GLEICHER, J.
In this action alleging several intentional torts, plaintiff, H. Scott Dalley, appeals as of right a circuit court order granting defendants summary disposition pursuant to MCR 2.116(C)(8). We affirm in part, reverse in part, and remand for further proceedings.
This case finds its genesis in a dispute between an insurance company and its agent. On April 13, 2004, defendants Lincoln National Life Insurance Company and Lincoln Financial Advisors Corporation (collectively Lincoln) sued Rodney Ellis, a Lincoln agent, and Lucasse, Ellis, Inc. (Lucasse), a company partially owned by Ellis, in the United States District Court for the Western District of Michigan. Lincoln's federal court complaint alleged fraud, breach of fiduciary duty, conversion, breach of contract, and tortious interference with business expectancies or relations. Defendants Dykema Gossett P.L.L.C. (Dykema) and John Ferroli, a Dykema member, represented Lincoln in the federal court action.
On April 15, 2004, a federal judge entered a temporary restraining order (TRO) prohibiting Ellis, Lucasse, and instant plaintiff Dalley from "deleting, erasing, destroying, shredding, secreting, removing, modifying, overwriting, replacing, or `wiping'" any computer data or files containing information related to Lincoln's customers and financial records. The paragraphs of the TRO directly relevant to plaintiff's present intentional tort action provide as follows:
On April 19, 2004, Lincoln's agents served plaintiff with the TRO in his Kentwood apartment, and with the assistance of personnel employed by defendant Guidance Software, Inc. (Guidance Software), copied all the data from all of plaintiff's computers. The events surrounding defendants' entry into plaintiff's apartment and the copying of his computer data form the basis of the instant lawsuit.
Plaintiff commenced this action on April 18, 2007, by filing in the Kent Circuit Court a complaint against Dykema, Ferroli, Lincoln, and Guidance Software.
The amended complaint avers that in April 2004, plaintiff worked out of his apartment as an independent computer consultant for several small businesses, including Lucasse. The computers in his apartment provided the means to generate his livelihood and held confidential information concerning all his clients, such as their user identifications and passwords. Plaintiff, who suffers from AIDS, also stored on his computers highly personal information, medical records, photographs, and tax returns.
On April 19, 2004, plaintiff's doorbell rang and someone requested that plaintiff permit entry into his apartment building. Because plaintiff was not expecting visitors, he did not respond. At approximately 11:00 a.m., loud pounding on his door "jolted" plaintiff awake and he "realized that the men outside had managed to slip through the security system downstairs."
Ferroli and several Guidance Software employees arrived, and plaintiff "led the group to the master bedroom where he kept two computers and four hard drives and, having seen from the subpoena that the case had something to do with Lincoln and Ellis, pointed them to the one and only hard drive that would contain Lincoln data." But "[t]he intruders ... demanded everything." The Guidance Software personnel connected laptop computers to plaintiff's machines and transferred "every bit of information on all [plaintiff's] computers and hard drives." Only a "small percentage" of the information copied by the Guidance Software personnel related to Ellis, Lucasse, or Lincoln. The data transfer and copying process consumed 11 hours, during which period Ferroli "wandered in and out." In frail health and underweight, plaintiff "did not sleep for several days thereafter."
Four days after Ferroli and the Guidance Software technicians entered plaintiff's home, a Dykema attorney took plaintiff's deposition, urging him "to state on the record that he was suffering from AIDS[.]" As a result of illness, plaintiff had to complete the deposition later, by telephone from his bed. On July 1, 2004, Lincoln's attorneys informed the federal judge in the Ellis case that plaintiff had violated the TRO. Despite this claim and similar allegations in Lincoln's federal court complaint, defendants never uncovered or presented any evidence of wrongdoing by plaintiff or Ellis. Defendants' actions "traumatized [plaintiff], devastated his best customer, and thereby destroyed [plaintiff's] business." According to the amended complaint, Lincoln bore vicarious liability for the conduct of Dykema, Ferroli, and Guidance Software, because these defendants "were Lincoln's agents and were acting within the scope of their agency."
