Date: 09-20-2002

Case Style: Medical Laboratory Management Consultants, et al. v. American Broadcasting Companies, Inc., et al.

Case Number: 00-15594

Judge: Procter Hug, Jr.

Court: United States Court of Appeals for the Ninth Circuit

Plaintiff's Attorney: Neville L. Johnson, Brian A. Rishwain, Johnson & Rishwain, LLP, Los Angeles, California, for the plaintiffs-appellants.

Defendant's Attorney: Andrew D. Hurwitz, Diane M. Johnsen, Osborn Maledon, P.A., Phoenix, Arizona, for the defendants-appellees.

Description: Medical Laboratory Management Consultants ("Medical Lab") and John Devaraj ("Devaraj"), a founder and owner of Medical Lab, (collectively "Plaintiffs") brought this action against American Broadcasting Companies ("ABC") and individuals allegedly involved in producing the segment Rush to Read for ABC's television program PrimeTime Live (collectively "Defendants"). The district court, exercising diversity jurisdiction under 28 U.S.C. § 1332, granted summary judgment in Defendants' favor on Devaraj's claim of intrusion upon his seclusion, Medical Lab's claims of trespass and tortious interference with contractual relations and prospective economic relations, and Plaintiffs' claims for punitive damages. Plaintiffs now appeal the district court's resolution of these claims. We have jurisdiction under 28 U.S.C. § 1291 over Plaintiffs' timely appeal of the district court's judgment, which the court entered pursuant to Federal Rule of Civil Procedure 54(b). For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

This action arises out of the videotaping and broadcast of a television segment entitled Rush To Read for ABC's television program PrimeTime Live, which uses undercover, investigative journalists to present "inside" stories of a sensational nature. Rush To Read focused on medical laboratories that analyze women's pap smears, highlighting what it perceived to be the pressures that such laboratories place on cytotechnologists1 to process pap smear slides quickly, and the resulting frequency of testing errors by such laboratories. The television segment reported the results of a study in which four laboratories, including Medical Lab, were each asked to analyze 623 pap smear slides. According to Rush To Read, Medical Lab, which was not singled out by name, but referred to only as a "lab in Arizona," failed to identify cervical cancer on several of the slides. The television segment stated that, when told of the study results, Devaraj, whom the segment did not name, but referred to only as the manager of the Arizona laboratory, said that "if mistakes were made it was an unusual circumstance, and he vowed not to take on such a large case load again." Rush To Read was 27 minutes in length, two minutes of which discussed Medical Lab as a "lab in Arizona," and 52 seconds of which used videotape taken inside Medical Lab. The videotape showed Devaraj seated, stating that the cytotechnologists that work at Medical Lab also work at other laboratories.

To obtain this content for Rush To Read, ABC producer Rhondi Charleston ("Charleston"), posing as a representative of a fictitious Michigan women's health clinic, contacted Medical Lab and arranged to have the 623 slides processed over a weekend. Another ABC producer, Robbie Gordon ("Gordon"), telephoned Devaraj to arrange a meeting at Medical Lab on the day that the slides were scheduled to arrive there. Gordon, who had no prior contact with Medical Lab, represented that she was a cytotechnologist from Georgia who wanted to start a pap smear laboratory. Gordon stated that she would be in Phoenix in a few weeks to visit friends or relatives, and asked whether she might visit Medical Lab to learn more about the pap smear testing industry. Devaraj asked Gordon a few questions, such as "Who are you?" and "Do you have enough funds available?," after which he agreed to schedule a meeting because he thought that she might be able to provide Medical Lab with some business.

On the day of the meeting, Gordon arrived with Jeff Cooke ("Cooke"), who claimed that he was a computer expert, but really was an undercover camera specialist, and with another ABC representative, who stated that she was an administrator or business manager.2 With hidden cameras located in his wig, Cooke filmed the entire visit to Medical Lab.

