100 YEARS OF INNOVATIVE LEGAL EDUCATION
FALL SEMESTER 2014
LAWS I
Legal Analysis, Writing & Skills I
LAWS I Problem Two Materials
ALL SECTIONS
Copyright © 2014
Southwestern Law School
All rights reserved.
NOT
RETURNABLE
SOUTHWESTERN LAW SCHOOL
FALL 2014 SEMESTER
LEGAL ANALYSIS, WRITING & SKILLS I
COURSE MATERIALS: SET TWO
TABLE OF CONTENTS
An Overview of the Four Problem Two Assignments ...........................................................
1
Fact File ..................................................................................................................................
3
Details Regarding The Four Assignments .............................................................................
21
Memorandum #1 ....................................................................................................................
23
Assignment #1: Secondary Source Assignment ..............................................................
25
Assignment #2: Problem Two Preparation Assignment ..................................................
27
Assignment #3: Problem Two Draft Memorandum ........................................................
29
Memorandum #2 ....................................................................................................................
31
Assignment #4: Problem Two Final Memorandum ........................................................
33
Final Problem Two Memorandum Grading Sheet, Issue One ...............................................
35
Final Problem Two Memorandum Grading Sheet, Issue Two ..............................................
36
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ii
An Overview of the Four Problem Two Assignments
You will have four assignments to complete for Problem Two. You should read
the entire packet now to become familiar with all of the assignments because you may
find relevant information on later assignments while working on earlier assignments.
The four assignments are summarized in the chart below.
Page limit violations are subject to penalties. Your professor may deduct points or
decline to provide feedback on portions of the paper that do not fit within the page limit.
Assignment
Due Date
Description
Page Limit
Evaluation
Assignment #1
Week of
Sept. 15
or 22
(your
professor
will
provide
the exact
date)
You must complete the
set of questions in the
Secondary Source
Assignment included in
this packet.
Not applicable
Pass/fail
Week of
Sept. 29
(your
professor
will
provide
the exact
date)
Your professor will
instruct you on this
assignment.
Not applicable
Pass/fail
Week of
Oct. 13
(your
professor
will
provide
the exact
date)
You must submit a
complete legal research
memorandum on the
legal issue described in
Memorandum #1
(reasonable expectation
of privacy). It must
include a Factual
Background, Question
Presented, Analysis,
and Conclusion. Your
professor may call
these sections by
different names. Your
professor may also
require a Brief Answer.
8 pages (and in
compliance
with the LAWS
Style Sheet
provided by
your professor)
Pass/fail
Secondary
Source
Assignment
Assignment #2
Problem Two
Preparation
Assignment
Assignment #3
Problem Two
Draft Legal
Research
Memorandum
1
Assignment #4
Problem Two
Final Legal
Research
Memorandum
Mon.,
Nov. 17
You must add to your
Problem Two Draft
Legal Research
Memorandum to
incorporate an analysis
of the newly assigned
second issue described
in Memorandum #2
(use of appropriate
safeguards/availability
of less intrusive means
than videotaping). The
final product should be
a cohesive
memorandum that
analyzes both issues.
13 pages (and
in compliance
with the LAWS
Style Sheet)
The Issue One (reasonable
expectation of privacy) score
will be worth 60-70% of your
grade in the course, and the
Issue Two (use of appropriate
safeguards/availability of less
intrusive means than
videotaping) score will be
worth 30-40% of your final
course grade. Your professor
will tell you the exact
distribution.
The Problem Two Grading
Sheets for Issue One and
Issue Two, provided later in
this packet, specify the basic
content and criteria upon
which the Issue One and Issue
Two scores will be based.
Your professor may provide
additional information about
his or her grading criteria.
All penalties to be applied to
the Problem Two Final Legal
Research Memorandum
(lateness, page limit
violations, etc.) will come out
of the Issue One score.
2
Fact File
(Use this Fact File for all Problem Two assignments)
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4
Interview of Jules Sanders
Conducted July 31, 2014
Re: Galiano v. Media Enterprises, Inc.
Parisi:
Today is July 31, 2014, and we are in the offices of Parisi and Boback, P.A.
It is 10 a.m. and I, Christine Parisi, am recording this interview with your
permission, Mr. Sanders. As we discussed, this is an informal interview to
get information about Ms. Sandra Galiano’s potential claim for invasion of
privacy.
