tolling creating a new burden for plaintiffs to meet here the minnesota department of public safety through one of its directors misled just a camp sure into believing that only one person had access to a driver's license information  two thousand and eight when in fact at that point six hundred law enforcement personnel throughout the state had looked up by two thousand and thirteen she and her husband looked up thirteen hundred times just a couple vide extraordinary circumstances of the department lulling her into an action and a reliance on the department's multiple assurances that the access of jessica was isolated and the system would be monitored for misuse in the future was reasonable jessica provided evidence of her diligence in twice contacting  two thousand and eight to express her concern and find out what was going on and then upon learning the extent of thing until two thousand and thirteen because she was assured that there was nothing that she had to do that it was an isolated incident it was portrayed as an isolated naught she wasn't that you know reason to request a nod at the time she was told by patricia mccormack who's the director of the driver vehicle services and driver vehicle services is the solar positon in the state of minnesota of all drivers license information information or suspicion that this was going on absolutely not your honor the first case where this was brought was up with her as any lawsuit minnesota about this type of conduct was in two thousand and eleven by and rasmussen so there was nothing in two thousand and eight about that there was no news about it  even it was just a cancer testified she didn't know anything about it she was told by that this was an isolated incident in the record even after that conversation she did some follow up investigation herself on her own and then with the assistance of i think the general counsel from the television station that she did take action after that conversation that's how the defendant appellee is portrayed but that's not what the record shows and at the very least disputed what she did was a few weeks after her first contact with the director mccormick she received notice from her bank that there was some strange activity with her account and since it was so close in time for it with her initial discussions with tricia mccormick she went back and contacted her again and said what's going on are these related she then spoke to her employer's attorney her employers hubbard broadcasting and then ploy is attorney who deals with security issues for employees there wrote a letter to t c f and to patricia mccormack that was all related to the one access that they were informing her about when they were actually sitting on six hundred accesses but they didn't inform her about it was the practice of d v s at the time this is from testimony of a unit unit  wasn't a broader access to them it was also the practice is there was a concerned citizen that would do a broader examination of what was going on but they didn't inform her of any of that in all the but d v s knew about six hundred doing an investigation number her behalf it was only about the one access they knew about that's not something that should be weighed at summary judgment i'm sorry so your point is what you're saying is in viewing the light the facts in the light most favorable to your client what happened there was that she and the lawyer were following up on this single access that mccormick at again if i absolutely have them in the letter that she got from mccormack talks about an employee's misuse appropriate steps were taken and it concludes with we take our responsibility for data security very seriously and will continue to monitor employees what about was there evidence that she knew about a television show through her station had presented some information on the air about something like this data the yes the defendant well i mean i would say no the defendants presented some evidence that there were some stories on her there was a story about one one or two people who had been disciplined for looking up a bunch of people she wasn't one of the people that did she deny knowing about that no i think she knew about that one story but the fact that somebody else was violating other people's data and she didn't receive notice that she was one of those people wouldn't give her reason to conclude that she was one of those people the one time that she knew about her being accessed d v s did contact or so there's no reason for that and then they they there's all these other stories that maybe were broadcast when she was working or and other stations but the testimony from jessica hampshire if she didn't hear those she when she was on the air she was listening for  from her producer she wasn't concentrating what else was going on the newscasts but anyway that's weighing evidence that's when the cross credibility for testimony this was a summary judgment determination not an evidentiary hearing well so are you relying on something the department did or you just saying she lacked knowledge of her claims and that's enough to justify tolling the test and tolling of course as you know is reasonable diligence maximum diligence reasonable diligence by the individual and extraordinary circumstances what we're saying is the extraordinary circumstance here one of them is that she was lulled by the department it now it doesn't have to be an intent to deceive the department doesn't have to intend to see her just has to have  misled her into thinking there was only one access but so your argument does hinge on whether that was a misleading letter not just a misleading letter there were two conversations afterwards part misleading set of communication absolutely doesn't have to be intentionally misleading that would be a stoppel this is equable tolling that we're seeking and it was misleading i mean here we have testimony from extensive audit and jessica when asked if t v s would have checked to make sure there weren't other inappropriate axises of a local t v t v news reporter with concerns as i think we tried to make sure that we had checked all that out to make sure that there wasn't incident yeah that's what i would have said so there we have the director of t v s the one person that just a cancer can get this information from saying i said it was an isolated incident now she backtracked on that at some point but she said that at her deposition so we sought to didn't for the court district court to disregard that you think that that letter a reasonable person to