The amended complaint sets forth five intentional tort claims: invasion of privacy in the form of intrusion on seclusion or into private affairs; trespass; intentional or reckless infliction of emotional distress; abuse of process; and tortious interference with business relationships or expectancies. All defendants sought summary disposition of plaintiff's claims pursuant to MCR 2.116(C)(8). Dykema, Ferroli and Guidance Software filed a separate motion seeking summary disposition under MCR 2.116(C)(10). In a written opinion and order entered on September 9, 2008, the circuit court granted defendants' motions under (C)(8) and dismissed the entirety of plaintiff's complaint.
Plaintiff challenges the circuit court's grant of summary disposition in favor of defendants regarding all five counts of his complaint. This Court reviews de novo a circuit court's summary disposition ruling. Walsh v. Taylor, 263 Mich.App. 618,
Because the circuit court granted defendants summary disposition solely under subrule (C)(8), we examine the pleaded allegations pertaining to each of the asserted intentional torts. Well-established principles guide our review. A complaint must contain "[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend. . . ." MCR 2.111(B)(1). "[T]he primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position." Stanke v. State Farm Mut. Auto. Ins. Co., 200 Mich.App. 307, 317, 503 N.W.2d 758 (1993), citing 1 Martin, Dean & Webster, Michigan Court Rules Practice, p. 186. Our Supreme Court has characterized MCR 2.111(B)(1) as consistent with a "notice pleading environment.. . ." Roberts v. Mecosta Co. Gen. Hosp. (After Remand), 470 Mich. 679, 700 n. 17, 684 N.W.2d 711 (2004). If a party fails to plead facts with sufficient detail, the court should permit "the filing of an amended complaint setting forth plaintiff's claims in more specific detail." Rose v. Wertheimer, 11 Mich.App. 401, 407, 161 N.W.2d 406 (1968); see also MCR 2.116(I)(5).
"Michigan has long recognized the common-law tort of invasion of privacy." Lewis v. LeGrow, 258 Mich.App. 175, 193, 670 N.W.2d 675 (2003). Dean William Prosser has identified a Michigan case, De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881), as among the first reported decisions allowing relief premised on an invasion of privacy theory. Prosser, Privacy, 48 Cal. L. R. 383, 389 (1960). Today, the invasion of privacy tort
The circuit court granted summary disposition in favor of defendants of plaintiff's intrusion on seclusion claim on the basis that the complaint failed to set forth facts "that show that he had a right to privacy in those areas of the apartment necessary to carry out the mandate of the TRO." Relying on this Court's opinion in Saldana v. Kelsey-Hayes Co., 178 Mich.App. 230, 443 N.W.2d 382 (1989), the circuit court added that the TRO deprived plaintiff of a right to privacy in his computers and hard drives:
Plaintiff asserts that the circuit court misconstrued both Saldana and the TRO, insisting that the TRO neither invested defendants with a right to violate plaintiff's privacy nor deprived plaintiff of his common-law privacy rights.
The plaintiff in Saldana, a supervisor in one of the defendant's facilities, fell from a bicycle in the course of his employment. Id. at 232, 443 N.W.2d 382. The defendant suspected the plaintiff of malingering and hired a private investigation firm to "investigate plaintiff and to attempt to determine the extent of plaintiff's injuries." Id. The investigators employed a variety of surveillance techniques, including observing the plaintiff through an open window with a 1,200-millimeter camera lens and posing as a process server "for the purpose of looking around plaintiff's home[.]" Id. at 233, 443 N.W.2d 382. The plaintiff brought an invasion of privacy action asserting an intrusion on his seclusion. Id.