Sanders:
This is just between us, right?
Parisi:
Yes, it is protected by the attorney-client privilege, and the recording will
help me with my notes from the interview. We will keep it in the file and
give you a copy, if you want it.
Sanders:
That’s fine. Go ahead.
Parisi:
Okay, please state your name and occupation for the record.
Sanders:
My name is Jules Sanders, and I am the President and CEO of Media
Enterprises.
Parisi:
What is your understanding of the situation with Ms. Galiano?
Sanders:
She is threatening to sue us for invasion of privacy. She says that we
invaded her privacy by videotaping her at work.
Parisi:
On what date did the videotaping take place?
Sanders:
On July 9 and 10, 2014. I hid a video camera in a hanging plant outside her
cubicle. I was hoping to catch her in the act of sexually harassing another
employee, Jason McFee.
Parisi:
Did you video and audio record Ms. Galiano, or was it just a video
recording?
Sanders:
Just video.
Parisi:
Okay, for some background information, tell me about your company and
what Ms. Galiano does there.
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Sanders:
Media Enterprises is a public relations and communications firm. We have
an office in downtown L.A. with 56 employees on the ninth and tenth
floors. Sandra has been my assistant for two years. She works with two
other assistants, Jackie Smith and Donna Chang, in the area outside my
office on the 10th floor.
Parisi:
Are they all your assistants?
Sanders:
Yes, but they are also assistants to Alicia Buchanan, the company’s CFO.
She has the office next to mine.
Parisi:
What are Ms. Galiano’s work duties?
Sanders:
Typical assistant duties. Things like filing, typing, making phone calls,
making copies, greeting clients.
Parisi:
And where does she normally perform these duties?
Sanders:
Usually at the desk in her cubicle. But of course, she has to leave her desk
to put files in file cabinets, make copies, and that sort of thing.
Parisi:
What made you concerned about sexual harassment?
Sanders:
Jason McFee, who works in the copy room, complained that Sandra had
sexually harassed him. He delivers copies and faxes to assistants during
business hours.
Parisi:
Did he make a formal complaint?
Sanders:
Yes, he contacted our Human Resources department on June 30 and made a
written statement, an internal “Employee Complaint.”
Parisi:
Could we get a copy of his statement?
Sanders:
Yes, I brought it with me. He said that Sandra sexually harassed him when
he delivered faxes to her cubicle in June. He asked to have another copy
room employee, Vlad Kemper, deliver faxes to her and asked for a transfer
to the ninth floor.
Parisi:
What did he accuse her of doing?
6
Sanders:
I’ll read it from the complaint. He says that she told him three times that he
“looked very hot.” She touched him repeatedly on the biceps and said,
“Those guns look ready to fire.” He claimed that she brushed up against
him and tried to touch him when he was in the cubicle. He claimed that all
of these events took place in her cubicle when no one else was around. He
asked her to stop, but she refused.
Parisi:
How did the company respond to his complaint?
Sanders:
The first thing Annie Heller, the director of Human Resources, did was
speak to Sandra. She denied everything. She said that Jason was angry that
she would not go out with him and that he raised these allegations against
her in retaliation. She said that he had no witnesses and that it was his word
against hers.
Parisi:
Did you ever speak to Ms. Galiano about it?
Sanders:
Yes, I also spoke to her, and she denied it. It was an awkward conversation.
Parisi:
Did the company take any action?
Sanders:
Not right away. All of this happened right before the Fourth of July
weekend. Both versions were possible. Sandra and Jason are both single
and in their twenties. Sandra is a high-spirited woman who likes to joke
with the other assistants. The assistants’ area got rowdy that month when
they put a picture of the World Cup soccer players near the copier. They
made jokes about which ones they wanted to date. I made them take it
down. It was disruptive. Maybe it’s true that Sandra acted inappropriately,
or maybe Jason was inspired by the soccer incident to invent the
allegations. Jason often lingered by her cubicle in the six months that he
had been working at the company. I always thought he did kind of like her.
Parisi:
What did you do next?
Sanders:
I was waiting for a recommendation from Human Resources. Annie told me
that she could not take action against Sandra without additional evidence of
harassment.
Parisi:
Had the company dealt with any other sexual harassment allegations
against Ms. Galiano?
