hundreds of articles by subject Featured: Writing Paralegal Resumes New: How To Discover Business Assets New: Criminal Motion Practice (with forms) New: Trends in paralegal training & programs. New: Getting Started as a Paralegal The Listserv is a free, e-mail discussion group. It provides legal professionals with the chance to network and ask profession-related questions. Featured topic: Billable Hours This long-running column examines ethics in the paralegal profession. Do you have an ethical dilemma or question? E-mail us today. Recently Posted: Avoiding Technology Traps
|
In Good Form Pattern Interrogatories for Invasion of Privacy March/April 2008 Table of Contents
Looking for interrogatories for invasion of privacy cases? The documents described and boldfaced in this article are available by clicking on the form’s name in the article or by visiting the "Forms" section of our Web site.
Forms from Plaintiff to
Defendant
§2517.2.2 Prior
Actions for Invasion of Privacy
§2522
Reasonable Expectation of Privacy
§2523
Intrusion as Highly Offensive to a Reasonable Person
§2532
Matter Disclosed as “Private Fact”
§2533
Disclosure Offensive to a Reasonable Person
§2534
Disclosure Regarding Matter of Legitimate Public Concern
§2541
Giving Publicity to a Matter Concerning Plaintiff
§2542
False Characteristics, Conduct or Belief
§2542.1
False Light Requiring Reference to Extrinsic Facts
§2543
Disclosure Offensive to a Reasonable Person
§2544
Knowledge or Reckless Disregard of Falsity
§2552
Publication of Matters of Public Interest
§2571.4
Emotional Distress Damages
Forms from Defendant to
Plaintiff
§2517.1.4
Similar Claims and Legal Proceedings
§2527
Reasonable Expectation of Privacy
§2528
Intrusion as Highly Offensive to a Reasonable Person
§2537
Matter Disclosed as “Private Fact”
§2538
Disclosure Offensive to a Reasonable Person
§2539
Disclosure Regarding Matter of Legitimate Public Concern
§2546
Giving Publicity to a Matter Concerning Plaintiff
§2547
False Characteristics, Conduct or Belief
§2547.1
False Light Requiring Reference to Extrinsic Facts
§2548
Disclosure Offensive to a Reasonable Person
§2549
Knowledge or Reckless Disregard of Falsity
§2562
Publication of Matters of Public Interest
§2572.4
Emotional Distress Damages
As most practitioners and legal teams are aware,
both the common law and many state constitutions recognize privacy
as among the fundamental personal rights. For this reason, the law
in many states recognizes invasion of privacy as a tort that is
separate and distinct from the tort of defamation. It has been
observed that the right of privacy concerns one’s peace of mind
while the right of freedom from defamation concerns one’s
reputation. Accordingly, where the elements of invasion of privacy
are met, the plaintiff may recover, even if the elements of
defamation can’t be established. (See, e.g., Fairfield
v. American Photocopy Equipment Co., 138 Cal.App.2d 82, 86
(1955).) Indeed, tort liability for invasion of privacy can provide
a remedy in situations in which the civil action for defamation
would not lie by virtue of the defense of truth. Notwithstanding that the tort of invasion of
privacy is conceptually distinct from that of defamation, certain
observations regarding the relationship between the two torts should
be made. The first of these is that while the torts are conceptually
distinct, the damages awardable may nevertheless be the same and
thus, while an action for defamation and invasion of privacy may
often be based upon the same conduct, the plaintiff can recover only
once for the same elements of damage. Moreover, and again notwithstanding the fact
that liability for invasion of privacy is conceptually distinct from
defamation, the same public interest in the dissemination of
information that supports absolute, qualified and constitutional
privileges in the defamation context may also apply in invasion of
privacy cases. This especially is true when the invasion of privacy
is alleged to have exposed the plaintiff in a false light to the
public eye. Finally, it should be noted that, in numerous
instances, state statutory provisions provide redress for various
invasions of privacy and these statutes may also be applicable in a
given factual context. Elements of the Plaintiff’s Cause of Action To state a cause of action for invasion of privacy
based upon intrusion into private matters, the plaintiff must plead
and prove intrusion into a private place, conversation or matter,
which is highly offensive to a reasonable person. (See Restatement
2d, Torts §652B.) To state a cause of action for invasion of
privacy based upon public disclosure of private facts, the plaintiff
must plead and prove the public disclosure; the public disclosure is
of a private fact; the public disclosure is offensive to a
reasonable person; and, the public disclosure does not relate to a
matter of legitimate public concern. Each of the foregoing elements
is the subject of interrogatories set forth in this article. In order to state a cause of action for invasion
of privacy by holding the plaintiff in a false light in the public
eye, the plaintiff must show that the defendant gave publicity
to a matter concerning another, which held the plaintiff in a false
light by attributing to him characteristics, conduct or beliefs that
were false, where the false light in which the plaintiff was placed
would be highly offensive to a reasonable person, and that the
defendant acted with knowledge or reckless disregard as to the false
light in which the plaintiff would be placed. (See Restatement 2d,
Torts §652E.) In many instances, liability for this branch of
invasion of privacy overlaps liability for defamation, and the
courts have held that many of the same defenses are applicable. One who appropriates to his own use or benefit
the name or likeness of another is subject to liability for invasion
of privacy. (See Restatement 2d, Torts §652C.) This branch of
invasion of privacy protects both the individual’s personal feelings
when his or her likeness or name is appropriated, as well as his or
her property interest in a right of “publicity.” (See Dora v.
