Metropolitan News-Enterprise


Friday, April 17, 2020


Page 1


Court of Appeal:

Plaintiff Suing for Defamation Is Not Entitled To Sealing of Allegations Giving Rise to Suit


By a MetNews Staff Writer


A Los Angeles Superior Court judge went too far in sealing exhibits to a complaint for defamation and other torts which revealed what it was that the defendant said about the plaintiff, the Court of Appeal for this district has held, saying that the judge should have tailored the order to meet the need she perceived of protecting invaded the privacy of third parties.

Los Angeles Superior Court Judge Barbara M. Scheper, in denying a motion by the First Amendment Coalition and the Electronic Frontier Foundation to unseal the exhibits, explained that they “implicated third parties, including a minor, and the Court concluded that their right to privacy outweighed the right of the public to access this information.”

Justice Victoria Chavez of Div. Two said Wednesday in an unpublished opinion reversing Scheper “that references to third parties can be redacted or substituted with pseudonyms to protect the third parties’ right to privacy without denying public access to the exhibits in their entirety.”

Suit Over Postings

The decision comes in connection with an action in which videogame designer/executive Brian Fargo sued Jennifer Elaine Tejas for defamation, false light, and intentional infliction of emotional distress based on statements about him on her publicly accessible Instagram account. Attached to his declaration in support of a default judgment (which he obtained) were the three exhibits which Scheper sealed.

In seeking the sealing order, Fargo argued:

“Re-publishing Tejas’ defamatory statements will only make them more wide-spread than they already are and add to Plaintiff’s emotional distress.”

But it was not that contention, but the privacy interests of third parties, that prompted the sealing, Scheper explained, in denying the motion to unseal.

Paragraph of Declaration

Scheper also sealed one paragraph of Fargo’s declaration in which he told of the nature of the emotional distress her was suffering. An unsealing of that portion of the paragraph was not sought, but the two First Amendment groups challenged the sealing of the paragraph in its entirety.

Chavez agreed, saying:

“The portions of paragraph 9 that refer to respondent’s medical condition and treatment are limited and can be redacted.

“The balance of paragraph 9 contains statements that are unrelated to respondent’s medical condition or treatment but discuss harm to respondent’s reputation and future business prospects.  The threatened harm to respondent’s reputation and business prospects is not an ‘overriding interest’ sufficient to overcome the First Amendment right of access.”

Rule Not Observed

She criticized Scheper for having made the sealing order without adhering to California Rules of Court, rule 2.550 which provides that records may be sealed only if the court “expressly finds facts that establish:  [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest.”

Scheper discussed only some, but not all, of those requirements in denying the motion to unseal, Chavez noted.

The case is Fargo v. Tejas, B299393.

UCLA School of Law Professor Eugene Volokh and law student Jennifer Wilson of UCLA’s First Amendment Clinic represented the First Amendment Coalition and the Electronic Frontier Foundation. Ronald P. Oines and Kathryn Z. Domin of Rutan & Tucker were attorneys for Fargo.


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