Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, January 19, 2006

District Court Grants in Part, Denies in Part Newspaper's Motion to Dismiss Lawsuit Over Disclosure of Private Facts, Intentional Infliction of Emotional Distress

In Lowe v. Hearst Communications, U. S. District Judge Orlando Garcia granted in part and denied in part the San Antonio Express-News' request to dismiss a complaint brought by a bankruptcy trustee alleging that its article "Sex, lawyers, secrets at heart of sealed legal case" caused emotional distress and invaded the privacy of Ted and Mary Roberts. The Roberts couple "bilked several of Mary's lovers out of tens of thousands of dollars. According to the article, Mary ran a personal ad on the internet seeking "erotic and intellectual" relationships with men. Ted would prepare draft petitions and settlement agreements and present them to Mary's lovers, naming them as potential defendants and threatening them with legal action that would publically expose their affairs with Mary. As many as five men ultimately entered into settlement agreements with Ted to avoid litigation. Ted collected from $ 75,000 to $ 155,000 from the men, according to the article." With regard to the question of invasion of privacy, the court stated that, "Hearst first argues that the Robertses lacked any legally cognizable expectation of privacy in the facts published because they had already distributed the draft petitions, settlement agreements, and e-mails contained in the 202 Documents to their potential legal adversaries. Plaintiff asserts that this argument is an assertion of a defense, not a pleading defect. Plaintiff also argues that, in any event, the "publication" did not extend beyond the Robertses and Mary's paramours -- they were not circulated publically. The tort requires circulation of the private facts to more than a small, closed circle of people. 'Publicity' requires communication to more than a small group of persons; the matter must be communicated to the public at large, such that the matter becomes one of public knowledge. ...The mere fact that the Robertses disclosed these documents to a handful of individuals who had every incentive not to disclose them publicly does not destroy the Robertses' expectation of privacy as a matter of law."

"...If plaintiff's allegations in the present case are true (and the Court must accept them as true for purposes of the present motion) and Hearst obtained the sealed documents in contravention of the sealing order and published them, it has done so "illegally" in the sense that it violated a lawful court order of which it had notice. And plaintiff has stated a potential cause of action for invasion of privacy."

With regard to the IIED claim, the court held that "[e]ven if a cause of action for intentional infliction of emotional distress were available in conjunction with a privacy action involving the same facts, Hearst argues that as a matter of law its conduct was not extreme or outrageous. A review of Texas law confirms that position. Publication of truthful, albeit embarrassing, information has again and again been determinged not to constitute extreme and outrageous conduct....For the reasons set forth above, Hearst's motion to dismiss plaintiff's intentional infliction of emotional distress claim will be granted."

Read the entire ruling here.

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