Steinbuch v. Hachette Book Group

Filing 36

BRIEF IN OPPOSITION filed by Hachette Book Group re 31 Motion to Amend/Correct (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Stone, Clayborne)

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--I ce Case 1 :05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 1 of 40 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEINI3UCH Plaintiff; V. CUTLER Defendant. ) ) ) ) CASE No. ) ) ) ) ) 01:05-CV-00970 (PLF) MEMORANDUM IN OPPOSITION TO DEFENDANT'S "MOTION TO DISMISS" INTRODUCTORY STATEMENT Plaintiff and Defendant met in the Winter of 2004 and entered into a relationship in the Spring of that same year. From the inception of that relationship, unbeknownst to Plaintiff, Cutler revealed and disseminated personal, private, intimate facts about Plaintiff through her Internet website, or weblog (also knows as a "blog"), on the World Wide Web for anyone to read. Cutler also made false claims about Plaintiff in her public blog, painting Plaintiff in a false light. Cutler identified Plaintiff in various ways, including by using his name identification by people who know Plaintiff; and people who don't know him. Cutler sought and received notoriety through her public blog. Cutler went on television and radio, further publicizing her invasion of Plaintiff's privacy, and Cutler republished her privacy-invading public blog in the Guardian newspaper and in book form. Cutler's outrageous and tortious actions subjected Plaintiff to pain and suffering beyond that which any reasonable person should be expected to bear. Plaintiff filed his Complaint in May of 2005. Without providing any discovery, including that required by Fed. R. Civ. P. 26, Cutler filed a motion to dismiss the Complaint. -- for the ready Case 1 :05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 11 of 40 Cutler be tested for sexually transmitted diseases so that they would not have to make use of a condom, and statements made by Plaintiff regarding sexual positions. Complaint { 30-31. Defendant's actions constitute an improper public disclosure of private facts. See, e.g., McSurely v. McClellan, 753 F. 2d 88, 112 (D.C. Cir. 1985) (disclosure of intimate, sexual facts constitutes invasion of privacy); Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823, 840 (C.D. Cal 1998) (disclosure of private facts in explicit internet video satisfies elements of tort). B. Defendant Placed Plaintiff in a False Light .. To prevail on a false light claim. [a party] must show that (a) the published material places appellant in a false light which "would be highly offensive to a reasonable person," and (b) "the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001). Cutler published material that places Plaintiff in a false light that would be highly offensive to a reasonable person, and Cutler knew or acted recklessly as to the falsity of the material and how it placed Plaintiff in a false light. Cutler falsely claimed, inter alia, that Plaintiff: 1. liked to "do freaky shit" with Cutler, 2. "fucked [Cutler] every which way," 3. "likes talking dirty [to Cutler]" 4. is "crazy," Defendant argues that because Plaintiff and Defendant were not married, Plaintiff had no reasonable expectation of privacy in his relationship with Defendant. Defendant is mistaken. Unmarried individuals have a right to privacy. "If the right of privacy means anything, it is the right of the individua) married or single, to be Lawrence free from unwarranted governmental intrusion into matters so fundamentally affecting a person... stadt v. Bairc 405 U.S. 438, 453 (1972)) (italics in original, v. Texas, 539 U.S. 558, 565 (2003) (citing Eisen underline added). Moreover, in the public blog itself Cutler speaks in depth about marrying Plaintiff. Cutler's public blog says: "[Clan it go anywhere, i.e.[,] marriage? I don't know. He's Jewish.... After a few months, people around the office will start `hearing wedding bells.' I really just want to be a Jewish housewife with a big rock on my finger." Complaint 13. ." 