9th Circ. Advances Safari Club’s Suit Over Secret Video

PASADENA, Calif. (CN) – A hunting club’s lawsuit against its former president on invasion of privacy claims does not constitute an attack against his free speech rights, a Ninth Circuit panel ruled Friday.

In an opinion amended from one it issued on Jan. 18, the three-judge panel affirmed a federal judge’s denial of Lawrence Rudolph’s anti-SLAPP motion after Safari Club International sued him for invasion of privacy after he recorded a conversation with the group’s then-president and posted it to YouTube.

The lawsuit has its roots in the Safari Club exiling Rudolph from the group and stripping him of his awards after his term as president. Rudolph says the club falsely believed he had an extramarital affair and submitted false invoices.

In response, Rudolph sued the club and several of its members for defamation. One of those named defendants was John Whipple, the then-president. Whipple, though, still believed that he and Rudolph were friends, and believed Rudolph when Rudolph told him that he was only a defendant as a formality.

The two met up for lunch at a wine store, where they talked at length about the legal proceedings and Whipple said, “This case is in Federal Court. I’ve been to Federal Court. It’s not a kangaroo court like the Safari Club.” Rudolph secretly recorded the conversation on audio and video and posted it to YouTube, claiming that Whipple exonerated him.

The Safari Club and Whipple then sued Rudolph on several claims, including invasion of privacy. Whipple passed away in November 2014, and the Ninth Circuit’s amended opinion states that his widow, Joan, has standing to pursue a claim for common-law invasion of privacy.

Rudolph brought an anti-SLAPP motion, and while a judge agreed on some of Rudolph’s points he ruled the club and Whipple could move forward with their claims of statutory invasion of privacy, negligence per se and common-law invasion of privacy.

U.S. District Judge Richard Seeborg, sitting by designation from the District of Northern California, authored the Ninth Circuit panel’s unanimous decision.

“On appeal, Rudolph seeks to line up the perfect shot, arguing all three claims must fail because there can be no objectively reasonable expectation of confidentiality in a conversation that occurs in a public place,” Seeborg wrote. “Rudolph’s marksmanship, apparently on target in the tundra, here is wide of the mark.”

The activity, Seeborg wrote, was taken in furtherance of Rudolph’s free speech rights and involved an issue of public interest. At the heart of the issue, though, is whether his conversation with Whipple was a “confidential communication.” The restaurant was a public setting, Rudolph argued, and Whipple and he did not have a reasonable expectation of privacy.

A jury, Seeborg wrote, could decide otherwise. Whipple testified that none of the other patrons in the restaurant could hear the two of them talking and that they “stopped talking about anything of substance” whenever someone walked to or near their table, and privacy in California is considered to be relative.

“These allegations, if ultimately proven, reflect that Rudolph recorded the conversation without Whipple’s consent, in circumstances under which Whipple reasonably could expect his statements would not be overheard,” Seeborg wrote.

As for Whipple’s personal complaint for common-law invasion of privacy, Whipple would have to demonstrate that he had an objectively reasonable expectation of privacy and that Rudolph’s intrusion was “highly offensive.” Because Whipple claimed that he was misled by someone he considered to be a friend, he showed enough merit on his claim to overcome Rudolph’s anti-SLAPP motion.

“Though Rudolph can show the claims arise from activity he took in furtherance of his right to free speech, plaintiffs can show a reasonable probability of prevailing on the challenged claims,” Seeborg wrote. “Accordingly, the district court did not err in denying in part Rudolph’s special motion to strike.”

Kenneth Argentieri from Duane Morris LLP in Pittsburgh represented Rudolph and declined to comment. Albert Nicholson from Ogletree Deakins Nash Smoak & Stewart P.C. in Costa Mesa, California, represented the club and could not be reached for comment Monday.