of a lawsuit into an unrecognizable kerfuffle fueled by mutual distrust and a paucity of reasonable compromise. The merits of the underlying dispute appear lost to the ether, while the parties struggle as if over a global conflagration on issues that well may not change the trajectory of either parties’ probabilities of ultimately prevailing and bringing this long-running litigation to a merciful close. The parties should not be recompensed for the consequences of such actions.

As a prophylactic against further cantankerous litigation by both parties, and to enforce the admonition of Rule 1 [of the Federal Rules of Civil Procedure], the Court needs to take one step further than denying the parties’ present request for fees. Plaintiff and Minneapolis are hereby prohibited from seeking their expenses and attorney’s fees related to any of the motions decided in this Order…and the costs of service of subpoenas related to the February 22, 2017 Order.

The underlying lawsuit is based on allegedly unauthorized and unlawful “look-ups” of the Plaintiff’s driver’s license records in violation of the 1994 Drivers Privacy Protection Act. Maybe the most ridiculous thing about this “cantankerous litigation” is that lawsuit might qualify as a Zombie case (defined as “There is no genuine live dispute but the lawsuit lives on”).

That is, either the defendants looked up Plaintiff’s drivers’ license info without a permissible purpose or they didn’t. We would expect that this could be determined quite quickly, cheaply, and decisively. The only issue is damages and even that is not really an issue because the statute provides for statutory damages.

The law is not complex. The facts are not complex. But Zombie cases lurch forward (sometimes for years). (Incidentally, the case provides for attorney fee-shifting, sometimes considered a weapon against Zombie cases. This is obviously not a silver bullet.)

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