The three ABC representatives entered Medical Lab through an unlocked door that led into a reception room. Devaraj invited them to, and they were escorted to, a conference room in Medical Lab's administrative offices. These offices adjoin the laboratory portion of Medical Lab, which is the portion open to the public that serves patients needing blood tests or other laboratory work done. The conference room had windowed French doors that were shut for the duration of the meeting. Devaraj testified that he typically used the conference room only for private conversation and meetings of a confidential nature. Devaraj and the three ABC representatives spoke generally about the pap smear testing industry, about Medical Lab, and about Gordon's supposed plans to open her own laboratory. Devaraj did not reveal any personal information about himself, and at no point did Devaraj request that any of the matters discussed be kept confidential. Devaraj then invited the ABC representatives on a tour of Medical Lab, an invitation that Devaraj occasionally made to prospective customers, physicians, and other authorized persons. Medical Lab employees were present for portions of the conversation during the tour.

Over the weekend that Medical Lab processed the 623 pap smear slides, ABC parked a van in the Medical Lab parking lot in order to videotape cytotechnologists as they entered and left the building. ABC stationed the van there to determine whether Medical Lab was complying with federal law, which bars cytotechnologists from reading more than 100 pap smears in eight hours, and prorates the 100-slide ceiling for shorter work days. See 42 C.F.R. § 493.1257(b).

After Rush To Read aired on May 19, 1994 and again on or about September 1, 1994, Devaraj, his wife, and Medical Lab filed suit in Arizona superior court against ABC, KTVKTV, the Phoenix television station that showed Rush To Read, and several individuals, including Charleston and Gordon, that allegedly were involved in producing Rush To Read. Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 931 F. Supp. 1487, 1490 (D. Ariz. 1996) ("Med. Lab. I"). The defendants removed the action to federal court on the basis of diversity of citizenship, and moved to dismiss a number of the complaint's claims. Id. The district court dismissed all of the claims against KTVK-TV, the invasion of privacy claims asserted by Medical Lab and Devaraj's wife, as well as claims of public disclosure of private facts, conspiracy, intentional and negligent infliction of emotional distress, trade libel, and unfair business practices. Id. at 1491-94.

Devaraj and Medical Lab then filed a first amended complaint, alleging intrusion upon seclusion, fraud, tortious interference with contractual relations and prospective economic relations, trespass, defamation, false light invasion of privacy, and violation of the federal eavesdropping statute. Plaintiffs later voluntarily dismissed the defamation and false light invasion of privacy claims. Defendants moved for summary judgment on all of the remaining claims and on all punitive damages claims. Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 30 F. Supp. 2d 1182, 1186 (D. Ariz. 1998) ("Med. Lab. II"). Plaintiffs cross-moved for partial summary judgment on the fraud claim. Id. at 1201. The district court granted Defendants' summary judgment motion on all claims but the fraud claim, which the court granted in part and denied in part. Id. at 1209. The court denied Plaintiffs' motion for partial summary judgment on the fraud claim. Id. Pursuant to Federal Rule of Civil Procedure 54(b), the district court entered final judgment for Defendants on all claims but the fraud claim. Plaintiffs subsequently dismissed their fraud claim voluntarily without prejudice. Plaintiffs now appeal the district court's grant of summary judgment on Devaraj's claim of intrusion upon his seclusion, Medical Lab's claims of trespass and tortious interference with contractual relations and prospective economic relations, and their claims for punitive damages.

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Devaraj asserts that Defendants' covert videotaping of his conversation with the three undercover ABC representatives during their visit to Medical Lab is actionable under the tort of intrusion upon seclusion. The Arizona Supreme Court has recognized the invasion of privacy torts laid out in the Restatement (Second) of Torts §§ 652A et seq., which include the tort of intrusion upon seclusion, see Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 788 (Ariz. 1989), and at least one Arizona Court of Appeals decision has applied the tort of intrusion upon seclusion. See Hart v. Seven Resorts Inc., 947 P.2d 846, 853-54 (Ariz. Ct. App. 1997). The Arizona courts generally follow the Restatement in the absence of Arizona authority on an issue. Reed v. Real Detective Publ'g. Co., 162 P.2d 133, 137 (Ariz. 1945); Campbell v. Westdahl, 715 P.2d 288, 292 (Ariz. Ct. App. 1985). Consequently, we look to the Restatement for guidance regarding how the Arizona Supreme Court would resolve Devaraj's claim.

