Meghan and Harry's Long and Unsuccessful Road to Privacy: The Litigation Friends find Themselves in California State Court

The Short Summary

 

The Duke and Duchess of Sussex, as they are named in their complaint, are suing 100 anonymous photographers for taking photographs of their 14 month old son, Archie Mountbatten-Windsor while the child was playing in their backyard.  The Sussexes allege that these photographers have utilized drone footage in order to spy on the infant child.  The Plaintiffs further allege that the photographers have cut holes in the mesh fence around the Sussex’s backyard in order to unlawfully spy on Archie.  The Sussexes claim that these unnamed paparazzi have infringed on their child’s privacy, and the privacy of other members of the Sussex household.  

 

Suing an Unknown Defendant

What is most striking about this lawsuit is the lack of a defendant.  Instead of naming an adverse party, Harry and Meghan have opted to sue 100 anonymous defendants, using “John Doe 1-100” as pseudonyms.  Many followers have pointed this out and asked whether the lawsuit is still valid if there are no named defendants.  The short answer is yes, the lawsuit can continue with fictitious defendants.  However, it is unclear at this point what will happen next.

 

Most cases with an unidentifiable defendant occur in prison lawsuits, personal injury actions and actions against the government under the FTCA.  There is a blueprint in litigation for these actions.  First, the Plaintiff sues the entity which they know harmed them.  For example, the hospital which provided negligent medical care in a medical malpractice action.  Second, if the Plaintiff does not know all of the names of those who furnished care, then he or she may name several fictitious defendants on the complaint.  That way the hospital is on there, and fictitious names hold the defendant spots for when the Plaintiff can learn the individual identities.  Third, the Plaintiff may ask the Court to proceed into discovery (this is the part of the lawsuit in which the Plaintiff and Defendant may demand evidence from each other) and upon reviewing any documents which positively identify the previously unnamed Defendants, the Plaintiff may move to amend the complaint to add those names.  In most cases the Court will allow a Plaintiff to amend a complaint as often as needed, as long as it doesn’t overly prejudice a party. 

The issue in Meghan and Harry’s case is that they did not include any entities from which to demand discovery responses.  That is why at first I assumed the suit stood a chance, but instead, they’ve listed 100 anonymous people and no entities from which they can seek identities.  At the very least they should have included the magazines which published the pictures of Archie.  Because then at least they could demand the magazines provide information on which paparazzi groups sold the pictures.  They did not do that, and I can’t fathom why.

Another problem is that the Court currently can’t do anything to help the Sussexes because there is no defendant.  In order for an action to occur, such as an injunction to prohibit a tabloid from further publishing the pictures, a court has to have jurisdiction over a defendant’s rights.  So this suit appears that it will sit in limbo until the Sussexes can add identities, and even then the Court can deny their future motions if they will unfairly prejudice the defendants.

Self-Congratulatory Introductions 

In most complaints, the Plaintiff must identify themselves.  However, typical complaints only include name and place of residence.  Any more information is unnecessary in most lawsuits.  As I shared on my Instagram story, a complaint only has to include “a short and plain statement upon which relief can be granted.”  In light of these flexible pleading standards, the Sussexes have instead put lengthy biographies about themselves.  I can let you in on a little secret, judges don’t care if you’re a humanitarian or not.  And frankly, with the justice system the way it is the less you can put into a complaint or a brief, the better.  It takes a lot of control to say what you mean in fewer words (and honestly, I’m still working on it myself) but competent legal counsel should never put that many useless phrases into the introduction of a complaint. 

This is where I started doubting their sincerity with the suit.  Everything one puts in a brief or a complaint is written with the audience in mind.  Judges really don't care what humanitarian and charity work you do.  And no competent lawyer should have put something like this in their complaint.  In fact, I think this portion was meant for public consumption.  Free publicity as it were.  It makes me a little ill to think of these celebrities using the American legal system as a marketing tool, but it is not unsurprising.  

Further, they state that they want no special treatment.  However, I think by expounding upon one’s achievements and notoriety is asking the Judge to treat them differently from other plaintiffs.  Certainly, in a case like this, it seems as though the Court will have to dismiss the case unless the Sussexes can include a defendant. 

The legal sufficiency of their claims 

I don’t want to get too far into the weeds on this bit.  But I’ll say a little bit.  If there were a defendant in this case, the first thing they would do is file what is called a motion to dismiss.  This is a response to a complaint in which the defendant says “the facts as alleged in the complaint are not sufficient.  The Court must dismiss the claims because Plaintiff has failed to state a claim upon which relief can be granted.”  That is one of the textbook motion to dismiss standards, but you can also allege that the Court lacks subject matter jurisdiction and other insufficiencies. 

