Privacy Law

Can hacked data support fraud suit against Ashley Madison? Plaintiffs want to cite lawyer emails

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Plaintiffs are seeking to cite hacked documents—including lawyer emails—to allege that the Ashley Madison dating website defrauded the public by creating fake female profiles to interest potential male clients.

Plaintiffs in the multidistrict security-breach litigation contend they are entitled to refer to lawyer communications as a result of the crime-fraud exception to attorney-client privilege, the National Law Journal (sub. req.) reports. The plaintiffs hope to use the information in a consolidated complaint due June 3.

According to the National Law Journal, the controversy “centers on an unresolved area of the law: whether litigants can use hacked data released to the public to fight their battles.”

In a March 10 court filing (PDF), plaintiffs’ lawyer John Driscoll asks the court for permission to cite media reports about the data breach and the use of fake female profiles, including reports about hacked communications between the website’s operators and their law firm, Barnes & Thornburg. Ashley Madison’s parent company is Avid Life Media.

Driscoll writes in the legal filing that journalists reviewed the leaked documents and describe in their articles the communications between Avid Life Media and Barnes & Thornburg “regarding methods of hiding the fake female profiles from Ashley Madison members.”

The National Law Journal points to a Gizmodo article that cited emails in which a Barnes & Thornburg lawyer suggested terms of service language to disclose that some of the profiles are fictitious. Gizmodo says the language was “surprisingly transparent” and much of it prevailed, despite pushback from Ashley Madison’s then-CEO.

Barnes & Thornburg did not respond to the National Law Journal’s request for comment. Its attorney, Dale Doerhoff, told the National Law Journal in an email that “it would be particularly inappropriate to speculate about a consolidated complaint that has not been filed” and declined further comment.

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