## Facts

- A federal court entered a temporary restraining order (TRO) in related litigation requiring certain persons, including H. Scott Dalley, to preserve computer data related to specified customer and financial records and to make media containing such records available for non-destructive copying by a consultant retained by the plaintiffs.
- Dalley, a computer consultant associated with a party to the federal litigation, kept on his personal computer data potentially relating to those business matters as well as confidential information of other clients and his own private medical and tax information.
- After the TRO issued, a law firm representing the plaintiffs in the federal case, along with the plaintiffs and a computer forensics consultant, went to Dalley’s residence to obtain data.
- Dalley alleged they used intimidation and misrepresented that the TRO authorized copying all information on his computers, presenting him with the choice of surrendering the computer/hard drives or permitting comprehensive copying.
- Dalley alleged he allowed copying because he believed he had no realistic option under the TRO; the process lasted about eleven hours and resulted in copying the entire contents of his hard drives, including intimate personal materials unrelated to the business records described in the TRO.
- Dalley sued in Michigan circuit court for intentional torts, including invasion of privacy by intrusion upon seclusion and related claims, based on the manner in which the defendants carried out the copying.
- The circuit court granted summary disposition to all defendants under Michigan Court Rule 2.116(C)(8) (failure to state a claim).

## Issues

1. Whether the existence of, and actions taken under color of, a TRO categorically barred state-law intentional tort claims arising from how the TRO was executed.
2. Whether the complaint stated a claim for intrusion upon seclusion where defendants allegedly copied all data on Dalley’s personal computer, including private information unrelated to the TRO’s purpose, using coercion or misrepresentation.
3. Whether consent and the “highly offensive to a reasonable person” element could be resolved against Dalley at the pleading stage under MCR 2.116(C)(8).

## Decision

- The Michigan Court of Appeals affirmed in part, reversed in part, and remanded.
- The court held the complaint adequately pleaded an intrusion-upon-seclusion claim and that dismissal of that claim under MCR 2.116(C)(8) was improper.
- The court rejected the argument that the TRO automatically insulated defendants from tort liability for the manner in which they executed it, particularly where the alleged conduct could exceed the order’s scope.
- The court held that alleged consent obtained through threats or misrepresentation could not be treated as dispositive on a (C)(8) motion.
- The court affirmed dismissal of certain other intentional tort claims that were insufficiently pleaded or not cognizable as alleged.

## Legal Principles

- A court order authorizing limited access to specified records does not, by itself, confer blanket immunity for conduct that exceeds the order’s scope or is carried out through coercive or deceptive tactics.
- Intrusion upon seclusion requires allegations of (1) an intentional intrusion, (2) into private affairs, (3) in a manner highly offensive to a reasonable person; unauthorized acquisition of unrelated personal computer data can satisfy these elements.
- On a motion under MCR 2.116(C)(8), courts must accept well-pleaded factual allegations as true; disputed questions such as the voluntariness of consent and whether conduct is “highly offensive” generally cannot be resolved on the pleadings when supported by plausible allegations.
- Consent is not a complete defense at the pleading stage where the plaintiff alleges it was induced by coercion, threats, or material misstatements about legal authority.

## Conclusion

The court allowed Dalley’s intrusion-upon-seclusion claim to proceed because he plausibly alleged that defendants, while invoking a TRO, obtained and copied the full contents of his personal computer through coercion or misrepresentation and thereby intruded into highly private matters beyond what the order authorized.


Dalley v. Dykema Gossett, PLLC, 287 Mich. App. 296, 788 N.W.2d 679 (Mich. Ct. App. 2010)