Sanders:
No, but we paid a large damages award in a claim involving our former
CFO two years ago. The judge said we should have done more to prevent
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and correct his harassment of an office clerk. I did not want to drop the ball
on this one.
Parisi:
What happened next?
Sanders:
I wanted to know what was really going on. It would obviously set a bad
precedent if Sandra got away with sexual harassment. But it would also set
a bad precedent if employees could stir up trouble by making up charges.
Jason wanted a transfer to the Human Resources copy department, which
was on a lower floor and had higher pay. I thought of asking the assistants
for information about Sandra’s alleged conduct, but they are all good
friends. I did not think they would say anything against Sandra. I decided to
try to catch the harassment on videotape.
Parisi:
Did you discuss this with Human Resources or seek legal counsel before
making this decision?
Sanders:
I didn’t see the need. I thought it would save time and money to try to
catch Sandra harassing Jason when he came around with the faxes. I got
the idea when I went to the copier and saw her at her desk through the
cubicle’s entrance.
Parisi:
Why did you think the video camera would catch the alleged harassment?
Sanders:
Jason said that the harassment was constant, so I figured that I only needed
to tape for a couple of days to verify or disprove his claim. Vlad was on
vacation during the week of July 7, so it was a good week to try to record
her interactions with Jason.
Parisi:
Why did you think she might continue to harass him after he had
complained about it?
Sanders:
There was no guarantee, of course.
Parisi:
Did you tell anyone that you were recording Ms. Galiano?
Sanders:
No, that would defeat the purpose. Someone might have told her about the
camera.
Parisi:
Tell me about the location of the camera.
Sanders:
I put the camera in a hanging plant next to the copy machine, across from
Sandra’s cubicle, and pointed it toward the open entrance to the cubicle. It
8
was hanging about six-and-a-half feet high, a few inches above my head.
Sandra’s cubicle is six-and-a-half feet high, and the entrance is three feet
wide, and like all cubicles, it has no door. Anyone going to the copier can
turn to see Sandra through the cubicle’s entrance. And anyone watering the
plant can see the same view.
Parisi:
Who would typically walk by Ms. Galiano's cubicle?
Sanders:
Alicia and I will sometimes use the copier or drop something off at our
assistants' desks. We could see her through the entrance when we were at
the copier.
Parisi:
What about her coworkers? Did they walk around her area?
Sanders:
Yes, though none of them can see over her cubicle wall. Jason is 6'2" and I
saw him try once, craning his head, but he could not have been successful.
Jackie Smith is around 5'7" and Donna Chang is about 5'1", so they
obviously can’t see over the cubicle walls. They usually stay in their
cubicles but walk around to use the copier, the bathrooms, to talk to each
other or to me.
Parisi:
Are there time periods when no one would normally see Ms. Galiano?
Sanders:
I guess there can be long stretches when no one is walking by the copier.
But anyone can go by at any time. When it’s very busy, someone will
frequently be around the copier.
Parisi:
Would any other employees use the area?
Sanders:
There are more assistants past a carpeted hallway west of her cubicle.
Those assistants’ work area is separated from Sandra’s cubicle by a solid
eight foot wall. I brought a sketch of the area, which was put together by
Human Resources.
Parisi:
Do you have a more formal version of this area with exact dimensions?
Sanders:
No, but we can put one together if you think it’s necessary. This shows you
the general layout.
Parisi:
Do you mind if I study this layout for a minute or two?
Sanders:
Sure, go ahead.
9
Parisi:
Okay, I think I have a better idea of how the 10th floor is set up. Let me
clarify a few things. First of all, who has access to your office space on the
10th floor?
Sanders:
During business hours, anyone can walk in because the glass entry doors
are unlocked.
Parisi:
So anyone can come in and walk back to the area where Ms. Galiano’s
cubicle is?
Sanders:
Theoretically, yes, but they aren’t supposed to. We have a receptionist near
the glass entry doors. Visitors are supposed to stop at the receptionist’s
desk first so that the receptionist can call the employee who is meeting the
visitor. Once the receptionist gets the “okay,” he will show the visitor to
the conference room or to one of the other offices on the floor.
Parisi:
What about the door that leads from the reception lobby to the area where
your office and Ms. Galiano’s cubicle are? Is that door usually locked?
Sanders:
No. There is no lock on it.
Parisi:
Is it usually kept closed?
Sanders:
Yes, it is.
