In Good Form

Pattern Interrogatories for Invasion of Privacy

By Kevin R. Culhane

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

§2521         Fact of Intrusion

§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

§2551         Fact of Appropriation

§2552         Publication of Matters of Public Interest

§2571.1      Damage to Reputation

§2571.2      Economic Losses

§2571.3      Loss of Goodwill

§2571.4      Emotional Distress Damages

Forms from Defendant to Plaintiff

§2517.1.4    Similar Claims and Legal Proceedings

§2526          Fact of Intrusion

§2527          Reasonable Expectation of Privacy

§2528          Intrusion as Highly Offensive to a Reasonable Person

§2531          Fact of Disclosure

§2536          Fact of Disclosure

§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

§2561          Fact of Appropriation

§2562          Publication of Matters of Public Interest

§2572.1       Damage to Reputation

§2572.2       Economic Losses

§2572.3       Loss of Goodwill

§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.

Visit the Forms Directory page for links to the forms discussed in this article, as well as over 100 forms relating to a variety of other topics.