Frontline Video, Inc., 15 Cal.App.4th 536, (1993).) As with
other branches of liability for invasion of privacy, the protection
of matters of public concern and public interest serve in
appropriate instances to limit liability for the tort. The elements
of the prima facie case and relevant defenses are the subject of the
interrogatories that accompany this article. Defenses in Invasion of Privacy Cases As noted previously, conduct that gives rise to
invasion of privacy can, but need not necessarily, give rise to an
action of defamation. For this reason, certain of these defenses are
discussed in the sections that follow. At the same time, in many instances the facts
that give rise to liability for invasion of privacy would be
insufficient to support a cause of action for defamation; an example
is where private facts regarding a plaintiff are publicized but such
facts are true. Accordingly, certain defenses available in
defamation cases, e.g., truth, are not applicable to
invasion of privacy cases, except as to that form of invasion of
privacy which consists of holding the plaintiff in a false light in
the public eye. For present purposes, it suffices to note that this
article contains interrogatories pertaining to absolute, qualified,
and constitutional privilege for use by defendants when such
privileges apply to invasion of privacy claims. Information Regarding the Parties The existence of other claims for invasion of
privacy directed against the defendant may shed light on the
defendant’s business practices and motivations. Further, under most
evidence codes, evidence of similar happenings is admissible to
negate the claim of accident or excuse in the instant case. An
examination of the papers and files pertaining to similar litigation
may illuminate the defendant’s litigation practices and provide the
identity of potential experts. Therefore, the interrogatories in
§2517.1.4, Similar
Claims and Legal Proceedings, seek to determine whether
the defendant litigated similar invasion of privacy claims in the
past. The interrogatories in
§2517.2.2, Prior Actions for
Invasion of Privacy, seek to determine whether the
plaintiff has advanced prior claims for invasion of privacy. The
information developed as a result of this investigation can bear
upon the nature and extent of the damages the plaintiff claims in
the instant proceeding. Intrusion Into Private Affairs For liability to attach, the plaintiff must show
that the defendant invaded the plaintiff’s physical or sensory
privacy, or obtained access to private data about the plaintiff.
(See Shulman v. Group W Productions, Inc., 18 Cal.4th 200
(1998).) The tort can be committed through any number of actions
including stalking, recording, eavesdropping or other conduct that
invades a legitimate zone of physical or personal privacy. The
interrogatories contained in
§2521, Fact of Intrusion,
can be modified to address the specifics of the defendant’s conduct.
The interrogatories contained in
§2526, Fact of Intrusion,
address the plaintiff’s contentions regarding the factual basis for
the claim of intrusion. The plaintiff must have an objectively
reasonable expectation of privacy with respect to the place, matter
or data allegedly invaded. The interrogatories set forth in
§2522, Reasonable Expectation of
Privacy, address the defendant’s contentions regarding
the plaintiff’s expectation of privacy. The interrogatories set
forth in §2527,
Reasonable Expectation of Privacy, address the
plaintiff’s contentions regarding the existence of such an
expectation of privacy. In close cases, determining whether a person
would find the intrusion highly offensive involves a careful
examination of the time, place and manner of the alleged intrusion,
the tactics employed and similar matters. The interrogatories set
forth in §2523,
Intrusion as Highly Offensive to a Reasonable Person,
explore the defendant’s contentions regarding whether the intrusion
can be deemed highly offensive to a reasonable person. The
interrogatories set forth in
§2528, Intrusion as Highly
Offensive to a Reasonable Person, explore the
plaintiff’s contention that the alleged intrusion would be deemed
highly offensive by a reasonable person. Public Disclosure of Private Facts The interest to be protected by this branch of
invasion of privacy is freedom from publicity regarding private
matters that are not matters of legitimate public concern. (See
Restatement 2d, Torts §652D.) The tort requires some act of public
disclosure, i.e., “giving publicity to” a private matter
under circumstances where the right to publish is outweighed by the
right to privacy. (See generally Diaz v. Oakland Tribune, Inc.,
139 Cal.App.3d 118 (1983).) The interrogatories set forth in
§2531, Fact of Disclosure, address and explore the
threshold fact of public disclosure from the plaintiff to the
defendant. The interrogatories set forth in
§2536, Fact of Disclosure,
address the threshold fact of public disclosure from the defendant
to the plaintiff. As noted above, for liability to attach, the
matter disclosed must constitute a “private fact” that is not a
matter generally known in the community. (See generally M.G. v.
