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Prince Harry and Meghan Markle could have an intense fight on their hands, which may not work in their favor, if their recent invasion of privacy complaint against snooping paparazzi ever saw a trial.
Last week, in a complaint submitted to a Los Angeles court on behalf of the Duke and Duchess of Sussex, and obtained by Fox News, high-power celebrity attorney Michael J. Kump stated that the filing stems from alleged "serial intrusions on the privacy of a 14-month-old child in his own home," in addition to "the desire and responsibility of any parent to do what is necessary to protect their children from this manufactured feeding frenzy."
Markle, 38, and Harry, 35, said the tabloid harassment finally came to a head when they saw that a photograph of their son Archie was being offered to media outlets that was supposedly taken on a family outing in Malibu, when it was shot while he was in their yard, unbeknownst to them.
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“Every individual and family member in California is guaranteed by law the right to privacy in their home. No drones, helicopters or telephoto lenses can take away that right,” Kump told Fox News in a statement on Thursday. “The Duke and Duchess of Sussex are filing this lawsuit to protect their young son’s right to privacy in their home without intrusion by photographers, and to uncover and stop those who seek to profit from these illegal actions.”
The Sussexes are suing three different John Doe defendants, according to the complaint, in hopes of identifying the culprit photographer and letting any potential purchasers know that such images were snapped illegally. They’re also ordering any illegal photos of Archie immediately be turned over and for additional measures are seeking compensatory and punitive damages.
Speaking to Fox News, high-power litigator Tom Lallas of Levy, Small and Lallas in Los Angeles -- who is not involved with the case -- weighed in: “I don’t want the validity of their claims to get lost in the shuffle and layered with many nuances but who are they going to win against? It's like scheduling a heavyweight fight, but not inviting the other boxer into the ring."
Lallas – an acting attorney for the late Marvel icon Stan Lee before his death – described Markle and Harry’s invasion of privacy lawsuit against three John Doe defendants as both “extremely unusual” and “extraordinary” based on the method used by the Duke and Duchess of Sussex to stifle any distribution of photos of their toddler son, Archie, 1, in their backyard that they claim were taken illegally via long lenses, drones and helicopters.
Prince Harry, Duke of Sussex, Meghan, Duchess of Sussex and their baby son Archie Mountbatten-Windsor meet Archbishop Desmond Tutu and his daughter Thandeka Tutu-Gxashe at the Desmond & Leah Tutu Legacy Foundation during their royal tour of South Africa on September 25, 2019 in Cape Town, South Africa. (Photo by Toby Melville - Pool/Getty Images)
“We studied the complaint and it is extremely unusual. And by that, I mean the complaint doesn't name any specific defendant – either an entity or an individual,” said Lallas. “This is the first time I've ever seen this in 45 years of practicing law.”
Lallas said the privacy filing is “extraordinary” because the legal system in the U.S. is based on what is called an adversarial system – the concept being there are at least two parties, consisting of a plaintiff group and a defendant group.
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“The purpose of this adversarial system is for the parties to be invested in having legitimate legal rights that they will protect and enforce before there are any matters that are prosecuted in a civil action,” Lallas explained. “Here, we don't have that. There are the plaintiffs, the Duke and the Duchess of Sussex, Prince Harry and Meghan, but there are no defendants at the table.”
Lallas maintained: “So what do we have? In my judgment, it's always important to evaluate what is the objective of the plaintiffs in a litigation. The first question is, 'Do they really expect to obtain a judgment and recover [photos] from paparazzi?' And as a trial lawyer, my answer would be a resounding, 'No. No way.'"
The attorney made it a point to note that he is a longtime peer of Markle and Harry’s representing attorneys, Dale Kinsella and Michael J. Kump, whom he revered as “impeccable” and “widely respected.”
Lallas said he certainly understands the grounds for bringing a suit of this nature to the table and explained that current privacy statutes create an arena for such a possibility.
“There is a principle in litigation that you can name a Doe defendant as a party and that's under Section 474 of the Code of Civil Procedure,” said Lallas. “And the idea is – let's say you're hit by a car and you have an automobile accident and you have the license plate of the car but you don't know who the driver was. Well, if you have the license plate, you can identify the registered owner and then sue the registered owner and name the driver as a Doe defendant, where you are going to obtain discovery to allow you to determine the identity of the Doe defendant driver.”