The Restatement (Second) of Torts § 652B, which sets forth the tort of intrusion upon seclusion, states: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Rest. (2d) Torts § 652B. In a comment to § 652B, the Restatement indicates: "The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs." Rest. (2d) Torts § 652B, cmt. c. "There is likewise no liability unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary man, as the result of conduct to which the reasonable man would strongly object." Rest. (2d) Torts § 652B, cmt. d.

Courts have interpreted § 652B to require a plaintiff to prove (1) an intentional intrusion into a private place, conversation, or matter (2) in a manner highly offensive to a reasonable person. See Sanders v. Am. Broad. Cos., 978 P.2d 67, 71 (Cal. 1999); People for the Ethical Treatment of Animals ("PETA") v. Bobby Berosini, Ltd., 895 P.2d 1269, 1279 (Nev. 1995). To prevail on the first prong, the plaintiff must show (a) an actual, subjective expectation of seclusion or solitude in the place, conversation, or matter, and (b) that the expectation was objectively reasonable. PETA, 895 P.2d at 1279; Kemp v. Block, 607 F. Supp. 1262, 1264 (D. Nev. 1985); see also United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978). The district court granted Defendants' motion for summary judgment on Devaraj's claim of intrusion upon his seclusion on three separate grounds. The district court concluded that any privacy expectation that Devaraj might have had in his conversation with the ABC representatives was not objectively reasonable. See Med. Lab. II, 30 F. Supp. 2d at 1189. The district court also found that the alleged intrusion was not highly offensive to a reasonable person. See id. at 1191. Alternatively, the court held that Devaraj failed to state a claim for intrusion upon his seclusion because he identified no damages from the alleged intrusion apart from those resulting from the publication of Rush To Read. See id. at 1191-2.

A. Devaraj's Expectation of Privacy.

Devaraj identifies his subjective expectation of privacy as an expectation of privacy in the location of his conversation with the undercover ABC representatives, an expectation of privacy in the contents of the conversation, and an expectation that the ABC representatives were not videotaping the conversation for broadcast to the general public. The subjective expectation of privacy may be tested by any outward manifestations that Devaraj expected his dealings with the ABC representatives to be private. See Kemp, 607 F. Supp. at 1264. "A comparison of what precautions he took to safeguard his privacy interest with the precautions he might reasonably have taken, is appropriate." Id. (citing Dow Chem. Co. v. United States, 749 F.2d 307, 312-13 (6th Cir. 1984)).

1. Location of his Conversation with ABC Representatives

Devaraj contends that he had a subjective expectation of privacy in Medical Lab's administrative offices where he conducted his meeting with the ABC representatives and gave them a tour. Medical Lab was a semi-public place of business. Although the laboratory portion of Medical Lab was open to the public, Medical Lab's administrative offices were open only to employees and invited individuals. Devaraj, however, extended such an invitation to the three ABC representatives, who were strangers to Devaraj. Devaraj's only knowledge of the three was based upon Gordon's statements that she was a cytotechnologist interested in starting her own laboratory, and upon statements that the other two ABC representatives would be involved in the computer and business administration aspects of Gordon's laboratory.

Devaraj's willingness to invite these strangers into the administrative offices for a meeting and then on a tour of the premises indicates that Devaraj did not have an objectively reasonable expectation of solitude or seclusion in the parts of Medical Lab that he showed the ABC representatives.

