Abstract:
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Viewed in light most favorable to Romero, the undisputed facts do not raise a genuine issue of material fact that Romero stated a claim for intrusion upon seclusion. Furthermore, there is no evidence that Windbucket’s actions constituted such egregious conduct that would warrant greater sanctions than those levied by the district court. Therefore, WIndbucket respectfully requests this Court affirm the lower court’s decision.
This Court has recognized the tort of intrusion upon seclusion stated by the Restatement (Second). Thus, Romero must prove the following elements: (1) Windbucket intentionally intruded into Romero’s seclusion without authorization; (2) Windbucket intruded upon a private matter; (3) the intrusion was highly offensive to a reasonable person, and; (4) the intrusion caused Romero mental or physical anguish and suffering. Romero failed to prove all of the elements.
Windbucket did not commit an intentional intrusion, according to the Restatement. In order to prove an intentional intrusion, Romero must prove that Windbucket committed an affirmative act, constituting an actual intrusion. Section 652(B) of the Restatement does not recognize claims for reckless or negligent intrusions. Because Romero failed to demonstrate any affirmative act constituting an actual intrusion on the part of Windbucket, he failed to prove an intentional intrusion. Furthermore, before engaging in Eden, Romero voluntarily signed an agreement, which allowed Windbucket to alter the game, including the creation of Voyeur mode. Romero’s voluntary acceptance of such an agreement further negates a finding of an intentional intrusion. Even if the Court finds an intrusion occurred, it was committed by third party, LEETDUDE. Windbucket is not liable for an intrusion committed by LEETDUDE since Romero failed to prove Windbucket provided substantial or material assistance to LEETDUDE.
Romero did not prove a reasonable expectation of privacy existed in Eden or that a highly offensive intrusion occurred. First, Romero could not establish a subjective expectation of privacy in Eden because he should have known LEETDUDE’s actions were possible. Even if Romero had a subjective expectation of privacy in Eden, he failed to demonstrate that society would recognize his expectation as reasonable. Because Eden is essentially a public forum in which Romero voluntarily participated and communicated with unknown parties, he could not establish a reasonable expectation of privacy. Lastly, Romero failed to show that a reasonable person would find spying on a fictional character strongly objectionable, thereby precluding a finding of “highly offensive” behavior.
Romero cannot show that the alleged intrusion proximately caused the requisite anguish and suffering. The facts indicate that any harm resulted from LEETDUDE’s postings on the Zombies of Eden website and not from the intrusion itself. Thus, the alleged intrusion and any harm suffered by Romero are only remotely linked.
Romero has failed to demonstrate that Windbucket’s actions were so egregious that a default sanction or an adverse inference are warranted. In determining whether a default sanction is appropriate, courts should consider: (1) willful delay; (2) whether the moving party was prejudiced; (3) whether the party affected by the sanction was warned that a default sanction was possible; and (4) whether less drastic sanctions were first imposed or considered.
Windbucket did not willfully delay the proceedings. To warrant a default sanction the fault must be that of the party, not his attorney. Windbucket’s initial delays were caused by its attorney’s mistake, not by willful conduct. Furthermore, Romero is not prejudice because the identity of LEETDUDE is a peripheral matter and does not affect the merits of Romero’s action against Windbucket. Additionally, there is no evidence on the record that the district court, in its considerable discretion, chose to issue a monetary sanction as an alternative sanction.
An adverse inference instruction is also inappropriate. An adverse inference is only warranted when the following three conditions are all met: (1) the party with control over the evidence had an obligation to preserve it; (2) the records were destroyed with a culpable state of mind; and (3) the missing evidence is relevant to the party’s claims. Windbucket has a reasonable retention policy and maintained the policy without any reason to believe the evidence would be relevant. Furthermore, Windbucket acted in good-faith when it removed old internet logs. Finally, Romero did not produce sufficient evidence that a reasonable trier of fact could find the identity of LEETDUDE relevant to Romero’s intrusion upon seclusion claim against Windbucket.
Even if the district court should have imposed sanctions any error was harmless because Romero does not have a valid claim for intrusion upon seclusion. For these reasons, this Court should affirm the Fourth Circuit Court of Appeals and dismiss Romero’s action.
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