Eighth Circuit Finds Rule 403 Violations in Driver’s Protection Privacy Act Case
Federal Rule of Evidence 403 states that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
It’s exceedingly rare that an appellate court will find that a trial judge improperly allowed the admission of evidence that should have been excluded under Rule 403. But that’s exactly what happened in the recent opinion of the Eighth Circuit in Krekelberg v. City of Minneapolis, 2021 WL 1044981 (8th Cir. 2021).
In Krekelberg, Officer Amy Krekelberg of the Minneapolis Police Department (“MPD”) sued more than forty local government entities and employees for, among other things, violating the Driver’s Protection Privacy Act (“DPPA”) based on 74 impermissible accesses of Krekelberg’s driver’s license data by 58 MPD police officers. The jury eventually “returned a verdict for Krekelberg, awarding both compensatory and punitive damages.”
On appeal, the defendants claimed that the trial judge violated Rule 403 by (1) admitting evidence of 850 accesses that were not committed by the 58 MPD officers whose alleged DPPA violations were at issue; and (2) admitting evidence of harassment, retaliation, and failure to investigate by the City. With regard to the first issue, the Eighth Circuit agreed, holding that
At most, the 850 accesses were minimally probative of the emotional distress Krekelberg experienced from the 74 accesses actually at issue in the case. About 500 of the 850 accesses were by persons who were not part of the MPD and whose accesses were time-barred or who had settled. The other 350 time-barred or settled claims related to accesses by officers in the MPD whose conduct was not at issue in the suit. None of these 850 accesses should have been considered in the jury’s damages calculation, which should have been based solely on the 74 non-time-barred, unsettled access claims….To allow Krekelberg to recover emotional damages based on all 850 would be to allow her to recover damages based on settled or dismissed claims.
On the other hand, this evidence was extraordinarily prejudicial and risked confusing the jury because it took the focus off the 74 accesses from December 2009 to 2012 at issue in the suit and onto the 850 time-barred accesses from 2003 to December 2009, which could not be considered as damages. Krekelberg testified that about half of the one thousand accesses “c[a]me from Minneapolis” and that they were conducted by more than two hundred MPD officers, which tended to portray the City as a bad actor. Krekelberg testified that learning about all these accesses, especially those performed by her coworkers at MPD, caused her emotional distress. Admitting into evidence such a large number of accesses by persons whose conduct was not at issue in the suit, many of whom worked for the City, is “inflammatory”…and likely to “divert the jury’s attention from the real dispute in the case”—namely, the 74 accesses….Therefore, it was an abuse of discretion to admit this evidence, as it would have tended to increase the amount of damages on an impermissible basis.
Moreover, the Eighth Circuit agreed on the second issue as well, concluding that
Krekelberg points to no evidence that the alleged harassment, retaliation, and failure to investigate were caused by the persons who accessed her data….Thus, this evidence was not probative of any of her damages.
This evidence was also unfairly prejudicial. The retaliation, harassment, and failure-to-investigate evidence translated into a major and irrelevant trial theme: the City is a bad actor. Approximately a third of Krekelberg’s opening and closing statements were devoted to this irrelevant theme. During the trial, Krekelberg testified that “since trying to hold people accountable,” she had been “excluded from things” and had not been “backed up on calls,” causing “some sleepless nights, some depression.” Unknown persons took her nametag off her work mailbox so that it fell on the floor and was trampled numerous times. She lost part-time work because an officer said she “was trouble.” Someone filed an internal-affairs complaint against her, and no one at MPD ever asked her about her side of the story. On two separate occasions after filing suit, cars were parked in front of her house, which caused her constantly to fear that something was going to happen to her children or her. Krekelberg also testified that the City failed to hold accountable the officers who performed impermissible accesses, promoting rather than punishing them. And Krekelberg introduced evidence that the City failed to investigate the accesses thoroughly and fairly, which her attorneys portrayed as a “coverup.”
(h/t Derek Muller)
-CM