IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

SOURCEBOOKS, INC.,

Plaintiff,

v. CIVIL ACTION NO. 1:11-CV-07738

The Honorable Amy J. St. Eve

ANITA CLENNEY,

Defendant and Third-Party Plaintiff,

v.

REED SMITH LLP and

DAVIS WRIGHT TREMAINE LLP,

Third-Party Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

COUNT III OF DEFENDANT’S COUNTERCLAIMS

AND DEFENDANT’S THIRD-PARTY COMPLAINT

BACKGROUND

This case arises out of a dispute over a publishing agreement (“Agreement”) between 

publisher Sourcebooks, Inc. (“Sourcebooks”) and author Anita Clenney (“Clenney”). When the 

undersigned counsel for Sourcebooks filed the Complaint on October 31, 2011, it attached the 

Agreement as Exhibit A, and the last page thereof included Plaintiff’s social security number. A 

telephone number also was set forth therein, but there is no rule or statute requiring redaction of 

that information. Sourcebooks obviously had nothing to do with this, and neither did the Davis 

Wright Tremaine LLP (“Davis Wright”) law firm. 

When counsel noticed this error the next day, he immediately caused to be contacted the 

Court’s chambers in the morning of November 1, 2011 and Exhibit A was sealed. The exhibit 

had been on the CM/ECF system for less than 24 hours. Unbeknownst to counsel (or 

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Chambers), the District Court Clerk’s Office (contrary to the seal this Court had placed) had 

posted a copy of the Complaint and unredacted Exhibit A on a link from the Northern District’s 

website that provided access to recently filed complaints. Undersigned counsel was not aware 

that the Clerk’s Office maintained such a link.

The first undersigned counsel heard of this link was from Clenney’s counsel, when he 

sent, not a phone call, but rather a three-page letter dated November 18, 2011 noting this fact. 

The letter recounts that Clenney’s counsel waited at least one day, and perhaps longer, before 

contacting undersigned counsel to flag this issue. Upon receiving this letter, undersigned 

counsel immediately left a voicemail with Clenney’s counsel inquiring into where the link could 

be located, and received in return an email referencing the Clerk’s link. Undersigned counsel 

again promptly contacted this Court’s chambers and thereafter the District Court’s Clerk’s link 

was removed. Then, undersigned counsel left another unreturned voice mail with Clenney’s 

counsel requesting a telephone conference to discuss this issue and potential steps that could be 

taken to address the same. 

Since then, undersigned counsel has searched or caused to be searched various resources 

including the LEXIS and WESTLAW docket and filing services, along with general internet 

searches (utilizing browsers such as Google and Yahoo!), and has been unable to locate a copy 

of the unredacted exhibit anywhere. Undersigned counsel also has asked Clenney’s counsel to 

let him know of any instances of the use or attempted use of the social security number, and as 

recently as the December 19th in-chambers counsel meeting with Magistrate Judge Cox to 

schedule a settlement conference, Clenney’s counsel noted to Magistrate Judge Cox that there 

have been no such uses. Since then, Clenney’s counsel has not apprised undersigned counsel of 

any such uses.

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Nonetheless, Defendant has claimed that “an analysis of the link posted on the Northern 

District of Illinois’ website reflects that the original complaint, including the unredacted contract 

with [Defendant’s] Social Security number . . . has been downloaded” in various countries. See 

Third-Party Compl. ¶ 21. But, as this Court inquired at the initial status conference, no person 

can glean such information based upon the fact of the link alone. We are aware of no basis for 

that allegation to have been made without a request to the Clerk’s office for information about 

the internet protocol (“IP”) addresses that clicked on the original link. The only entity with that 

information is the Clerk’s office.

Based upon these circumstances, Defendant has now alleged:

(a) A claim against Sourcebooks entitled “Breach of Confidentiality” (Counterclaim ¶¶ 74-

91), which does not allege the elements of any specific cause of action; and

(b) third-party claims against Reed Smith LLP and Davis Wright Tremaine LLP also entitled 

“Breach of Confidentiality” which, again, do not allege the elements of any specific 

cause of action.