11 Case 1 :05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 12 of 40 5. "implied that [Plaintiff and Cutler] would be using [handcuffs] next time," 6. would be "turned on" by Cutler getting "scared and panicky," 7. and "[Cutler] have nasty sex like animals," and 8. "told [Cutler] that he likes submissive women." Complaint 31 & Appendix A. -36 (CA These assertions constitue false light. Gill v. Curtis Pub. Co., 239 P.2d 630, 634 titutes false 1952) (depiction of "persons engaged in the so-called `wrong kind of love" cons for false light); cf Geisler v. Petrocelli, 616 F.2d 636, 637-39 (2d Cir. 98O) (valid claim dly fictional depiction of "untoward sexual conduct which is graphically portrayed [in allege book]"). es. Cutler intentionally distorted and sensationalized Plaintiff's statements and activiti to Cutler]," Notwithstanding Cutler's comments to the contrary, Plaintiff didn't do "freaky shit [ alk dirty [to Plaintiff and Cutler didn't have sex "every which way," Plaintiff didn't "like to t would be Cutler]," Plaintiff isn't "crazy," Plaintiff never "implied that [Plaintiff and Cutler] g "scared and using [handcuffsl next time," Plaintiff wouldn't be "turned on" by Cutler gettin ff ever "told panicky," Plaintiff and Cutler didn't "have nasty sex like animals," and Plainti n [Cutler] that he likes submissive women." Compliant 31. When the public blog is "read as a whole and in context," Defendant's Brief at 26, ng them Cutler's characterizions about Plaintiff's sexual activities with her, including calli ted highly unusual "freaky," gave the false and offensive impression that the Plaintiff demonstra re rather sexual behavior with Cutler. In fact, Plaintiff's sexual activities with Cutler we her sex partners. conventional, particularly when compared to what Cutler was doing with her ot aint 31, Cutler furthered the false and offensive impression of Plaintiff in her book, Compl gton falsely suggesting, inter alia, that Plaintiff was an alcoholic. See Smith v. Huntin 12 Case 1:05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 13 of 40 he intent of the Publishing Co., 410 F. Supp. 1270, 1273-74 (D. Ohio 1975) ("The test is neither t he test is author, nor the recognition by the plaintiff that the article might be about him. T plaintiff. whether a reasonable person could reasonably believe that the article referred to the e."); Cf Viewed as an invasion of privacy case, the identification v. fictional problem is the sam ction Geisler v. Petrocelli, 616 F.2d 636, 637-39 (2d Cir. 1980) (valid claim for false depi oki"). All of "untoward sexual conduct which is graphically portrayed [in allegedly fictional bo this clearly constitutes false light. C. Defendant Publicized Her Public BJog 1. Defendant Has Admitted That She Intentionally Publicized Her Public Blol! Cutler has admitted satisf'ing the publicity element of the tort of Invasion of Privacy. In as he one writing on a cover-story interview in the Washington Post Magazine, Cutler said: "I w t , Aug. 15, 2004, at the bathroom wall." April Witt, Blog Interrupte Washington Post Magazine more." 8 As W12. Cutler said: "With a blog, you can't expect your private life to be private any re posted, there Cutler admitted "once Blog entries containing the aforementioned disclosures we the four was no guarantee that Cutler could remove them without third parties (even limited to 9 rief at 37 people to whom she had given access to the Blog) having read them." Defendant's B Publicity was her goal. Cutler said: "Some people with blogs are never going to get d. ccording to famous, and they've been doing it for, like, over a year. I feel bad for them." I A 8 http://wwwplayboy.comlsexlfeatures/dc_intern/dcintemjop.html law Cutler again admits publicity: "the Blog was not publicized (within the meaning of the case ment of the tort) gntjl.. May 18, 2OO4." Defendant's Brief at 21 (emphasis added). defining the publicity ele May 18, 2004 is the Cutler suggests that another blogger publicized Cutler's blog. However, as Cutler admits, to Cutler's public blog: "links to [Cutler's publicly available] Blog date that another blogger hyperlinked Brief at 9. Cutler tries were displayed on [Cox's] popular Washington, D.C.-centered gossip site." Defendant's duced Cutler's statements; she did not. Cox merely hyperlinked to confuse the issues by implying that Cox repro al on the radio or to Cutler's own public blog. Cutler's argument is akin to arguing "I publicized the materi tised the program." This is unavailing. television, but I'm not responsible because somebody else adver . 