Devaraj's very different attitude regarding his personal office space demonstrates this expectation of privacy with respect to the portions of Medical Lab that the ABC representatives visited was not objectively reasonable. At one point during the tour of the premises, Gordon with Cooke not too far behind her walked towards Devaraj's office, the door to which was slightly ajar. Devaraj stopped Gordon, indicating that he did not want her to enter his office, and Gordon complied with his request.3 Devaraj's conduct reflects that he considered his office a place sufficiently private and personal that he did not want Gordon, a stranger, to go into it. By contrast, Devaraj's ready exposure of other parts of Medical Lab's administrative offices to the ABC representatives signals that he did not regard these parts as private places. See PETA, 895 P.2d at 1281 (an animal trainer had no subjective expectation of privacy in a hotel's backstage area where "[h]e had nothing to hide - nothing to be private about"). Thus, the ABC representatives' visit to and tour of Medical Lab's administrative offices did not intrude upon Devaraj's reasonably expected seclusion.

2. Contents of his Conversations with ABC Representatives

Devaraj also claims that he had an expectation of privacy in the contents of his conversation with the ABC representatives, particularly in the contents of the conversation that transpired in the conference room. To support this expectation, Devaraj asserts that the conversation involved his private affairs and took place mostly behind closed doors in a conference room that he typically used for private conversation.

The transcript of the recorded conversation between Devaraj and the ABC representatives belies Devaraj's contention that he disclosed private matters in the conversation. Devaraj did not reveal any information about his personal life or affairs, but only generally discussed Medical Lab's business operations, the pap smear testing industry, and Gordon's supposed plans to open her own laboratory. This information was, at most, company confidential,4 not private to Devaraj himself. Privacy is personal to individuals and does not encompass any corporate interest. This common-sense notion that privacy is an aspect of one's personal life is reflected in the law. See Rest. (2d) Torts § 652I (indicating that "[t]he right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded" and that "[a] corporation, partnership or unincorporated association has no personal right of privacy"); Reed, 162 P.2d at 139 (stating that the invasion of privacy action redresses "injury to the person" "that is wholly personal in character"). 5 Because Devaraj's conversation with the ABC representatives did not involve his private and personal affairs, Devaraj did not have an objectively reasonable expectation of privacy in the contents of the conversation.

3. Secret Videotaping for Future Public Broadcast

Lastly, Devaraj argues that he expected that the three undercover ABC representatives were not surreptitiously videotaping his dealings with them for broadcast to the general public. Devaraj's argument implicates the privacy interest that the California Supreme Court has termed the "expectation of limited privacy," which is an expectation of privacy against the electronic recording of a communication even though the speaker lacks an expectation of complete privacy in the communication. See Sanders, 978 P.2d at 71-72. The notion of limited privacy recognizes that although an individual may be visible or audible to some limited group of persons, the individual may nonetheless expect to remain secluded from other persons and particularly from the public at large. See id. at 69, 71-77 (holding that an employee engaged in personal conversation with a coworker in an office to which the general public did not have unfettered access could enjoy a limited, but legitimate, expectation that his conversation would not be secretly videotaped by an undercover television reporter, even though the conversation may not have been completely private from other coworkers); Shulman, 955 P.2d at 491-93 (holding that an injured accident victim could reasonably expect that communications with a rescue nurse that were inaudible to the general public, but possibly overheard by others involved in the rescue, would not be electronically transmitted and recorded by a television producer); see also Boddie v. Am. Broad. Cos., 731 F.2d 333, 339 n. 5 (6th Cir. 1984) (under the federal wiretap statute, a person may reasonably expect that an oral communication is not being intercepted through the use of electronic devices even though the person does not have an expectation of complete privacy).

