Page:Touhy v. Walgreen Company.pdf/19

 that she knew Mr. Abrams told Ms. Touhy that Ms. Whitlock was his source. Ms. Touhy contends that these facts, taken together, suggest that Ms. Whitlock was the only person with both access to Ms. Touhy's medical information and motivation to disclose that information to Mr. Abrams.

As a general principle, we agree that circumstantial evidence can suffice to defeat summary judgment in appropriate circumstances; of course a plaintiff is not required to prove his or her case by direct proof alone. ''See U.S. Postal Serv. Bd. of Governors v. Aikens,'' 460 U.S. 711, 714 n.3 (1983) ("As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence."). Neither do we doubt that direct evidence can often be difficult to come by in the context of wrongful disclosure claims; the verbal transmission of private information often leaves no paper trail, and neither the source nor the receiver of such information generally has any incentive to admit to taking part in the disclosure. Even so, the standard at summary judgment still requires Ms. Touhy to come forward with evidence sufficient for "a fair-minded jury [to] return a verdict" in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990). The various pieces of circumstantial evidence put forward by Ms. Touhy do not pass this threshold.

The testimony that Ms. Whitlock and Ms. Frazier were good friends and that Ms. Frazier was Mr. Abrams's girlfriend shows at most that communication between the three individuals was possible or even likely; it does nothing to - 19 -