This Court first determined that the plaintiff "can show an intrusion," because "agents of defendants entered plaintiff's home under false pretenses" and "the use of a powerful lens to observe the interior of a home or of a subterfuge to enter a home could be found objectionable to a reasonable person." Id. at 234, 443 N.W.2d 382. However, because the defendants' surveillance of the plaintiff "involved matters which defendants had a legitimate right to investigate," this Court concluded that the plaintiff failed to allege facts that showed the intrusions "were into matters which plaintiff had a right to keep private." Id. This Court explained that the "duty to refrain from intrusion into another's private affairs is not absolute in nature, but rather is limited by those rights which arise from social conditions, including the business relationship of the parties." Id. (emphasis in original). The Court concluded that the plaintiff's privacy interest in his home "was subject to the
We find Saldana readily distinguishable from this case. In Saldana, the nature of the parties' relationship limited the plaintiff's right to privacy concerning the matter the defendant investigated: whether the plaintiff suffered from work-related disabilities. Here, defendants and plaintiff shared no special relationship, business or otherwise, and defendants possessed no legitimate interest in viewing plaintiff's apartment or copying computer data unrelated to Lincoln. Furthermore, we reject the circuit court's conclusion that the TRO divested plaintiff of his right to privacy in his apartment and computer hard drives. The TRO afforded defendants no right whatsoever to enter or search plaintiff's apartment.
Plaintiff's amended complaint avers that he "had a right to privacy in his own home and a right to keep private the private information on his computers and hard drives," and that defendants invaded plaintiff's privacy "by intruding upon his seclusion or solitude and into his private affairs, and obtained access to [plaintiff's] home and information about his private affairs by methods objectionable to a reasonable person." This averment adequately sets forth a claim of invasion of privacy by intrusion on seclusion. The plain language of the TRO in no way renders unenforceable plaintiff's intrusion on seclusion claim.
Defendants alternatively maintain that plaintiff expressly or impliedly consented to the intrusion on his seclusion by allowing Ferroli and the Guidance Software personnel into his apartment and permitting them to copy his computer data. We
The Supreme Court held that the "plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation." Id. at 165-166, 9 N.W. 146. Notwithstanding that Scattergood and Dr. De May "were bidden to enter, treated kindly and no objection whatever [was] made to the presence of defendant Scattergood," id. at 162, 9 N.W. 146, the Supreme Court declined to hold that the plaintiff had consented to Scattergood's intrusion on her privacy:
This Court revisited De May in Lewis, a case that "involve[d] the surreptitious, nonconsensual videotaping of intimate acts of sexual relations in defendant['s] . . . bedroom." Lewis, 258 Mich.App. at 178, 670 N.W.2d 675. A jury found that the defendant had violated the plaintiffs' common-law rights to privacy. The defendant argued on appeal that because the plaintiffs had consented to having sex with him, as a matter of law he had not invaded their privacy. Id. at 191, 670 N.W.2d 675. This Court acknowledged that "there can be no invasion of privacy under the theory of intrusion upon the seclusion of plaintiffs if plaintiffs consented to defendant's intrusion (videotaping)." Id. at 194, 670 N.W.2d 675. However, "[t]he question of waiver or consent ... does not have a zero-sum answer but, rather, presents an issue of the degree or extent of waiver or consent granted, which depends on the facts and circumstances of the case." Id. Because the evidence in Lewis could support the plaintiffs' contention that the defendant had videotaped the plaintiffs without their knowledge or consent, this Court concluded that a factual question had existed on which reasonable minds could differ with respect to the scope of the plaintiffs' consent to the taping.
And in Saldana, 178 Mich.App. at 234, 443 N.W.2d 382, this Court found that the plaintiff established an intrusion based on the defendants' agents' entry into the plaintiff's home "under false pretenses."
Here, plaintiff's amended complaint alleges that defendants obtained consent to enter the apartment through a combination of subterfuge and threat: "Ferroli said he had a federal court subpoena that allowed him and the other men to come inside [plaintiff's] apartment to either take his computers and hard drives or copy what was on them." The amended complaint also avers that plaintiff withheld consent to defendants' copying of anything other than "the one and only hard drive that would contain Lincoln data." These averments fall squarely within the legal analyses and holdings presented in De May and Lewis. As described in the amended complaint, the circumstances surrounding defendants' entry into plaintiff's apartment and the copying of his computer hard drives reasonably suggest that defendants' artifice and dishonesty enticed plaintiff's consent. "Generally, the scope of a waiver or consent will present a question of fact for the jury[.]" Lewis, 258 Mich.App. at 195, 670 N.W.2d 675. As in Lewis, id., when viewed in the light most favorable to plaintiff, the amended complaint presents factual questions on which reasonable minds could differ with respect to whether defendants gained admission to plaintiff's premises by deceit, as in De May, or exceeded the scope of the consent plaintiff extended, as in Lewis and Earp.