“But at least there you know who one of the parties is and you properly name a party that's the responsible party,” he continued. “In this case, the plaintiffs wouldn't know the identity of the paparazzi if he walked in their front door with a bouquet of flowers.”
Prince Harry and Meghan Markle have been the target of paparazzi. (Karwai Tang/WireImage via Getty Images)
Drawing from personal experience, Lallas believes Markle and Harry’s case to have “no reasonable expectation."
"A paparazzi or multiple paparazzi are just a couple of guys with cameras and the probability that these guys with cameras have any significant assets that would allow the recovery of any meaningful economic damages, whether statutory, punitive or otherwise – is dead on arrival," he said.
“So, how are they going to achieve what they want to achieve?” he pondered, explaining that typically the period in which a plaintiff is required to serve the complaint is 60 days. However, some “accommodating, indulging and liberal” judges might impose a period of 90 to 180 days to serve a summons and complaint.
“But here, think about the impracticability of this – there is no one to serve,” said Lallas, calling the complaint a “fishing expedition.”
“Fundamentally, in discovery – which is taking depositions, serving document requests and obtaining the production of documents and serving interrogatives, and there's a principle in discovery, that it has to be tailored to the specific allegations of the complaint and the matters at issue in the litigation and it can't just be a fishing expedition,” said Lallas.
Added the firm partner: “This is the quintessential fishing expedition because if you believe the plaintiffs and their attorney in this case, they have filed a civil action without naming a specific defendant to try to take discovery and how would they do that?”
“They would serve subpoenas and notices of deposition and try to take depositions of third parties in order to unmask the paparazzi or parties responsible for putting the drones over the backyard of Prince Harry and Meghan Markle, but without having any of the customary protections in a civil action where there are two parties in an adversarial context to have legitimate interests and rights to protect," Lallas said. "So I've never seen a more obvious fishing expedition, which is derivative of the fact that there are no specific defendants who are named in this action.”
Lallas claimed Harry and Markle are engaging in a “calculated strategy” to allegedly create a “chilling effect” not only for the paparazzi looking to offload allegedly illegal images of Archie for a big profit but also “for the tabloids that would discourage them by creating likely financial penalties from engaging in this kind of conduct.”
Lallas said the case carries with it some irony in the sense that Harry and Markle, on behalf of their son, “want to avoid unwanted publicity" yet "on the other hand, the mechanism they have chosen is to create more publicity to try to generate a brand in the public arena that lets the tabloids in the paparazzi know they're going to enforce their legal rights wherever it may take them.”
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“And I think that it's fairly obvious in trying to evaluate the strategy and approach that they're looking for publicity that will generate a chilling effect in order to try to create their privacy,” he alleged.
FILE - Prince Harry and Meghan, the Duke and Duchess of Sussex arrive at the annual Endeavour Fund Awards in London on March 5, 2020. The couple is suing to stop the sale of a photo of their son Archie that they say was shot at their Los Angeles-area home in invasion of their privacy. (AP Photo/Kirsty Wigglesworth, File)
Lallas likened the idea of a media entity obtaining and publishing photos from a source to a manner in which a journalist would fall on their sword to protect the identity of their own sources.
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He added: “There is a real question about whether this kind of litigation could ever be successful in identifying who were the paparazzi, who took pictures. That's an open issue. This is a peculiar, unorthodox, unusual situation where there's probably no realistic probability of a financial-economic recovery and therefore must be evaluated based on what other objectives are the lawyers and plaintiffs trying to achieve.”
Furthermore, Lallas said based on the statute 1708.8 ‘A’ and ‘B’ of the civil code that protects privacy rights and is intended to prevent the use of devices to invade zones of reasonable expectations of privacy for people, the substance of Harry and Markle’s claims is very clear.
“It's not just royalty – it's you and me in our backyard,” he said. “And as a matter of policy, the state of California has concluded that we should have reasonable expectations of privacy rights that are insulated from invasion and intrusion by third parties who have no legitimate purpose in trying to either gain content or images and likenesses.”
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“So on that point, I think that there's no question that they have legitimate rights that are worthy of protection. It's just that they don't – it's the old story of we don't know what we don't know. And they don't have a clue who's responsible here.”
The Associated Press contributed to this report
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