In TOTO, the plaintiff is required to disclose personal information about himself in order to obtain a dismissal for the very reason that the information is private and protected by law. The plaintiff is then entitled to recover damages only if the defendant fails to disclose such personal information. In TOTO, the plaintiff is not required to disclose any of his personal information before the defendant is served with the complaint. Even if the plaintiff files the complaint in state court, the claim must be treated as a state law claim, and TOTO will not apply unless the plaintiff can prove the statute of limitations in the state in which he filed the complaint.
In recent years, more recent examples on the Web. One well-known case is that of an Arizona real estate broker who was convicted of money laundering and other charges (although ultimately cleared of all charges). While serving the motion to dismiss in state court, the lawyer inadvertently disclosed a personal opinion about another person. The state court dismissed the complaint against the broker on the ground that it was not privileged communication, because the other person had consented to be interviewed, and that it could have been disclosed without violating any privilege.
TOTO challenges that the state court did not properly apply the qualified language of the statute of limitations in TOTO. In TOTO, one member of the panel opined that the mere advising of an opinion is not actionable within the statute. Such advice, according to the panel, is protected by absolute personal privacy. It is important to remember that TOTO itself does not advise individuals to disclose any of their personal information. If one were to do so, he could be prosecuted under the federal False Claims Act.
TOTO’s lawyers argue that the Panel failed to distinguish between advice or recommendation and actual disclosures of information. They say that because TOTO’s employees are only contractors, they cannot be held responsible for disclosures of confidential personal information. They further argue that the Panel is not entitled to review the merits of the complaint, because it lacked subject matter jurisdiction. This argument is somewhat irrelevant, as we have noted many times before in this Article. In fact, the Panel did not even address the merits of the complaint, and the complaint was dismissed after the State Court judge ordered it dismissed on the basis that it waived its right to trial by admitting evidence.
TOTO believes it is the only case ever heard in state court that failed to state a claim to privilege. In most cases, the state court law protects the individual’s rights to privacy of communication. However, TOTO contends that it can show that the company’s employees advised a client to keep his communications with TOTO to himself and then later used that information to prosecute the case. It says it will be difficult, if not impossible, for the client to recoup damages from this action. In TOTO’s view, it is better to settle than to fight a case in which the plaintiff’s confidential information was disclosed.
TOTO also points out that another case it has filed against another environmental agency has resulted in an appeal to the state court. In that case, the agency was accused of improperly maintaining records. After an investigation, the state court found that the agency had in fact maintained the proper records. Because the appeal raises questions about the scope of attorney-client privilege, TOTO says it is considering an appeal. In TOTO’s view, if one party is guilty of crimes against the client, there is no need to shield that person’s communications from the public.