While unfortunate that the social security number initially and inadvertently was not 

redacted, the fact is that Reed Smith promptly contacted the Court to seal the exhibit. No copies 

of that exhibit have been located anywhere else, and there have been no uses of the social 

security number. Simply put, Defendant has not and cannot allege any cognizable damages.

There do not appear to be any prior decisions in which claims have been made, let alone 

permitted to stand, against a client for such an issue. Here, there simply was an inadvertent filing 

that counsel addressed the next day by working with the Court to seal the exhibit. There is, 

however, absolutely no basis to assert claims against the client, Sourcebooks, or third-party 

defendant the Davis Wright law firm. As set forth below, there also is no legal basis for a claim 

against Reed Smith because Defendant has not alleged a proper cause of action, and even if she 

had, she has not and cannot plead actionable damages. Accordingly, Count III of Defendant’s 

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Counterclaims, and Defendant’s Third-Party Complaint against Davis Wright and Reed Smith, 

should be dismissed with prejudice.

ARGUMENT

I. The Court Should Dismiss The Counterclaim Against Sourcebooks

While Defendant makes the unsubstantiated allegation that Sourcebooks “attached its 

contract with Clenney to the complaint as an exhibit” see Counterclaim ¶¶ 47-61, Sourcebooks, 

of course, had nothing to do with the procedure of filing the Complaint and attached exhibit 

because it does not have CM/ECF access. Undersigned counsel oversaw the filing. We could 

find no law providing that a client is responsible for an inadvertent disclosure of the nature 

described herein. To the contrary, in circumstances such as this, no claims have been alleged 

against clients. See, e.g., Martin v. AT&T Wireless Corp., No. 2:07-CV-01127, 2007 WL

3010561 (E.D. Cal. Oct. 15, 2007) (noting inadvertent mistake of counsel and lack of basis for 

claim against both the defendants and counsel); see also Hanks v. Shinseki, No. 3:08-1594, 2010 

WL 3000835, at * 4 (N.D. Tex. July 28, 2010) (inadvertent, unredacted filing resulted in 

direction to counsel regarding Rule 5.2(a)).

II. The Court Should Dismiss The Third-Party Complaint Against Davis Wright

The Davis Wright firm also had nothing to do with the filing of the unredacted 

Agreement. While it is listed as “Of Counsel” in the case, it did not take part in the procedure of 

compiling the exhibits and electronically filing the Complaint (and prior to the filing in 

connection with this motion, it has not appeared in the case). Accordingly, there also is no 

basis for a claim for filing an unredacted exhibit against Davis Wright and the Third-Party 

complaint against it should be dismissed.

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III. The Court Should Dismiss The Third-Party Complaint Against Reed Smith

A. There Is No Basis For A Claim Against Reed Smith

Defendant alleges a third-party claim entitled “Breach of Confidentiality” which 

variously refers to the Illinois Consumer Fraud and Deceptive Business Practices Act (¶ 78 of 

Counterclaims), the Illinois Personal Information Act (id. ¶ 79), and Rule 5.2 of the Federal 

Rules of Civil Procedure (id. ¶ 81). However, none of the elements of those claims specifically

are alleged and, in any event, no cause of action lies under those references because Defendant 

has not and cannot claim any damages.

a. The Illinois Consumer Fraud Act

The Illinois Consumer Fraud Act requires as elements: (1) an unfair or deceptive act or 

practice, (2) intent that the other party rely on the practice, (3) that the practice occur in the 

course of conduct involving trade or commerce, (4) that the practice proximately cause damage, 

and (5) that the other party suffer actual damage. See, e.g., Galan v. Northwestern Mem. Hosp., 

888 N.E.2d 529, 535 (Ill. App. Ct. 2008) (dismissing claim); see also Siegel v. Shell Oil Co., 612 

F.3d 932, 935 (7th Cir. 2010). Defendant does not attempt to plead such elements. A separate 

section of this act provides that a person may not “intentionally communicate or otherwise make 

available to the general public” a person’s social security number. 815 ILCS 505/2RR(a)(1). 

