Thursday, October 29, 2009

Dad’s Dumpster Dive Led to $1.8M Win in Phone Records ‘Pretexting’ Case

From the ABA Journal Law News Now

Posted Oct 19, 2009, 07:26 pm CDT
By Martha Neil

"Saleswoman Kathy Lawlor got into a dispute with her employer four years ago over a big incoming commission, and she said the company fired her when she wouldn't agree to sign a document changing her compensation schedule.

The pay dispute soon wound up in court, and her ex-employer, North American Corp. of Illinois, called a Chicago lawyer to arrange an investigation into Lawlor's activities, reports the Chicago Tribune.

The lawyer called a private investigation company, Probe International. And the then-president of PI, according to court testimony arranged for a third-party vendor to obtain Lawlor's personal phone records by "pretexting"—i.e., pretending to be Lawlor herself, the newspaper recounts.

The lawyer says he knew nothing about the pretexting, which wasn't then illegal. (It is now.) But a Cook County Circuit Court jury nonetheless was sympathetic to Lawlor's invasion-of-privacy claim, awarding her a $1.8 million judgment last month against North American, which says it did nothing wrong, the Tribune recounts. Lawlor testified that discovering her phone records had been obtained by North American made her fearful about her family's safety. She stopped letting her children play in the yard and installed a new security system at her suburban Chicago home.

The pay dispute morphed into a seven-figure invasion-of-privacy claim after Lawlor and a neighbor noticed that a private eye apparently was watching her for hours from a car parked next door. The neighbor saw the driver throw some papers into the trash one day, and mentioned this to Lawlor's father. He pulled some papers out of the garbage can that identified Probe as the company that apparently had been investigating her, and Lawlor took them to her then-lawyer, the Tribune reports.

"The defining moment in the case was when Kathy Lawlor walked into my office and handed me a white envelope with a return address that said 'Probe,' " attorney William Kane tells the newspaper. He sought Lawlor-related records from Probe and, although the company and North American fought the subpoena, claiming the investigation was confidential, Kane prevailed. When the material arrived, it contained pages of Lawlor's phone records.

A Construction Law Attorney Blog post by a lawyer who served on the jury in the case notes that the verdict was comprised of $65,000 in compensatory and $1,750,000 in punitive damages. Lawlor's intrusion-on-seclusion claim contended that North American provided confidential information from her personnel file that Probe used in the pretexting, he notes.

Lawlor, who is now 41, tells the Tribune it is gratifying to have stood up for what was right and won. However, the big-bucks award is not all hers: Her current counsel, Mitchell Katten and Nancy Temple, represented her on a contingency-fee basis, and Kane billed Lawlor $600,000 for his noncontingent representation, the newspaper notes.

A lawyer for North American says the company is fighting the $1.8 million verdict, but declined further comment. The company still has an outstanding claim against Lawlor for allegedly disclosing business secrets to a competitor, which will be decided by Judge Carol Pearce McCarthy."

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