 

There is no defendant to file a motion to dismiss.  And I believe that is purposeful on the Sussexes part.  I think they wanted their case to dominate the news cycle, around the same time as the excerpts from Finding Freedom hit the press.  And without a defendant they won’t have as much coverage as their current lawsuit against the Mail on Sunday.  Meghan’s loss with her claims of ‘malice’ and ‘dishonesty’ in her privacy lawsuit were all across the headlines and that also must have been quite humiliating.  In this instance, no one is going to file anything like that for a long time because as it stands, there are no adverse parties. 

(Meghan cooking up a new lawsuit)

If there were an adverse party, I think the judge would not dismiss the case.  Even though the rest of the complaint has all these puzzling facets, when it gets down to the legal nitty gritty I believe that the Sussexes have made out a prima facie case of privacy infringement.  Plus there are several public policy considerations in a case like this.  The right of quiet enjoyment is something everyone can assert in a court of law, even if they do not own the home in which he or she resides.  Under California law, all they had to plead was that the Defendant unlawfully photographed any member of their family while said family member was in their backyard or doing anything domestic.  That seems to be exactly what happened, as the photos in question look like drone images of Archie who was playing in his backyard.

The pleadings appear to be sufficient.  And I wish that the Sussex duo had let their attorneys write the entire complaint in this manner because it is concise.  (I know it may not seem like it, but this portion of the complaint does meet current pleading standards). 

What is their End Goal?

 

I put a poll on my Instagram asking my followers for any specific questions about the lawsuit.  Overwhelmingly I was asked what their end goal would be, or what I thought they were getting at.  It’s difficult to say because to me it seems unclear.  But I do have some ideas about why they pursued this lawsuit.

 

To send a warning to the Daily Mail.

 

The Sussexes mention the Daily Mail (“DM”) twice in their complaint.  Both are in reference to the DM releasing their address.  It occurred first when the Sussexes were staying in Canada and then it happened again when they moved to California.  Meghan and Harry make it very clear that they are upset with the DM releasing their address and whereabouts.  Both of the paragraphs really communicate a sense of anger from them, and to me it seems that their legal counsel has told them that they can’t seek legal actions against the DM.  However, it appears that even if they cannot sue the DM, they still wanted to take a shot at them.  This is quite normal for Meghan and Harry unfortunately.  If I were them, I would take a look at my staff and try to figure out if any of them may be leaking information to the Daily Mail.  Because it sure looks like an unfortunate trend if the DM keeps happening to find where they are staying. 

To send a message to the Royal Family.

 

Meghan and Harry still appear to be seething mad at the Royal Family for perceived slights.  I think we all remember when they weren’t allowed to profit off of their “HRH” titles, and how angry they were when they couldn’t use “Sussex Royal” as their foundation name.  To add further humiliation, President Donald Trump tweeted publicly in March that America would not pay for their security.  Trump obviously made his comments because of the wording on the now defunct Sussex Royal site, where Meghan and Harry stated that they are such important people that taxpayers need to pay for their security even as they bring in millions from speaking gigs.

 

Meghan and Harry were so humiliated that their favorite mouthpiece, Omid Scobie, immediately fired back at Trump stating that “private income” was funding the Sussexes security.  It has since come out that Prince Charles is funding everything.  Their security, their allowance and I’m sure they are relying on Charles for a lot of things behind the scenes.  And I think that Charles has made them cut their spending back.  And maybe isn’t shelling out the purported 20 million dollars that their security was going to cost.  Thus, I wouldn’t be surprised if this lawsuit is their way of showing Charles “look, it’s so unsafe for Archie here in America.  We need you to pay more for us to have even better security.”  I hope Charles remains firm, because the two left to make loads of money.  Surely, they can spare a few million to pay for their own security.  Plus, they don’t have to live in LA, aka the paparazzi capitol of the world. 

To create further victim narrative. 

 

The Sussexes have made it no secret that they want to create an image similar to Princess Diana after she and Prince Charles divorced.  And after Diana’s exit from the royal family, she was absolutely hounded by the press.  But they were not responsible for her death, it was a drunk driver.  Putting that aside though, they are following in her footsteps to an extent.  A tell-all book that they are denying having any part in will be released next month.  (Diana denied being involved in Andrew Morton’s biography, but later it was revealed that she did collaborate).  This lawsuit may have been another way to emulate Princess Diana. 

 

A part of me sincerely hopes that they filed this lawsuit in good faith.  But it doesn’t look like it to me.  There is no defendant, when they very easily could have put the magazines who published the photograph as defendants.  The legal part of this lawsuit sounds alright, but why is there so much about their charity work?  And why have they put so much narrative into a legal complaint?  I’m reading this complaint and really scratching my head.  All they had to do was plead a simple statement upon which relief could be granted.  And instead we got a resume hidden in a legal complaint.