Defendants lastly argue regarding the invasion of privacy count that plaintiff's complaint contains no facts supporting plaintiff's allegation that defendants obtained private information through a method that might be objectionable to a reasonable person, or that defendants ever viewed the information they copied. Whether a reasonable person would find an intrusion objectionable constitutes a factual question best determined by a jury. Saldana, 178 Mich.App. at 234, 443 N.W.2d 382. In Saldana, this Court specifically opined that use "of a subterfuge to enter a home could be found objectionable to a reasonable person." Id. We conclude that as alleged, defendants' entry of plaintiff's apartment under false pretenses and their disregard of his instructions about the location of the Lincoln-related information they desired could be found objectionable by a reasonable juror. Furthermore, "An action for intrusion upon seclusion focuses on the manner in which the information was obtained, not on the information's publication." Lewis, 258 Mich.App. at 193, 670 N.W.2d 675 (emphasis added). In Harkey v. Abate, 131 Mich.App. 177, 182, 346 N.W.2d 74 (1983), this Court adopted the Restatement's view that
Therefore, irrespective of whether defendants ever viewed the copied information, the amended complaint's description of the methods defendants employed to obtain the data adequately pleaded an invasion of plaintiff's seclusion.
In summary, because plaintiff's amended complaint adequately sets forth a claim for invasion of privacy by intrusion on seclusion, we conclude that the circuit court improperly granted defendants summary disposition of this claim under MCR 2.116(C)(8).
Plaintiff next challenges the circuit court's ruling that his amended complaint "failed to state the element of unauthorized entry that is necessary for a claim of trespass." The circuit court reasoned that defendants "had a nonconsensual privilege to enter plaintiff's apartment for the purpose of" executing the TRO. In support of this conclusion, the circuit court cited this Court's decision in Antkiewicz v. Motorists Mut. Ins. Co., 91 Mich.App. 389, 283 N.W.2d 749 (1979), vacated in part on other grounds 407 Mich. 936, 285 N.W.2d 659 (1979), and 2 Restatement Torts, 2d, § 210. Defendants suggest that because plaintiff refused to allow his computers to be taken from his apartment, the circuit court correctly determined that the TRO authorized entry of the apartment for duplication of the hard drives.
A trespass is an unauthorized invasion on the private property of another. American Transmission, Inc. v. Channel 7 of Detroit, Inc., 239 Mich.App. 695, 705, 609 N.W.2d 607 (2000). In Antkiewicz, 91 Mich.App. at 396, 283 N.W.2d 749, the Court explained that "[n]ormally, a public officer who is on the premises of another pursuant to legal authorization is not liable for trespass." The circuit court in this case recognized that defendants do not qualify as public officers, but opined that they possessed analogous powers under 2 Restatement Torts, 2d, § 210, which provides as follows:
Irrespective that Michigan has not adopted this section of the Restatement, we decline to apply § 210 here because it bears no relevance to the facts of this case. The TRO neither authorized defendants to take possession of plaintiff's land nor invested them with the authority "to do any other act on the land. . . ." The TRO required plaintiff "to provide for prompt copying" of his computer data concerning Lincoln and permitted Lincoln's agents to copy the data, but it afforded defendants no right to enter plaintiff's apartment, either to obtain the computer hard drives or to accomplish the copying. Consequently, we reject as unfounded the circuit court's conclusion that the language of the TRO contemplated or authorized an entry into plaintiff's apartment.