Parisi:
Okay, back to the copy machine. If someone is standing at the copy
machine, what exactly can they see inside Ms. Galiano’s cubicle?
Sanders:
They could basically see most of the cubicle from the entrance to the back
wall. That includes her sitting at the left side of her desk – I mean the side
of the desk that is closest to the opening to the cubicle. If she rolled her
chair to the side of the desk that is farthest from the opening, they could not
see her. But they could see her if she was in the middle of the cubicle.
Parisi:
So you’re saying that if she were sitting at the right side of the desk, she
could not be seen by whoever was at the copy machine?
Sanders:
Right.
Parisi:
So, you said that you put the camera in a hanging plant across from the
entrance to the cubicle. Did the camera catch any view that would be
different than what you explained people could see from the copier?
10
Sanders:
No. It captured anything that Sandra did near the entrance to her cubicle,
the middle, and the back of the cubicle, but it could not record her if she
was sitting at the right corner of her desk. Of course, the camera picked up
things she did when she thought no one was looking. After all, the idea
was to catch her trying to touch Jason.
Parisi:
Please describe the rest of the room where the camera was located.
Sanders:
It has three six-by-six-feet cubicles, whose walls are at least six-and-a-half
feet high, a hallway, and a copy machine. Three of the four walls of
Sandra’s cubicle are six-and-a-half feet high. The only wall that is higher is
the back wall, which is eight feet high and separates her cubicle from the
reception area. Donna’s cubicle has four walls. Two are six-and-a-half feet
high, but the walls separating her cubicle from the reception area and the
hallway leading to the reception area are eight feet high. All of the walls of
Jackie’s cubicle are six-and-a-half feet tall. All of the entrances to the
cubicles are three feet wide. The assistants’ area has wall-to-wall carpeting
and is connected to my office and to Alicia Buchanan's office. There is a
door to the outer reception area, which has a tiled hallway.
Parisi:
Could Ms. Galiano hear people if they came within the range of her
cubicle?
Sanders:
Probably yes.
Parisi:
What about office windows? Are there windows in your office or Ms.
Buchanan’s office that look out into the inside of the building?
Sanders:
No. The only windows in our offices look to the outside of the building.
Parisi:
What about the cubicles? Do they have windows?
Sanders:
No.
Parisi:
Why didn’t you put the camera or cameras anywhere else?
Sanders:
I read an internet article that said I could not put a camera in a private area
without risking some liability. The plant was the most public area I could
think of that could still possibly catch her harassing Jason in her cubicle.
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Parisi:
You said earlier that the camera only recorded during working hours. What
hours did it record her?
Sanders:
Business hours are from 9 a.m. to 6 p.m. with lunch from 12 p.m. to 1 p.m.
But I only recorded her from 8:55 a.m. to 2:30 p.m., when faxes were
delivered. I particularly looked for images around the lunch hour. She
often ate at her desk, and Jason sometimes dropped off copies then. The
other assistants usually ate out.
Parisi:
Why did you stop recording at 2:30?
Sanders:
I told Jason he could stop delivering faxes after 2:30. I limited the hours
because Vlad was on vacation and Jason had to have some dedicated time
to do other jobs aside from delivering faxes. After 2:30, the assistants
would have to go to the ninth floor copy room to pick things up.
Parisi:
Did Mr. McFee deliver things on a set schedule?
Sanders:
No, he delivered documents as they came in, up until 2:30.
Parisi:
Could anyone else have access to the camera?
Sanders:
No. I put the camera up at 8:30 on the mornings of July 9 and 10. I set it to
record at 8:55, a little early just in case Jason was a little ahead of schedule.
It shut off at 2:30. Then, once the employees left at 6, I took down the
camera. As soon as I took it down, I went to my office, viewed the
contents, and locked it in my desk.
Parisi:
Who has the key to your desk?
Sanders:
Only me. No one else.
Parisi:
Did you watch all five-and-a-half hours of footage from July 9?
Sanders:
No, I fast-forwarded over long stretches of Sandra typing. I did see her put
on pantyhose in the first five minutes of the morning footage, however. The
video shows her standing up and looking outside the entrance to her
cubicle. She then sat down in the middle of her cubicle and started to roll
the stockings up her legs, revealing her bare legs, upper thighs and a small
bit of her underwear. I was surprised and then fast forwarded, looking for
images of Jason. I also saw her at her desk, the side you could see from the
copier, putting on makeup and adjusting her clothing at various times of the
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day. You can review the footage. It's nothing you couldn't see on a beach.