Devaraj undeniably held the subjective expectation that the ABC representatives were not secretly videotaping his conversation with them for television broadcast. Devaraj's ignorance of the covert videotaping was essential to ABC's operation of undercover, investigative journalism. Thus, although Devaraj lacked an expectation of complete privacy in his conversation with three strangers during a business meeting, he could have reasonably expected that the conversation would be confined to them for the most part, and not widely exposed to the public at large. In imparting information to strangers, one inevitably risks its secondhand repetition. See Sanders, 978 P.2d at 72 (citing Shulman, 955 P.2d at 491). However, as the California Supreme Court has observed, there is "a substantial distinction . . . between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device." Id. (quoting Shulman, 955 P.2d at 491). The question before us then is whether Arizona law would recognize as objectively reasonable Devaraj's subjective expectation that his conversation with the ABC representatives would not be broadly disseminated to others, in other words, whether Arizona law would extend legal protection to such an expectation.

Exercising our best judgment, see Capital Dev. Co., 109 F.3d at 519, we conclude that, under Arizona law, Devaraj could not have reasonably expected privacy against the ABC representatives' secret videotaping of his communications with them. We conclude that the Arizona Supreme Court would not recognize as broad an interest in limited privacy as the California Supreme Court has done. In reaching this conclusion, we find significant the differences between the California and Arizona law in the area of electronic eavesdropping. The California Supreme Court's holding in Shulman - that an injured accident victim could reasonably expect that her conversation with a rescue nurse was not being electronically amplified and recorded through a small microphone worn by the nurse - relied upon California's Invasion of Privacy Act, which prohibits the electronic recording of any "confidential communication" without the consent of all parties to the communication. Shulman, 955 P.2d at 491 (citing Cal. Penal Code § 632(a)). Under California law, a "confidential communication" includes "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto." Cal. Penal Code § 632(c).

By comparison, Arizona law offers more limited protection against the electronic interception of oral communications. In Arizona, any person present at a conversation may record the conversation without obtaining the consent of the other parties to the conversation. See Ariz. Rev. Stat. § 13- 3005 (prohibiting the "intentional[ ] intercept[ion] [of] a conversation or discussion at which [one] is not present . . . without the consent of a party to such conversation or discussion"); Ariz. Rev. Stat. § 13-3012 (excepting from the statute's eavesdropping prohibition "[t]he interception of any . . . oral communication by any person, if the interception is effected with the consent of a party to the communication or a person who is present during the communication . . . "). Arizona law thus reflects a policy decision by the state that the secret recording of a private conversation by a party to that conversation does not violate another party's right to privacy. Under Arizona law, then, Devaraj could have no reasonable By comparison, Arizona law offers more limited protection against the electronic interception of oral communications. In Arizona, any person present at a conversation may record the conversation without obtaining the consent of the other parties to the conversation. See Ariz. Rev. Stat. § 13- 3005 (prohibiting the "intentional[ ] intercept[ion] [of] a conversation or discussion at which [one] is not present . . . without the consent of a party to such conversation or discussion"); Ariz. Rev. Stat. § 13-3012 (excepting from the statute's eavesdropping prohibition "[t]he interception of any . . . oral communication by any person, if the interception is effected with the consent of a party to the communication or a person who is present during the communication . . . "). Arizona law thus reflects a policy decision by the state that the secret recording of a private conversation by a party to that conversation does not violate another party's right to privacy. Under Arizona law, then, Devaraj could have no reasonable expectation that the ABC representatives were not surreptitiously videotaping his communications with them.

However, even if we assume that the Arizona Supreme Court would embrace an interest in limited privacy as broad as that articulated by the California Supreme Court, we still conclude that as a matter of law Devaraj's privacy expectation was not reasonable. The expectation of limited privacy in a communication - namely the expectation that a communication shared with, or possibly overheard by, a limited group of persons will nonetheless remain relatively private and secluded from the public at large - is reasonable only to the extent that the communication conveys information private and personal to the declarant. See Godbehere, 783 P.2d at 789 ("protection for privacy interests generally applies only to private matters") (citing Rest. (2d) Torts § 652A, cmt. b; Reed, 162 P.2d at 138). Shulman and Sanders, the two California Supreme Court opinions addressing the interest in limited privacy, are illustrative of this point. Both opinions recognized the limited privacy interest in the context of private and personal communications that were intercepted by the press.

