E-Alert Case Updates

Corporation does not have protected interest in documents thrown in common area dumpster

Greenpeace, inc. v. Dow Chemical Co.
__ A.3d___ (not yet published)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://caselaw.findlaw.com/dc-court-of-appeals/1676128.html

Between 1998 and 2000, Greenpeace, an environmental lobbying group, investigated and lobbied against Dow Chemical Co. and Sasol North America, Inc. for their chemical manufacturing operations at Lake Charles, Louisiana. In response, both companies retained lobbying firms to assist in combating Greenpeace’s efforts. To this end, both lobbying firms independently retained the services of the private security firm of Beckett Brown International (“BBI”). As part of its investigation, BBI undertook a multi-pronged approach to obtaining information to aid its clients. Specifically, BBI conducted

(1) “D-lines,” which involved recovering documents from the dumpsters and recycling bins that Greenpeace used for its trash; (2) physically infiltrating and breaking into Greenpeace’s office, along with monitoring and surveilling individuals associated with Greenpeace; and (3) electronic surveillance by hacking into Greenpeace’s computers and wiretapping its telephones. For purposes of this appeal, only the “D-lines” and physical intrusion and surveillance tactics are relevant.

Id. Greenpeace alleged that BBI conducted D-lines in excess of (130) times in a two-year period. Greenpeace learned of these efforts in 2008 from an investigative reporter.

Greenpeace filed suit in Federal Court alleging Racketeer Influenced and Corrupt Organizations Act (“RICO”) and state law violations in 2010. See Greenpeace, Inc. v. The Dow Chem. Co., 808 F.Supp.2d 262 (D.D.C. 2011). That suit was dismissed, as the Federal Court rejected the RICO claims. Greenpeace refiled its lawsuit in the Superior Court of the District of Columbia, against both chemical companies, the lobbying firms, and members of BBI, alleging (1) trespass, (2) invasion of privacy, and (3) conversion. Defendants all moved to dismiss the complaint, which was granted. Greenpeace appealed.

The District of Columbia Court of Appeals first addressed the claim of trespass. In holding that Greenpeace’s claim failed as a matter of law, the Court observed that “the tort of trespass is defined as ‘an unauthorized entry onto property that results in interference with the property owner’s possessory interest therein.” Id. quoting, Sarete, Inc. v. 1344 U St. Ltd. P’ship, 871 A.2d 480, 490 (D.C.2005). However, Greenpeace’s dumpsters were located in a common area, and used by all the tenants of the building. Therefore, Greenpeace could not demonstrate the necessary “possessory interest” in the common area or dumpsters.

While the trial court, had given three separate basis for dismissing the invasion of privacy claim, the appellate Court held that the claim was barred by the statute of limitations. In coming to this conclusion, the Court noted that:

Invasion of privacy is not one tort, but a complex of four, each with distinct elements and each describing a separate interest capable of being invaded.” The four constituent torts are: “(1) intrusion upon one’s solitude or seclusion [“intrusion”]; (2) public disclosure of private facts [“public disclosure”]; (3) publicity that places one in a false light in the public eye [“false light”]; and (4) appropriating one’s name or likeness for another’s benefit [“appropriation”].

Id. quoting, Wolf v. Regardie, 553 A.2d 1213, 1216–17 (D.C.1989). Greenpeace’s claim was of the intrusion type, which the Court acknowledged had never been subject to a statute of limitation analysis. However, the other three versions of invasion of privacy had been judicially determined as having a one (1) year statute of limitations, and the Court held that the justification behind applying the one (1) year statute of limitations for those versions also applied to the intrusion type. Since Greenpeace’s claim was filed after one year from learning of the intrusions, the claim was barred.

The Court finally addressed the claim of conversion for taking the document and information from the dumpster. “Conversion is ‘an unlawful exercise of ownership, dominion, and control over the personalty of another in denial or repudiation of his right to such property.’” Id. citing Wash. Gas Light Co. v. Pub. Serv. Comm’n, 61 A.3d 662, 675 (D.C.2013). Items that are intentionally abandoned, or thrown away, however, cannot be subject to conversion since the act of abandoning is the intentional relinquishment of control. As the materials in question were undisputedly abandoned in the dumpster, no conversion had occurred. The Court also observed that the tort of conversion was not a proper vehicle to address the alleged conversion of the information on the abandoned documents, as the tort of conversion focused on goods. “Whatever other protections the law may offer to protect intangible property rights, the common-law tort of conversion is generally ill-suited to that end.” Id.

The Court of Appeals affirmed the decision of the trial court dismissing Greenpeace’s complaint in its entirety.