Time Warner, Inc., 89 Cal.App.4th 623 (2001).) The
interrogatories set forth in
§2532, Matter Disclosed as
“Private Fact,” explore the defendant’s contentions
where the private nature of the fact revealed is in issue, and
§2537, Matter Disclosed
as “Private Fact,” explores the plaintiff’s
contentions. The fact of disclosure must be such that a
reasonable person would deem it offensive. (See Shulman v. Group
W Productions, Inc., 18 Cal.4th 200 (1998).) In close cases,
this involves a careful examination regarding the nature of the fact
disclosed and the context in which disclosure occurs. The
interrogatories set forth in
§2533, Disclosure Offensive to a
Reasonable Person, explore the defendant’s contentions
regarding whether the disclosure can be deemed offensive to a
reasonable person, and
§2538, Disclosure Offensive to a Reasonable Person,
explores the plaintiff’s contentions. In order to recover, the plaintiff must
demonstrate that disclosure did not involve a matter of legitimate
public concern. To balance the individual’s right to privacy with
society’s interest in the dissemination of newsworthy information,
the courts consider the societal value of the facts disclosed, the
depth of the intrusion into the private matter, and the extent to
which the plaintiff assumes a position of notoriety. (See Diaz
v. Oakland Tribune, Inc., 139 Cal.App.3d 118 (1983).) Where
reasonable minds can differ, the determination of whether the matter
is one of legitimate public concern presents a jury question. (Id.)
The interrogatories set forth in
§2534, Disclosure Regarding
Matter of Legitimate Public Concern, explore the
defendant’s contentions regarding these issues, and
§2539, Disclosure Regarding
Matter of Legitimate Public Concern, explores the
plaintiff’s contentions. False Light Invasion of Privacy As with other forms of invasion of privacy,
liability for placing the plaintiff in a false light in the public
eye requires the giving of publicity or public disclosure of a
matter concerning the plaintiff. (See Restatement 2d, Torts §652D.)
The interrogatories set forth in
§2541, Giving Publicity to a
Matter Concerning Plaintiff, explore the threshold fact
of public disclosure from the plaintiff’s perspective, and
§2546, Giving Publicity to a
Matter Concerning Plaintiff explores it from the
defendant’s perspective. For liability to attach, the matter disclosed
must portray the plaintiff in a false light by attributing to him or
her false characteristics, conduct or belief. The interrogatories
set forth in §2542,
False Characteristics, Conduct or Belief, explore the
defendant’s contentions regarding the falsity of the matter
attributed to the plaintiff, and
§2547, False Characteristics,
Conduct or Belief, explores the plaintiff’s
contentions. Since invasion of privacy by casting the
plaintiff in a false light in the public eye is analytically similar
to defamation, the courts have struggled to define the points of
intersection between the two torts. To avoid a situation in which a
false light invasion of privacy claim could be used to circumvent
the statutory limitations upon defamation claims, the courts have
held that where the false imputation is not apparent upon the face
of the statement or disclosure, the plaintiff must prove special
damages. (See Fellows v. National Enquirer, Inc., 42 Cal.3d
234 (1986).) The interrogatories set forth in
§2542.1, False Light Requiring
Reference to Extrinsic Facts, address several common
situations in which the harmful nature of the publication or
disclosure is apparent on the face of the statement, as well as the
defendant’s contention that this is not the case, and
§2547.1, False Light Requiring
Reference to Extrinsic Facts, addresses these same
common situations, as well as the plaintiff’s contention that this
is the case. Another requirement of false light invasion of
privacy is that the disclosure be highly offensive to a reasonable
person. (See Restatement 2d, Torts §652E.) The interrogatories
set forth in §2543,
Disclosure Offensive to a Reasonable Person, explore
the defendant’s contentions regarding whether the disclosure can be
deemed offensive to a reasonable person. The interrogatories set
forth in §2548,
Disclosure Offensive to a Reasonable Person, explore
the plaintiff’s contentions regarding whether the disclosure was
such that it would be deemed offensive to a reasonable person. The final requirement of false light invasion of
privacy is that the plaintiff demonstrate that the defendant acted
with knowledge or reckless disregard as to the false light in which
the plaintiff would be placed. (See Restatement 2d, Torts §652E.)