For what it's worth.
Parisi:
Were her legs under her desk at the time that she was putting on her hose?
Sanders:
No. Her chair was pulled back a little and she was more in the middle of
her cubicle. I guess she needed room to maneuver.
Parisi:
Do you know if anyone else was present in the area around her cubicle
when she put on the stockings?
Sanders:
Actually, I walked through the room to get some coffee from the office
kitchen before 9 a.m. It seemed empty, and the other assistants were in the
kitchen. I did not walk past Sandra's cubicle and did not see her.
Parisi:
Did you see anything else that could be considered a personal or intimate
activity by Ms. Galiano?
Sanders:
No, the stockings and the underwear are the main thing that I saw. I thought
of stopping the recording then, but decided to give it one more day.
Parisi:
Did the camera record continuously or was it motion activated?
Sanders:
It recorded continuously.
Parisi:
What about other people? Did the camera record anyone besides Ms.
Galiano?
Sanders:
Only Jason.
Parisi:
Did you capture any harassment?
Sanders:
No, nothing like that happened.
Parisi:
When did you actually stop recording?
Sanders:
Well, Sandra found the camera on July 10. She apparently went to water
the plant around 2 p.m., which was not her job, and saw the camera. It
recorded that too. Her surprise as she saw it. She then apparently hit the
play button and watched the first few minutes in her office. She then left,
went to her car in the parking garage, and looked at the rest of the video. It
included the July 9 footage. She then took it to the Human Resources
department. She was incredibly angry.
13
Parisi:
What happened next?
Sanders:
She gave the Human Resources department a copy of the video and then
filled out a complaint form. I brought a copy of both the videotape and
complaint form with me to your office. She was especially angry that she
had been seen putting on her stockings, which she had done again on July
10. The July 10 recording also shows her legs and some of her underwear
because she lifted her skirt to pull up the pantyhose. Why she did that at
work eludes me. Again, there were no images of harassment and it does not
appear to be edited. She wanted to know who had placed the camera in the
plant. Annie Heller denied any knowledge of the video and said she would
investigate the matter.
Parisi:
Does Ms. Galiano now know that you created the recording?
Sanders:
Yes. After Sandra filled out the complaint form with HR, she went to me
next to complain about the "anonymous video stalker" and I told her that I
had done it. I told Sandra that no one else had seen the video. I also told her
that, as an employer, I had the right to investigate sexual harassment in the
workplace.
Parisi:
How did she respond?
Sanders:
Sandra kept the original video and is threatening to sue us for invasion of
privacy. She wants a large severance package, including six months of
salary. She says she is emotionally distressed from being recorded without
her knowledge and that she can never work with me again.
Parisi:
Did you consider any alternatives to videotaping Ms. Galiano’s cubicle?
Sanders:
Well, like I said, we didn’t think that talking to her officemates would help
since they are her friends. And the harassment was only occurring in her
cubicle and nowhere else.
Parisi:
Did you consider waiting a while and asking Jason if any more incidents
had occurred?
Sanders:
Yes, but with Vlad’s vacation, it seemed like it was the best time.
Otherwise, contact between Sandra and Jason would be more limited and it
could be harder to verify Jason’s complaint.
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Parisi:
Why didn’t you honor Jason’s request to have Vlad deliver all of Ms.
Galiano’s faxes? Did you not think that would stop the harassment?
Sanders:
That would have been theoretically possible but kind of impractical. The
idea of having two people is that faxes can be delivered by the first
available person on a rolling basis. Let’s say an urgent fax comes in for
Sandra while Vlad is out delivering faxes. If we had a rule that Jason could
not deliver to her, the fax would just sit there for an hour or more until Vlad
was available again. In our business, we have a lot of issues come up that
require an immediate response. A client might fax a draft of a speech that
she is giving within the next half-hour.
Parisi:
But that is what happened while Vlad was on vacation, right? Jason had to
deliver all the faxes, not just to Ms. Galiano but to everyone? I’m sorry. I
have to ask these questions to make sure I understand your thought process
completely. I have to play devil’s advocate a bit.