think that she had checked all law enforcement agencies and that there was no we accessing by anybody else would lead a reasonable person to think that this is an isolated incident just like was portrayed that there weren't any other axises well the question is what is isolated incident well isolated in what sense well i don't know what else it could mean besides that there aren't other mean i'm calling because you told me somebody accidentally d v s employees well there were two of those she only told them about one if you want to limit it to state actors there are twenty of those she only told him about one but there were six or five hundred eighty other people so i mean she knew about two she testifies left and right she knew about two she only told just like hampshire about one of them i don't see how isolated incident could be otherwise be portrayed as that as  i'm telling you that she's saying i'm concerned i'm calling you after i got this letter i'm concerned about it what's going on what to do i have to worry about and she says nothing it's it's an isolated incident i mean you don't see it you don't think i slate incident could refer to d e v s employees well if it did then there were two and schilling told her about one that's the one we cite that many times in a brief so i mean what's the relevance of the second employ why but i don't know they had both happened before the conversation with mccormack but how can this be how can can just when when when who interrogated miss mccormick what did what it she say about down on why you know i think she said i didn't think it was a problem so we didn't tell her about it but the point is why is isolated incident being construed against a non movement she didn't even remember she said i probably would have said i slated it all it ok so one versus two is the mixed up well but the court by the district court would have made a reference to intent to deceive which was part of your attack on appeal she was very clearly the district court on appeal was very on its in its order on page twenty four very distinctly says i'm denying a full tolling and the first thing she references and spends a whole paragraph on is the intent to deceive issue so that is clearly not in a sample issue but i was counsel said it's not surprising the way cases saying that we don't require procedure in all articulate written articulation that's rather relevant if intent to deceive was a major issue argued that this record in the district court had a paragraph so i'd like to reserve the rest of my time but wouldn't intentional deception be an extraordinary circumstance with intent to deceive it doesn't matter if it was intent or not it was a it was deceptive because they misled her so thank you a few points first of all frankly the court got it right the district court got it right and we'd asked the court to affirm the denial of equitable tolling as the record shows the district court initially had found that there needed to be discovery  equitable tolling and had initially denied the rule twelve motion and allowed a well developed record to then be presented to the court and the court looked at that factual record very carefully and the order is well reasoned and based on that factual record to hit a few points first of all the actions after the phone calls with mccormick are important to look at here and i think that the panel has recognized that in some ways this is very much a case took kind of look at the time line those phone calls were early  and when miles searched the news gripped at her news station and found a story from january fifth of two thousand and eight regarding d p s employees looking at four hundred records from their home computers this is after the phone conversations after even if it's accepted in the light most favorable that there had been this isolated incident comment she's now on notice to do some further investigation and this court has recognized in several equitable tolling cases that when that plaintiff is on notice to do some further investigation equitable tolling is not appropriate but frankly that's enough why she finds the issue with the bay that's all resolved and she relies on that assurance that there's no more it the fact that it was that she took the step to find this new story shows that there was some interest in looking further into what's happening additionally she received and was privy to a tip what has been withheld under journalist privilege but mentioned her mentioned looking in further into d p s some did she deny knowing the one where she did not deny knowing that she had method that she had received that it's documented in an e mail between her and the general counsel which would be at the appendix b five four five five five seven and five twenty one addressed the correspondence received for the e mail it's black dots we don't know what the content is but in any regard it there's something to trigger a need to look further regardless of the isolated incident or the accessed by the d v s employee and that's key because it takes away from just simply relying on what mccormack said because there's independent action that miles took that's in the record and can be just objective lee viewed and which is frankly what the district court did when it took another look at this also to clarify for an answer the court's question in terms of the question about isolated incident and the one t v s employee mccormick was asked about that in her deposition at a four four nine in the appendix and she explained and we footnoted in our brief that while there had been two d b s employees that looked at miles when they were looking at these doing these internal audits of what employees had looked at they determined only this one was a breach that's why the letter says an employee referencing one s employee and it's and she there's nothing hidden there there's only a notification if there was something improper so she wasn't hiding anything by only sending a letter about  employee improperly accessing additionally that letter is important to look at and the letter itself is that a four twenty three it's also in the a dumb dumb looking at the plain language of the letter says d e v s employee the reading the letter as a whole there's there's no ambiguity to it it's talking about what this department is going to do with its one employee well wouldn't if you really look at the letter reasonable person do you think a reasonable person would understand that the director of the repository of information d e v s wouldn't have sort of understanding or