Whether plaintiff consented to defendants' entry into his apartment presents a more difficult question. Plaintiff's amended complaint avers that he allowed
In American Transmission, 239 Mich. App. at 708, 609 N.W.2d 607, this Court cited favorably a case decided by the United States Court of Appeals for the Seventh Circuit, Desnick v. American Broadcasting Cos., Inc., 44 F.3d 1345 (C.A.7, 1995). In Desnick, the Seventh Circuit, in an opinion authored by Chief Judge Richard Posner, rejected the contention that journalists posing as test patients at an eye surgery center had committed a trespass, reasoning that the test patients' entry did not invade
As the Seventh Circuit recognized in Desnick, important distinctions differentiate misrepresentations directed to gain entry to business concerns and those employed to enter a private home. The Seventh Circuit acknowledged that in a true trespass case, "there can be no implied consent in any nonfictitious sense of the term when express consent is procured by a misrepresentation or a misleading omission." Id. at 1351. The court posited the following illustrative example: "If a homeowner opens his door to a purported meter reader who is in fact nothing of the sort—just a busybody curious about the interior of the home—the homeowner's consent to his entry is not a defense to a suit for trespass." Id. at 1352. Nevertheless, the law sometimes deems effective in
A decision of the United States Court of Appeals for the Ninth Circuit, Theofel v. Farey-Jones, 359 F.3d 1066 (C.A.9, 2004), further illustrates that the character of a particular deceit remains critical to a determination of the implicated privacy interests. In Theofel, the plaintiffs cooperated with a faulty subpoena issued by the defendants, federal court litigants, and the Ninth Circuit considered whether the plaintiffs' cooperation operated as a consent to disclosure of otherwise protected information. The Ninth Circuit analogized to the common law of trespass and, citing Desnick, concluded that the plaintiffs had alleged facts that vitiated their apparent consent:
The Ninth Circuit concluded that "[b]ecause defendants procured consent by exploiting a mistake of which they had constructive
"[T]respass is an invasion of the plaintiff's interest in the exclusive possession of his land. . . ." Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 59, 602 N.W.2d 215 (1999) (quotation marks and citation omitted). Under the common law, a trespass on land violated the landowner's right to exclude others from the premises. Id. at 60, 602 N.W.2d 215. Here, plaintiff's amended complaint avers that defendants obtained his consent to enter the apartment by representing that a "federal court subpoena" authorized their access to the inside of plaintiff's apartment, that defendants' entry constituted a trespass, and that "[t]hey intended to intrude on [plaintiff's] private property without authorization to do so." We conclude that these averments adequately delineate a trespass claim and that defendants' alleged misrepresentations could reasonably be found to have vitiated plaintiff's consent to the entry of his apartment. Because the interest protected by the common-law tort of trespass is identical to that identified in plaintiff's amended complaint, this case more closely parallels the phony meter reader's entry into a residence than the decoy customers' entries into business premises. Accordingly, we reverse the circuit court's grant of summary disposition in defendants' favor of the trespass claim.
Plaintiff further asserts that the circuit court erred by granting in defendants' favor summary disposition of his claim for intentional or reckless infliction of emotional distress. According to plaintiff, reasonable minds could differ with respect to whether defendants' conduct qualified as outrageous in light of Ferroli's status as a lawyer, plaintiff's AIDS-related disability, and the prolonged time defendants spent in plaintiff's bedroom. "To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1) the defendant's extreme and outrageous conduct, (2) the defendant's intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff." Walsh, 263 Mich. App. at 634, 689 N.W.2d 506. "[O]nly when a plaintiff can demonstrate that the defendant's conduct is `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community'" will liability attach. Id., quoting Graham v. Ford, 237 Mich.App. 670, 674, 604 N.W.2d 713 (1999). "[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" do not give rise to liability for intentional infliction of emotional distress. Doe, 212 Mich.App. at 91, 536 N.W.2d 824. Initially, the trial court must determine whether a defendant's conduct qualifies as so extreme and outrageous
Even accepting as true the allegations in plaintiff's amended complaint, they fail to describe conduct so extreme or outrageous that it surpasses all bounds of decency in a civilized society. Assuming that Ferroli misled plaintiff about the scope of the TRO, defendants' conduct inside plaintiff's apartment simply does not amount to atrocious or extreme behavior. At worst, defendants' engaged in actions that were annoying and oppressive, but these actions do not rise to the level of outrageousness necessary to establish a claim for intentional infliction of emotional distress. We thus conclude that the circuit court correctly dismissed this claim under MCR 2.116(C)(8).
Plaintiff additionally contends that the circuit court improperly granted summary disposition in defendants' favor of his abuse of process count.