Shulman involved a patient's conversation with a provider of medical care in the course of emergency treatment at an accident scene. Shulman, 955 P.2d at 474. The patient's communications with the rescue nurse were intensely private and personal. The patient made statements like, "I'm old," revealing that she was forty-seven, and "I just want to die. I don't want to go through this." Id. Although triable issues of fact existed in the case, the California Supreme Court noted the "traditional and legally well-established expectation of privacy" in "[a] patient's conversation with a provider of medical care in the course of treatment." Id. at 491. Thus, the California Supreme Court concluded that if the jury found that the patient's communications with the rescue nurse were inaudible to persons not participating in the rescue effort, then the patient reasonably could have expected that her communications would be confined to the rescue personnel and not electronically transmitted and recorded for television broadcast. Id. at 491-93; see also Sanders, 978 P.2d at 72 (stating that Shulman so held).

In Sanders, the recorded conversation between two coworkers was also of a private and personal nature. The plaintiff "discussed his personal aspirations and beliefs and gave [the defendant] a psychic reading." Sanders, 978 P.2d at 70. The California Supreme Court held that given that the workplace where this conversation took place was not generally open to the public, the plaintiff could have a reasonable expectation of privacy against a television reporter's covert videotaping of the conversation even though the plaintiff lacked a reasonable expectation of complete privacy because he was visible and audible to other coworkers. Id. at 77. Noting that the reasonableness of any expectation of limited privacy in the workplace will depend upon the particular circumstances, the California Supreme Court observed that "greater expectations of workplace privacy may be legally recognized when ‘the communication sought to be intercepted is strictly internal . . . ,' " such as the communication between the coworkers in Sanders. Id. (quoting Commonwealth v. Alexander, 708 A.2d 1251, 1257 (Pa. 1998)). However, "[i]n other circumstances, where, for example, . . . the interaction that was the subject of the alleged intrusion was between proprietor (or employee) and customer, any expectation of privacy against press recording is less likely to be deemed reasonable." Id.

The California Supreme Court distinguishes between "internal" and "external" workplace communications in assessing the likely reasonableness of any expectation of limited privacy. Unlike the "internal" conversation between coworkers in Sanders, an "external" conversation between a workplace insider, such as a proprietor, and a workplace outsider, like a customer, is more probably business-related and thus not sufficiently private and personal in character to make any privacy expectation reasonable. For example, in Desnick v. American Broadcasting Cos., 44 F.3d 1345 (7th Cir. 1995), test patients covertly videotaped their conversations with ophthalmic surgeons who recommended cataract surgery to the test patients. Desnick, 44 F.3d at 1348. The Seventh Circuit held that the surgeons had failed to state a claim for invasion of privacy because "[t]he test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves)." Id. at 1352. Accordingly, there was no "invasion of a person's private space," no "intrusion into legitimately private activities," and "no eavesdropping on a private conversation" that revealed "intimate personal facts concerning the two individual plaintiffs." Id. at 1352-53.

Likewise, in Wilkins v. National Broadcasting Co., 84 Cal. Rptr. 2d 329 (Cal. Ct. App. 1999), television producers posing as potential investors in a telecommunications company secretly videotaped a business meeting that they had with salespersons from the telecommunications company. The California court of appeal ruled that the salespersons' claim that the surreptitious videotaping intruded upon their seclusion did not survive the television producers' motion for summary judgment. Wilkins, 84 Cal. Rptr. 2d at 332. Because the salespersons "discussed business matters on the open patio of a public restaurant with four strangers," "[t]here was no intrusion into a private place, conversation or matter." Id. at 336. The court of appeal stressed that the secret videotaping did not constitute "physical or sensory intrusion into [the salespersons'] privacy," or intrusion "into the[ir] personal lives, intimate relationships, or any other private affairs." Id.

