California High Court Hears Argument Regarding Invasion of Privacy Claims

On Tuesday, December 5, the California Supreme Court heard argument in the case of Taus v. Loftus, S133805. Loftus is a psychologist and UC Irvine professor who allegedly misidentified herself for the purpose of obtaining information to dispute conclusions of a case study regarding repressed memory. Loftus allegedly used public records to find Jane Doe, now identified as naval aviator Nicole Taus, the subject of a study by psychiatrist David Corwin. As a child, Taus was the subject of a child custody battle in which her father, who prevailed, claimed his daughter had been abused by her mother. Corwin interviewed Taus first as a child during her parents’ divorce, and again more than a decade later. With Taus’ consent, Corwin wrote an article in 1997 that claimed that Taus had reported abuse as a child, blocked memories of the abuse, and spontaneously recovered those memories during their subsequent interview years later. Corwin’s article identified Taus as Jane Doe.

Loftus published a two-part report in 2002 casting doubt on Corwin’s conclusions, but did not identify Taus by name. In 2003, Taus revealed her own identity when she sued Loftus, her co-author Melvin Guyer, Carol Tavris (an author of another 2002 article regarding the case), the magazine where the Loftus article appeared the Skeptical Inquirer (published by the Committee for the Scientific Investigation of Claims of the Paranormal), the University of Washington (where Loftus was employed), and Shapiro Investigations (a company that allegedly performed investigation services for Loftus). Taus’ lawsuit included claims for infliction of emotional distress, invasion of privacy, intrusion, fraud, and defamation with respect to Taus’ mental health and fitness for military duty. Taus alleged, among other things, that Loftus had obtained an interview with Taus’ former foster mother by misrepresenting that she was Corwin’s supervisor. Loftus denies that she ever made any such misrepresentation.

The case arrived at the Supreme Court on appeal from the First District Court of Appeal’s unpublished ruling in April 2005 that Taus was sufficiently likely to prove invasion of privacy against all appellants except Tavris, and defamation as alleged against Loftus, to survive an anti-SLAPP motion. Taus v. Loftus, A104689. During Tuesday’s argument, several of the Justices expressed concern regarding Loftus’ alleged misrepresentations to obtain the interview with the foster mother. Loftus argued that Taus had no expectation of privacy because she had provided consent to Corwin to publish her account and to show videotapes of the session at issue.

The case has potential implications for journalists, among others, who argue that a ruling in favor of Taus could result in lawsuits by news sources who contend, after the fact, that reporters obtained information by misrepresentation.

Court of Appeal Denies Paris Hilton Access to Litigant’s Psychiatric Records

The Court of Appeal, Second District, has reversed the Superior Court’s denial of a motion to quash Paris Hilton’s subpoena seeking the psychiatric records of a woman suing her for $10 million. Zeta Graff is suing Hilton for defamation after Hilton allegedly planted false stories about a run-in between the two women at a London nightclub.

In response to Graff’s claim for damages, Hilton issued a subpoena to Graff’s psychiatrist to obtain evidence of emotional distress. Graff asked Judge Gerald Rosenberg of the Los Angeles Superior Court to quash the subpoena, asserting that such information was protected by the physician-patient and psychotherapist-patient privileges. The Superior Court denied the motion to quash.

In an unpublished opinion, the Court of Appeals reversed the Superior Court. The court reasoned that, because Graff stipulated at oral argument that she would not introduce psychiatric evidence, and because she sought damages only for the “pain and suffering that would normally be associated with defamation,” the normal evidentiary privileges remained intact.  Graff v. Superior Court, B194443.


Proskauer associate Cliff Davidson contributed to this post.