Defendant does not allege that the inadvertent disclosure was intentional. Although not 

specifically alleged, Defendant must be asserting that her information was “otherwise made 

available to the general public.” While no Illinois decision interprets the Illinois Consumer 

Fraud Act in the instant context of a federal court filing, cases from other courts involving a 

similar statute have held that the inadvertent court filing of a document containing a social 

security number (which document was then sealed) does not state a claim because, among other 

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reasons, the filing is not available to the general public, there is no intent, and the possibility of 

later use is not a recoverable damage. See, e.g., Finnerty v. State Bank & Trust Co., 687 S.E.2d 

842 (Ga. Ct. App. 2010) (dismissing such a claim and also federal HIPPA claim). 

Moreover, Illinois courts specifically have held that alleged damages due to increased 

risk of identity theft subsequent to an inadvertent disclosure (other than a court filing) are not 

actionable under the Consumer Fraud Act. See, e.g., In re Michaels Stores Pin Pad Litigation, --

- F.Supp.2d ---, No. 11 C 3350, 2011 WL 5878373, at * 6 (N.D. Ill. Nov. 23, 2011) (“under the 

ICFA, a plaintiff does not suffer actual damage simply because of the increased risk of future 

identity theft or because the plaintiff purchased credit monitoring services”). Similarly, other 

courts addressing data theft allegations have held that future damage allegations such as those 

made here either did not establish Article III standing or did not establish actionable harm. See, 

e.g., Hammond v. BNY Mellon, No. 08 Civ. 6060, 2010 WL 2643307 (S.D.N.Y. June 25, 2010) 

(collecting cases, dismissing complaint). Finally, as a matter of pleading, the Third-Party 

Complaint fails to allege that the matters discussed herein involved trade or commerce, that the 

matters at issue implicate consumer concerns (see, e.g., MacNeil Automotive Prods., Ltd. v. 

Cannon Automotive Ltd., 715 F.Supp.2d 786, 793 (N.D. Ill. 2010) (dismissing claim)), or that the 

actions constituted intentional communications to the general public. 

b. The Illinois Personal Information Act

There is no private right of action under the Personal Information Act, 815 ILCS § 530 et 

seq., and instead any such claim would lie only under the Consumer Fraud Act. See Best v. 

Malec, No. 09 C 7749, 2010 WL 2364412, at * 7 (N.D. Ill. June 11, 2010). Accordingly, there is 

no claim under this act for the same reasons no Consumer Fraud Act Claim may be stated. 

Otherwise, while there is a dearth of case law interpreting this separate provision, the statue 

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refers to “data collectors” (815 ILCS 530/5), and then notice of disclosures by such data 

collectors (815 ILCS 530/10), and the Third-Party Complaint fails to allege that Reed Smith is a 

“data collector” and does not provide any further allegations that this statute applies to the facts 

alleged. 

c. Fed.R.Civ.Proc. 5.2(a)

An alleged violation of Rule 5.2(a) does not give rise to a cause of action. See, e.g., 

Dunbar v. O’Neill, No. 8:10-2510, 2010 WL 5158534, at * 2 (D.S.C. Nov. 23, 2010) 

(dismissing claim based upon rule). Here, there was an inadvertent filing that was addressed less 

than 24 hours after it occurred. There certainly was no effort to use the social security number 

for any improper purpose, or to pressure Defendant with the number in any manner. Under the 

facts presented, undersigned counsel respectfully submits that there is no basis to find any

misconduct despite the inflammatory allegations made. See, e.g., Martin, 2007 WL 3010561, at 

* 2.

CONCLUSION

Accordingly, for the foregoing reasons, Defendant’s Counterclaim Count III and ThirdParty claims against Reed Smith and Davis Wright should be dismissed with prejudice.

Dated: January 11, 2012 By: /s/ Douglas A. Albritton 

Douglas Alan Albritton (ARDC 6228734)

REED SMITH LLP

10 South Wacker Drive, 40th Floor 

Chicago, Illinois 60606-7507

Phone (312) 207-6550

Fax (312) 207-6400

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CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that he served the foregoing Memorandum 

of Law in Support of Motion to Dismiss Defendant’s Counterclaim Count III and Third-Party

Claims by means of the Court’s CM/ECF System, which causes a true and correct copy of the 

same to be served electronically on all CM/ECF registered counsel of record, on January 11, 

2012. 

/s/ Douglas A. Albritton

Douglas A. Albritton

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