13 Case 1 :05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 21 of 40 blog even acknowledges as being on notice that Plaintiff is "discreet" and that she should "keep 2 [his private facts] quiet." Indeed, when Defendant announced that she was writing a book, Plaintiff requested not to be in her book. Notwithstanding that, Cutler made Plaintiff the centerpiece of that book. According to Cutler's publisher (and agent), Cutler writes a "semi autobiographical novel that is sure to initiate a new Washington parlor game of Whos Who. In a witty, unapologetic voice, the novel's narrator Jackie tells the story of.. the staff counsel whose . taste for spanking she `accidentally' leaks to the office." Hyperion/Disney Advertisement for Cutler's book (reproduced on numerous sites including Moreover, Cutler continues to ignore Plaintiff's request for privacy, even in the face of litigation, by now selling her book to HBO for broadcast. 2. Even if Defendant's Assertions from Outside the Complaint Were True, Which They're Not, Cutler Cannot Make a Claim for Waiver Even if Defendant's false claims of Plaintiff somehow retroactively consenting to Cutler's limited disclosures were true and were contained in the Complaint, both of which they are not, they would not act as a waiver of Plaintiffs right to privacy. "The Court is not prepared to conclude that public exposure of one sexual encounter forever removes a person's privacy interest in all subsequent and previous sexual encounters." Michaels v. lEG, 5 F. Supp 2d at 845; Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556, 561 (Cal. Ct. App. 1988) (plaintiff's right to privacy not diminished by telling "neighbors, friends, family members, and officials" the private facts); YG, v. Jewish Hospital, 795 S.W.2d 488 (Mo. Ct. App. 1990) (plaintiffs right to privacy not diminished after telling several people); Multimedia WMAZ Inc. 20 Similarly, Cutler again relies on her own public blog as dispositive and falsely asserts that Plaintiff approved of her inappropriate office disclosure. Cutler further claims that this somehow would constitute "approval" of all other disclosures about which Plaintiff didn't know. Indeed, each time Plaintiff and Cutler discussed her inappropriate office disclosure, she apologized. Why would she apologize if she thought Plaintiffs actions constituted some curious form of after-the-fact consent to her previous actions? 21 Case 1 :05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 29 of 40 leaving out Cutler's request of both), Plaintiff's intimate personal conversations with Cutler during sexual activity and the course of their relationship, physical descriptions of Plaintiff's naked body, the physical details of the sexual positions Plaintiff assumed during sexual activity, Plaintiff's suggestion that he and Cutler be tested for sexually transmitted diseases so that they would not have to make use of a condom, and statements made by Plaintiff regarding sexual positions bear any necessary nexus to that newsworthy topic. Complaint 11 30-31. Moreover, in speaking of the "proportionality" element of the nexus test, the Court in Bonome recognized, "it is of importance that [defendant in that case] did not use [plaintiff's] name in the book. The defendants did not subject [plaintiffi to unnecessary publicity or attention." Id. At *20. In contrast, Cutler took pains identify Plaintift using his first name (Rob), his initials (RS), his religion (Jewish), his job (Committee Counsel to the Senate Committee on the Judiciary), his specific place of residence (Bethesda, MD), the fact that he has a twin; his appearance; his resemblance to a commonly known individual; and the one specific and identifiable detail of Cutler's intimate relationship with Plaintiff that Cutler apparently had previously disclosed to colleagues and co-workers without Plaintiff's permission or knowledge at the time. Complaint J12-13. Thus, instead of minimizing Plaintiff's exposure, Defendant exploited it. Indeed, Cutler used Plaintiffs identity to advertise the book she wrote based on the public blog: According to Cutler's publisher (and agent), Cutler writes a "semi-autobiographical novel that is sure to initiate a new Washington parlor game of Who Who. In a witty, unapologetic voice, the novel's narrator Jackie tells the story of.. the staff counsel whose taste for spanking she `accidentally' . leaks to the office." Hyperion/Disney Advertisement for Cutler's book (reproduced on numerous sites including; Complaint j 27-28. Cutler improperly cites Peckham v. Boston Heraki Inc., 719 N.E.2d 888, 894 (Mass. Ct. 29 Case 1:05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 32 of 40 IV. Defendant Incorrectly Asserts the Statute of Limitations Defendant claims that part of her invasion of privacy is time barred. Defendant is mistaken for four independent reasons: (1) the statute of limitations is three years for virtually all of Plaintiff's claims; (2) the public blog cannot be parsed into different parts; (3) the statute of limitations only starts to run when a victim could reasonably discover the harm caused by a tortfeasor; and, (4) even under Defendant's calculations, Plaintiff filed timely. A. The Statute of Limitations Is Three Years for Most Invasion of Privacy Claims Maryland and D.C. apply the three-year statute of limitation provided for by statute to ' 3 most invasion of privacy claims. Only those invasion of privacy claims that mimic defamation claims are limited to a one-year statute of limitations, i.e., false-light claims. Smith v. Esquire, Inc., 494 F. Supp. 967, (D. Md. 1980). Accordingly, in Smith, the Court held that if a plaintiff brings a claim for defamation and false light for the same underlying facts, the statute of limitations for the defamation action shall control both claims, because of their similarity. Id. it; however, if there is a distinct invasion of privacy claim, such as for the disclosure of private facts, then there is no such restriction on the imposed for publicizing matters concerning the private life of another "if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.' As [the Restatement] points out, not all matters are of legitimate public interest: The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational plying into private lives for its own sake with which a reasonable member of the public, with decent standards, would say that he had no concern. Id. at 308 (citations omitted). 31 Although, a choice of law analysis would have to investigate the applicability of Maryland law as the domicile of Plaintiff, the law of Maryland and the District of Columbia are the same on these issues. Cf McSurely v. McClellan, 753 F. 2d 88, 110 (D.C. Cir. 1985) ("We discern no substantial disparity in the premises underlying privacy tort law in the two jurisdictions [of the District of Columbia and Kentucky]"). 32 Case 1 :05-cv-00970-PLF-JMF Document 7 Filed 09/15/2005 Page 33 of 40 32 statute of limitation. The District of Columbia articulated the same distinction in deciding whether the statute of limitations applicable to any invasion of privacy claim shall be the oneyear statute that applies to defamation actions or the general three-year limit. See Grunseth v. Marriott Corp., 872 F. Supp. 1069, 1074-1075 (D.D.C. 1995) (invasion of privacy only limited to one year because the claim was the same as the one for defamation). In the instant case, there is no defamation action, and even if there were, Cutler acknowledges that Plaintiff brought an invasion of privacy claim based on the disclosure of private facts -- which is clearly independent from any claim of defamation. Defendant's Brief at 10-11. Accordingly, Plaintiff's claim for the disclosure of private facts is governed by the threeyear statute of limitations. The false light claim is governed by the one-year statute, and, as discussed below, Plaintiff filed within that period, as well. B. Defendant's Attempt to Parse Her Single Public BIo into Separate Documents Is Unavailing Cutler's public blog cannot be parsed into pieces. It is one document, and when accessed on the Internet, the whole document is produced -- as one. Complaint Exhibit A. Cutler admits . exactly this in her brief; she says, "read as a whole and in context, Cutler's Blog.. Defendant's Brief at 26 (emphasis added); see also Defendant's Brief at 33 ("Read in context, Cutler's.. . Blog entry for 9:53 a.m.,.. . appears to reflect. . ."). In fact, Plaintiff's colleague who made him aware of the public blog, identified him as the subject based on the entirety of the public blog. Defendant cannot now claim that the document that she herself admits is one text, should now be parsed for the benefit of her strained statute of limitations' argument. 32 The reason why this limitation only applies to the false light branch of the invasion of privacy tort and not to the rest of the branches is because false light has significant overlap with defamation. To have a different statute of limitations for these very similar causes of action would allow parties to use false light as an end-around the statute of limitations on defamation. As such, the three year statute of limitations applies to the public disclosure of private facts claim and the intentional infliction of emotional distress claim. 33

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