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Click here for the full text of this decision FACTS:The San Antonio Express News, a Hearst Communications subsidiary, published an article describing a blackmail scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands of dollars from Mary’s lovers by sending them draft Rule 202 petitions naming them as defendants. The 202 documents proposed to seek information on whether Ted had legal grounds for a variety of claims, including divorce and obscenity. These documents also mentioned Ted’s intent to contact the men’s wives and employers as witnesses. Under threat of litigation, as many as five men entered into settlement agreements with Ted, who received between $75,000 and $155,000 in total as a result. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the ethics of Ted’s behavior. Additionally, the story revealed details of the Roberts’ domestic life, including their purchase of a $655,000 house in a San Antonio suburb, the fact that they had an 8-year-old son and the fact that Mary was the daughter of a Lutheran minister. Authorities tried and convicted Ted Roberts on charges of theft related to the allegations in the article. The 202 documents were discovered by Ted’s former law partner Robert West and introduced in a separate Texas state court dispute between the two of them. During that litigation, Ted and Mary alleged that West copied and removed the 202 documents from their law offices. The state trial court issued a protective order, in the form of a temporary injunction, which sealed the 202 documents and barred the parties from accessing them. Ted and Mary then filed a motion to permanently seal the 202 documents and posted a public notice of their intent as required by Texas Rule of Civil Procedure 76a. The Express-News intervened to oppose the sealing. The trial court then ordered the entire record unsealed. Ted and Mary appealed, and the 4th Court of Appeals reversed. The court held that the 202 documents were not court records as defined by Rule 76a and that the first protective order issued by the trial court was therefore valid. The court modified the temporary injunction to prevent release of the information in the 202 documents to the public, as well as to the parties and their agents. Ultimately, therefore, Express-News was denied access to the 202 documents by the 4th Court of Appeals. At this point, the parties’ accounts of the facts diverged. The Express-News maintained that it obtained the 202 documents from another source and published the article. Ted and Mary argued that the Express-News violated the state court order and used the litigation documents as the primary source for the article. At some point after the publication of the article, Ted and Mary declared bankruptcy. John Patrick Lowe, the bankruptcy trustee, then brought this suit in district court on behalf of the estate seeking damages for public disclosure of private facts and intentional infliction of emotional distress. Lowe invoked diversity jurisdiction pursuant to 28 U.S.C. �1332(a)(1). On Jan. 26, 2006, the district court dismissed both claims with prejudice under Rule 12(b)(6). Lowe appealed the dismissal of only his claim for public disclosure of private facts. HOLDING:Affirmed. The court noted that, because this case was dismissed on a Rule 12(b)(6) motion, it accepted the pleadings of Lowe as true, including his allegation that Hearst violated the state court order to obtain the 202 documents. To establish a claim for the tort of invasion of privacy under Texas law based on the public disclosure of private facts, a plaintiff must show that publicity was given to matters concerning the plaintiff’s private life, the publication of which would be highly offensive to a reasonable person of ordinary sensibilities; and the matter publicized was not of legitimate public concern. The test for newsworthiness is the same under Texas state law and federal constitutional law, the court stated. The federal district court determined that Ted and Mary had a legally cognizable expectation of privacy in the published facts but found that the information in the article was of legitimate public concern. The court concluded, therefore, that Lowe could not make out a prima facie case of invasion of privacy. The 5th U.S. Circuit Court of Appeals agreed. However, Lowe contended that, regardless of the newsworthiness of the article, the district court erred in failing to address his allegation that Hearst violated the state court’s protective order by using the 202 documents as the source for its article. However, the 5th Circuit wrote, under both Texas and 5th Circuit precedent, the court may only consider the illegality of Hearst’s conduct once Lowe has established a prima facie case. Even accepting Lowe’s allegation that Hearst obtained the information in the article in violation of the court order, the court stated that “there can be no liability for invasion of privacy if the information is a matter of public concern.” In addition, Lowe argued that under the doctrine of res judicata and other theories, the state court determinations sealing the records were entitled to deference; thus, the district court was not entitled to reach an independent, differing conclusion on this issue. But the court found that the tests that the state trial court used to evaluate whether discovery documents should be protected or sealed was quite different from the analysis of whether the documents were newsworthy. Therefore, because the same determination is not at issue, there was no relevant state court determination for the district court to which the district court should have deferred. OPINION:Stewart, J.; Jones, C.J., and Jolly and Stewart, J.J.

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