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When can journalists, documentary makers, and biopic producers obtain information that causes someone else to violate a nondisclosure agreement? The question provoked a notable if confounding decision earlier this month by a Los Angeles Superior Court. It’s one that is now headed to an appeals court.
The dispute involves Univision, which produced a series about the late Mexican-American pop star Jenni Rivera. The planned series titled Su Verdadero Nombre Era Dolores (Her Real Name Was Delores) prompted Jenni Rivera’s estate to sue Pete Salgado, Rivera’s ex-business manager, who participated in the program even though he was restricted from telling her secrets because of an NDA.
Last December, Judge Michael Raphael wouldn’t allow the estate to stop the series from airing on Univision but did forbid Salgado from disclosing any more information about his former client. The judge also denied an anti-SLAPP motion that was aimed at stopping the suit from proceeding. Although Raphael agreed at the time that production of the series arises from free speech, he deemed the estate as having a good enough chance at ultimately prevailing on claims.
Next, the estate filed a second lawsuit against Univision. This one alleges tortious interference on the part of the Spanish-language network.
In response, Univision brought its own anti-SLAPP motion. One of the arguments presented to the judge was that claims from Jenni Rivera’s estate were barred by the First Amendment. That had Raphael reviewing tort liability in the gathering of publishable information.
And the judge’s decision?
“This is not a case involving the central and routine press mission of reporting newsworthy information from sources, such as confidential ones, in order to inform the public,” writes Raphael. “It is routine investigative reporting when, for instance, journalists obtain confidential information about a candidate for judicial office and publish it, as in Nicholson. There may likewise be circumstances where a reporter would be protected even in obtaining information that violates an NDA, such as if (for example) a reporter obtains a fact about a political candidate that would not otherwise have been known. This Court’s view of the case law — applying it to NDAs — is that some violations of NDAs may be protected if they involve routine reporting, but others may not if they do not involve routine reporting and implicate independent torts.”
Raphael doesn’t necessarily define what’s “routine” and what’s not, but his decision appears to be informed by the view that this television series about a celebrity was a commercial endeavor.
Elsewhere in the decision, the L.A. judge takes up an analysis on whether the claim of inducing a breach of an NDA is preempted by the Uniform Trade Secrets Act, a federal statute.
“It seems obvious that one’s own working conditions and a celebrity’s mere identity are not trade secrets,” remarks the judge in shooting down this argument. “Similarly here, the information allegedly revealed concerned Jenni Rivera and her family’s intimate affairs and the like, which appear tantamount to Salgado’s observations about Jenni Rivera’s ‘lifestyle.’ Therefore, on the present record, the facts Salgado allegedly revealed are not trade secrets.”
Univision also loses its arguments that Jenni Rivera’s estate has failed to show that information was truly secret and that the Spanish network knew about the NDA. The judge rules that the plaintiff has met pleading standards and that it is premature to deal with such issues before the benefit of discovery.
The decision (read in full here) concludes with a discussion about damages, which should probably be read in the context that the Univision series was revealed around the same time that Jenni Rivera’s estate announced its own plans for a biopic.
“In the Court’s view, while Univision does not seek to distinguish types of damages sought by the complaint, Univision’s argument is at its strongest if directed against damages from information that would not be disclosed by JRE anyway, for example, if damages were awarded on a trade libel or disparagement theory,” he writes. “Then Univision, at least, would be held liable for publishing information that arguable would not have been disclosed absent its efforts, whether those efforts were ‘routine reporting’ or not. But a significant theory in this complaint is that Univision (and Salgado) used the violation of the NDA to cause monetary damages by devaluing JRE’s own information, that is, to reduce the worth of similar information that JRE wanted to disseminate in an ‘authorized book’ or ‘authorized television show.’ This allegation seems directed at typical contractual damages from commercial activity that harms a party, not at reporting. Investigative reporters often want to get newsworthy information into the public realm; a part (and perhaps most or all) of this case is simply about who will profit when a television series about a celebrity is made.”
A notice of appeal on this decision came on Friday.
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