LMSD Files Motion to Dismiss, Plaintiff Files Countermotion in Latest Webcam Lawsuit

The Lower Merion School District officials have asked a judge to dismiss the latest webcam lawsuit filed against them in June, and the former student who filed that suit promptly responded with his own countermotion. 

In the original lawsuit, Joshua Levin, now of Spruce Street in Philadelphia, was a Harriton High School student and a minor at the time he he was issued through the school’s one-to-one computer program. 

“But that background alone—as regrettable as the District has acknowledged it was—does not give rise to an actionable claim for damage,” states the motion to dismiss filed by the district Aug. 9. 

The motion goes on to claim Levin’s case differs from the previous webcam cases filed by former students in that no one from the school ever saw the photographs taken of Levin. 

“This materially distinguishes this case from Robbins, et al. v. Lower Merion School District, et al.—which gave rise to extensive litigation in this Court but in which the District never formally responded to the complaint—because the Robbins plaintiff alleged that District personnel viewed the images taken by his laptop and confronted him with them for disciplinary reasons.”

The district’s motion says that Levin and five other Harriton students reported their laptops stolen from a Harriton locker room on Sept. 19, 2008, adding that Levin’s lawsuit does not mention this.

“Accordingly, the District activated the tracking feature for those computers, and the tracking fulfilled its purpose: using the images and other information captured from the laptops, the Lower Merion Police Department recovered the laptops and returned them to the District on October 9, 2008,” the motion states.

However, the district then did not deactivate the tracking feature and the laptops continued to periodically take photographs, which an independent investigation of the incident found the only explanation for this is that it was a “major oversight.”

The investigation by the Ballard Spahr law firm also revealed that photos of Levin were captured through an automated process and did not involve and district personnel, the motion states.

Lower Merion School District’s stance has been that Levin’s suit is purely financially motivated. While district spokesman Doug Young wrote in an email Wednesday afternoon the district’s “position has not changed with regard to the case,” no further comment was immediately available.

Levin’s 92-page countermotion, filed Aug. 12, calls Lower Merion School District’s assertion that Levin has no “actionable claim for damages” a bold one and references the original letter sent to Levin to inform him of the photographs taken by his webcam.

“Specifically, 4,404 webcam photographs and 3,978 screenshots that were recovered in the investigation were taken from your child’s laptop from September 22, 2008 to March 12, 2009,” said the letter, according to Levin’s countermotion. (Bolded section is Levin's emphasis). 

The countermotion cites the independent investigation's findings that members of the district’s Information Services Department weren’t forthcoming with board members, administrators or students about how the anti-theft software could be used.

“Viewed in a light most favorable to the Plaintiff, it cannot be said that adequate allegations have not been made to survive this motion. It is respectfully argued that this Court should allow the case to proceed to develop the evidence that will provide a sufficient basis for a prima facie case for the jury,” the countermotion states.

Levin’s attorney, Norman Perlberger, could not be reached for comment Wednesday; a colleague reached by phone at his law office said he is on vacation.