The case currently before us involves the covert videotaping of "external" workplace communications much like those recorded in Desnick and Wilkins. Devaraj, in his capacity as Medical Lab's founder and co-owner, invited three strangers whom he regarded as potential business partners, but also possible competitors, to the Medical Lab offices where they discussed business, not personal matters. As already discussed, Devaraj held no objectively reasonable expectation of privacy in the parts of Medical Lab that he showed the undercover ABC representatives. The videotaping therefore did not intrude upon any private place of his. Devaraj's subjective expectation of privacy in the contents of his conversation with the ABC representatives, which was wholly business-related and did not implicate Devaraj's private and personal affairs, was also not objectively reasonable. Thus, the videotaping did not invade any conversation or matter that was private to Devaraj. In short, Devaraj presented himself to the three strangers from ABC as no more than a public face and voice for Medical Lab. Given that Devaraj cannot assert a privacy right on behalf of Medical Lab, see Rest. (2d) Torts § 652I, Devaraj could have no reasonable expectation of limited privacy in a workplace interaction with three strangers that was purely professional and touched upon nothing private and personal to Devaraj himself.6 See Desnick, 44 F.3d at 1352-53; Wilkins, 84 Cal. Rptr. 2d at 336.

We conclude that while Devaraj may have maintained a subjective expectation of privacy over the location of his conversations with the undercover ABC representatives, an expectation of privacy in the contents of the conversation, and an expectation that against the ABC's secret videotaping of his communication for future broadcast to the general public, these expectations were not objectively reasonable.

B. The Offensiveness of the Alleged Intrusion.

Even if we assume that, under Arizona law, the ABC representatives' secret videotaping intruded upon Devaraj's reasonable expectation of privacy, the intrusion was not sufficiently offensive to state a claim for intrusion upon seclusion.

In determining whether a jury could reasonably find an alleged intrusion highly offensive, we have previously considered "the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded." Deteresa v. Am. Broad. Cos., 121 F.3d 460, 465 (9th Cir. 1997). Although no Arizona case indicates what sort of conduct constitutes a highly offensive intrusion, the illustrations in the comments to the Restatement (Second) of Torts § 652B suggest that it must be an exceptional kind of prying into another's private affairs. See Rest. (2d) Torts § 652B, cmt. b. (offering the following examples: (1) taking the photograph of a woman in the hospital with a "rare disease that arouses public curiosity" over her objection, and (2) using a telescope to look into someone's upstairs bedroom window for two weeks and taking "intimate pictures" with a telescopic lens). Moreover, when a member of the print or broadcast press commits an intrusion in order to gather news, the public's interest in the news may mitigate the offensiveness of the intrusion. See Godbehere, 783 P.2d at 788-89 (recognizing that the right to privacy should be balanced against the public interest in the information); Reed, 162 P.2d at 138 (noting that privacy rights are absent or limited "where the information would be of public benefit"); see also Shulman, 955 P.2d at 493-94 ("[T]he constitutional protection of the press does reflect the strong social interest in effective and complete reporting of events, an interest that may - as a matter of tort law - justify an intrusion that would otherwise be considered offensive.").

Any intrusion by the ABC representatives was de minimis and thus not highly offensive to a reasonable person. The covert videotaping of a business conversation among strangers in business offices does not rise to the level of an exceptional prying into another's private affairs, which the Restatement's illustrations indicate is required for "offensiveness." See Rest. (2d) § 652B. cmt. b. In addition, any offensiveness of the alleged intrusion is mitigated by the public interest in the news gathered for Rush To Read. "[W]hether . . . speech addresses a matter of public concern must be determined by [the expression's] content, form, and context . . . as revealed by the whole record." Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). There can be no doubt, as the district court found, that "[i]nformation about a medical issue with potential life and death consequences affecting millions of women is plainly an issue of public concern." Med. Lab. II, 30 F. Supp. 2d at 1193 n. 11.

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Click the case caption above for the full text of the Court's opinion.

Outcome: The district court’s judgment is AFFIRMED.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None