knowledge or access to all of the database and then therefore would know about any and all improper or impermissible access and as i'm thinking about it from the standpoint of just somebody receiving this letter and sort of you know out who it might cover and who might not like it covers the minnesota state patrol but it doesn't cover the accesses that curt here at the i wonder how how you view that yes your honor at looking at  the link the plain language of the letter it's on letterhead that yes initially says minnesota department of public safety there are the are offices that are are agencies with listed on the left side of the letter which again is that a fo twenty three and then at the top as driver and vehicle services and then the actual content of the letter refers to driver and vehicle services which is one of the agencies listed in the letter a reasonable person looking at this letter and just reading what mccormick wrote what i understand that it's talking about an internal audit conducted by driver and vehicle services revealed the unauthorized evening of your driving record by an employee and then it talk about what it would do with the employee but to support how miles viewed that the court can look further when she was consulting with the general counsel to look into that they exchanged e mails where she got a chance to review his drug letters to t c f bank and to mccormick she never asked him to change any reference to a d v s employee those are in the record at eighty five forty one where she made no change to the letter that he had sent  and then in both of those letters reference a d v s employee why that is key is because there is absolutely nothing in this record to show that d e v s had knowledge of the city and county law enforcement accesses nothing the only thing that shows those accesses is an audit that was pulled in two thousand and thirteen and i encourage this panel to on the record where the knowledge is from d v d s because it doesn't exist there as the deposition transcript from him jacobson shows with her deposition was in two thousand and fifteen at a stick seventy three she explains how these audits are polled and in case the court was interested i know the court has had these cases for the last six years now but a person a human being has to actually take a step to pull the audit and as jacobson testified she has to go into the minnesota i t program or whatever she uses to actually access it she has to have the driver's license number of the subject so there's nothing in the record to show that she had just a camp chores driver's license or just compiles driver's license and entered in or that mccormick did that back in two thousand and eight and then it generates a report then it gets moved into an excel spreadsheet so there are human actions that have to actually take place to generate an  that looks like the only audit that you have in this record which is from two thousand and thirteen and this is key because the fact that that data that on some and in two thousand and eight does  newell that city and county law enforcement had done the six hundred accesses there's nothing in the record to establish that and that that necessary though or is that a question of what whether a reasonable person would have been misled by the can patients to think that well being told there was nothing to look for that's a good question is it necessary  questions it's not necessary to to look at whether whether there was knowledge of that or that anybody knew of that at that time because it's not under shows miles was on notice to do some further investigation again now is on notice there may be a potential claim she didn't have to know all the six hundred she didn't have to know exactly at that  point i just think her argument is d b s the lady told me that this was an isolated incident and therefore i didn't have to look further because somebody from the government told me that in  fact that they've checked in there's nothing further so is that a reasonable thing for her to believe or do you think that's an unfair characterization of the communications well even if we accept as true that mccormick's that isolated incident the record shows that miles didn't just sit idly by after that there were many things that happened that those two conversations were in may and early june yet she still went and looked for this new script from january of two thousand and eight she still consulted with counsel she still looked on line herself to kind of look and see what was going on with the  additionally her contemporaneous notes from that conversation with mccormack what's are at eighty four ninety and a four ninety nine talk about how she could get a court order or  subpoena so objectively looking at the record even if mccormack said isolated incident it is inconsistent with the actions that miles actually took and again but what do you think isolated incident it's the d v s employee so the she is real she mccormick it's clear from the record has knowledge about the d v s employee who was disciplined and so when she's explaining isolated incident if she said that but just accepting it as is true if she said that reading the letter on its face it's talking about what mccormick knew of this one look up and what is key here is because of that these appellants are no different than any other d p p a plaintiff in the court recognized th hunt's the district court of minnesota was especially concerned about the equitable tolling argument being an end run around what the eighth circuit has already determined is in a cruel rule not a discovery rule on the statute of limitations and by treating a plaintiff's mere lack of knowledge of an injury in the absence of some x turn a factor that stood in their way first to be sufficient for record of all tolling would create that end run around the statute of  difference from other d p a plaintiffs of why should the appellant's get equitable tolling when nobody else has received additionally there's no legal basis for corey camp shor to obtain equitable towing there's there's nothing cited to support that just because he was in a relationship with her he's no different than the other d p p a plaintiff says while additionally the district court did properly especially based on retention periods there would be substantial prejudiced to the appellee is so therefore we would request that the court affirm the denial of equitable tolling thank you thank you facts are supposed to determine in summary judgment if they're disputed i see my time is up or thank you