In a case alleging abuse of process, the pleadings must allege with specificity an act committed in the use of process "that is improper in the regular prosecution of the proceeding." Early Detection Ctr., P.C. v. New York Life Ins. Co., 157 Mich.App. 618, 629, 403 N.W.2d 830 (1986). A complaint must allege more than the mere issuance of the process, because an "action for abuse of process lies for the improper use of process after it has been issued, not for maliciously causing it to issue." Friedman v. Dozorc, 412 Mich. 1, 31, 312 N.W.2d 585 (1981) (quotation marks and citation omitted). A claim asserting nothing more than an improper motive in properly obtaining process does not successfully plead an abuse of process. Young v. Motor City Apartments Ltd. Dividend Housing Ass'n No. 1 & No. 2, 133 Mich.App. 671, 681, 350 N.W.2d 790 (1984).
Plaintiff's amended complaint alleges that defendants harbored an "ulterior purpose" to "serve Lincoln's strategy of intimidating and harassing Ellis, and give Lincoln a tactical business advantage over Ellis when there was no factual basis for the proceeding." Even assuming that plaintiff may properly assert a collateral purpose directed solely at harming a third party, the amended complaint fails to allege with specificity any acts committed in furtherance of this purpose. Moreover, "the ulterior purpose alleged must be more than harassment, defamation, exposure to excessive litigation costs, or even coercion to discontinue business." Early Detection Ctr., 157 Mich.App. at 629-630, 403 N.W.2d 830. We agree with the circuit court's finding that plaintiff simply did not identify an act or facts supporting the allegation that defendants used the TRO for an improper, collateral purpose. However, pursuant to MCR 2.116(I)(5), the circuit court must afford plaintiff an opportunity to amend his complaint to set forth his abuse of process claim in greater detail.
Plaintiff lastly disputes the circuit court's grant of summary disposition
To fulfill the third element, intentional interference inducing or causing a breach of a business relationship, a plaintiff must demonstrate that the defendant acted both intentionally and either improperly or without justification. Bonelli v. Volkswagen of America, Inc., 166 Mich.App. 483, 498, 421 N.W.2d 213 (1988). To establish that a defendant's conduct lacked justification and showed malice, "the plaintiff must demonstrate, with specificity, affirmative acts by the defendant that corroborate the improper motive of the interference." BPS Clinical Laboratories, 217 Mich.App at 699, 552 N.W.2d 919. "Where the defendant's actions were motivated by legitimate business reasons, its actions would not constitute improper motive or interference." Id.
Plaintiff's amended complaint asserts that defendants knew or should have known that their pursuit of the TRO and a vindictive, groundless lawsuit against Ellis would disrupt plaintiff's business relationship with Ellis and Lucasse. These allegations do not set forth a claim for tortious interference with a business relationship. "[I]n order to succeed under a claim of tortious interference with a business relationship, the plaintiffs must allege that the interferer did something illegal, unethical or fraudulent. There is nothing illegal, unethical or fraudulent in filing a lawsuit, whether groundless or not." Early Detection Ctr., 157 Mich.App. at 631, 403 N.W.2d 830 (citation omitted). We also decline to find that defendants' pursuit of the TRO amounts to illegal, unethical, or fraudulent conduct and conclude, as did the circuit court, that plaintiff's amended complaint fails to allege any act of improper interference sufficient to allow him to maintain his tortious interference claim.
Because the circuit court granted defendants summary disposition of all claims pleaded in the amended complaint, the court declined to address (1) Lincoln's argument that as a matter of law plaintiff cannot establish its vicarious liability, (2) Dykema and Ferroli's motion for summary disposition premised on MCR 2.116(C)(10), and (3) Dykema and Ferroli's contention that a litigation privilege entitles them to judgment as a matter of law. We similarly decline to address these additional issues raised by defendants on which the circuit court reserved ruling. People v. Herrick, 277 Mich.App. 255, 259, 744 N.W.2d 370 (2007) (observing that generally appellate review is limited to issues decided by the trial court).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Our reading of this provision clearly and unambiguously conveys that the italicized qualifying language, "which contain any Lincoln Customer Records," refers and applies to the previously referenced electronic media whether in the possession of the specifically identified individuals like plaintiff or within their "effective power to obtain. . . ." Stated differently, in this case defendants plainly had entitlement to access only those Lincoln customer records in plaintiff's actual or constructive possession.