This requirement derives from the analytic similarities between
false light and defamation cases; the courts have held that actual
malice must be shown under the law of defamation. The
interrogatories set forth in
§2544, Knowledge or Reckless
Disregard of Falsity, explore the defendant’s
contentions regarding knowledge of falsity or reckless disregard for
the truth of the imputation, and
§2549, Knowledge or Reckless
Disregard of Falsity, explores the plaintiff’s
contentions. Appropriation of Name or Likeness Liability for this branch of invasion of privacy
requires some act by which the defendant appropriates the name or
likeness of another for the defendant’s own use or benefit. (See
Restatement 2d, Torts §652C.) In most cases, this will involve the
use of the plaintiff’s name, likeness or photograph in some form of
publication or advertising. The interrogatories set forth in
§2551, Fact of Appropriation,
address and explore the threshold fact of appropriation from the
plaintiff’s perspective, and
§2561, Fact of Appropriation,
addresses it from the defendant’s perspective. As with other branches of invasion of privacy,
the liability equation in appropriation cases involves a delicate
balance between an individual’s right to prevent exploitation of his
of her own name or likeness and the public interest in matters of
public concern. This problem may be less acute when a celebrity’s
likeness is appropriated to promote a commercial product, but the
fact that liability for appropriation can attach for the claimed
appropriation of a private individual’s likeness or name where the
subject is otherwise newsworthy means that in such cases, the courts
must engage in a careful balancing of the individual’s interest
against the public’s “right to know.” (See generally Dora v.
Frontline Video, Inc., 15 Cal.App.4th 536 (1993).) The
interrogatories set forth in
§2552, Publication of Matters of
Public Interest, address some of the factors bearing on
the question of whether the individual’s privacy rights are
outweighed by the public interest in newsworthy matters from the
plaintiff’s perspective, and
§2562, Publication of Matters of
Public Interest, addresses the factors from the
defendant’s perspective. Damages in Invasion of Privacy Cases Where the invasion of privacy consists of casting
the plaintiff in a false light in the public eye, injury to
reputation can be a proximately caused damage. The interrogatories
set forth in §2571.1,
Damage to Reputation, address the defendant’s
contentions regarding injury to reputation, and
§2572.1, Damage to Reputation,
addresses the plaintiff’s contentions. A plaintiff who prevails in an action for
invasion of privacy is entitled to recover provable economic losses.
These damages are especially likely when the invasion of privacy
consists either of casting the plaintiff in a false light or
appropriating the plaintiff’s likeness, etc., but also are
conceptually possible with other forms of invasion of privacy. The
interrogatories set forth in
§2571.2, Economic Losses,
address the defendant’s contentions regarding such claimed economic
losses, and §2572.2,
Economic Losses, addresses the plaintiff’s contentions. In false light and appropriation cases, the
plaintiff’s economic loss may take the form of the loss of business
goodwill. The interrogatories set forth in
§2571.3, Loss of Goodwill,
explore the defendant’s contentions regarding the loss of goodwill
claims. The interrogatories set forth in
§2572.3, Loss of Goodwill,
explore the plaintiff’s contentions where the plaintiff claims a
loss of goodwill. The law of invasion of privacy recognizes the
individual’s right to maintain a zone of privacy without being
subjected to unwarranted publicity. (See 5 Witkin, Summary of
California Law, 10th Ed. Torts, §651.) It follows that injury to the
plaintiff’s mental tranquility is a primary element of damages where
invasion of privacy is proven. The interrogatories set forth in
§2571.4, Emotional
Distress Damages, explore the defendant’s contentions
regarding the plaintiff’s emotional distress damage claims. The
interrogatories set forth in
§2572.4, Emotional Distress Damages, explore
the plaintiff’s contentions regarding the plaintiff’s emotional
distress damage claims.
Kevin R. Culhane is a partner at Hansen, Boyd, Culhane & Watson in Sacramento, Calif. His practice consists primarily of professional liability and appellate law. He has been a member of the California State Bar Board of Governors and the Judicial Council of California. He is the author of Model Interrogatories (www.James Publishing.com or 800-440-4780), from which this article is excerpted.
|
© Legal Assistant Today Magazine |