Sanders:
No problem. I get it. Yes, we could do it short term and just deal with
whatever issues arose, but long term is different. You know, we can tell an
angry client that we are short-staffed due to a vacation, but that excuse will
only work once or twice. So, yeah, we can have just one delivery person
for a bit and even have employees pick up their own faxes, but as a longterm approach, that’s going to look bad for us.
Parisi:
Thank you, Mr. Sanders. I have no further questions at the moment. We
will evaluate Ms. Galiano’s claim and get back to you. If anything new
happens after this meeting, or if you have any questions, please don’t
hesitate to contact me.
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16
Media Enterprises, Inc. Employee Complaint
Jason McFee
Name of employee:
Copy Room Assistant
Job title:
June 30, 2014
Date of complaint:
Describe in detail the nature of your complaint, including names of all individuals involved, witnesses
of the incident, and any proof you might have about the complaint:
I am filing this complaint because since the beginning of this month,
I have been constantly sexually harassed by Sandra Galiano on the 10th
floor. When I go to deliver faxes and copies to her cubicle, she
touches me inappropriately and says things to me that make me feel
uncomfortable. At least three times she told me that I looked very
hot. She touches my biceps a lot and has said, “Those guns look ready
to fire.” She also brushes up against me when I’m in her cubicle
delivering stuff, and she always tries to touch me when I’m there. I
have asked her to stop touching me and saying inappropriate things to
me, but she has not stopped. I think the only witnesses are me and
Sandra. She harasses me when no one else is around.
Give details about how the incident has affected your ability to work effectively:
Sandra’s harassment makes me feel embarrassed, anxious, and nervous.
I dread getting a fax that I have to deliver to her because I know she
is going to try and touch me in some way. I cannot continue to
deliver faxes to her because whenever I do, I feel sick to my stomach,
and I worry that she is going to do something more aggressive like
grab me or try to kiss me. I cannot keep coming to work if I know
that I will have to be in the same cubicle with her.
What actions could the company take in order to effectively deal with your complaint? Have
Vlad Kemper deliver faxes and copies to Sandra so that I don’t have to
go to her cubicle anymore. And the company should transfer me to the
Human Resources copy department on the ninth floor.
Give any additional comments that would be helpful in dealing with your complaint:
Employee signature: Jason McFee
Date: June 30, 2014
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18
Media Enterprises, Inc. Employee Complaint
Sandra Galiano
Name of employee:
Executive Assistant
Job title:
July 10, 2014
Date of complaint:
Describe in detail the nature of your complaint, including names of all individuals involved, witnesses
of the incident, and any proof you might have about the complaint: The company has been
spying on me without my knowledge or consent. I discovered this just now
when I went to water the plant that is hanging outside my cubicle. When I
went to lift up the leaves to water the dirt, I saw the video camera. It
looked like the camera was pointing toward the inside of my cubicle, so I
grew suspicious. I rewound the recording and saw footage of me at my desk
yesterday and today doing what I normally do at my desk. Filing, typing,
making phone calls, etc. But the footage also showed me adjusting my
clothing, putting on makeup, and the worst was me putting on my stupid
pantyhose at the beginning of both days. The video captured me sliding on my
hose and lifting up my skirt to roll up the stockings. You could see the
full length of both my legs and my underwear! On both days, I thought that I
was alone in the office when I put on my pantyhose. I didn’t see or hear
anyone else around at the time. And it wasn’t quite 9:00 a.m. yet, so the
workday hadn’t officially started.
I don’t know who is videotaping me. And I don’t know of any witnesses.
proof is the actual videotape and video camera. I have them in my
possession.
My
Give details about how the incident has affected your ability to work effectively: I am very
nervous and scared that someone is still videotaping me without my knowledge,
and that there are videotapes of me and my bare legs and underwear on the
internet or floating around the office. If I am to continue working here, I
would feel that someone is always watching me. I cannot work effectively
feeling so anxious and nervous.
Find out
who has been videotaping me and make them stop. The person should be
prosecuted, and if it is an employee, that employee should be fired as well.
What actions could the company take in order to effectively deal with your complaint?
Give any additional comments that would be helpful in dealing with your complaint: I don’t think
that the company should be able to videotape me without my consent. And the
company definitely shouldn’t be able to videotape me doing personal and
intimate things in the privacy of my cubicle when no one else is around. I
should be able to brush my hair, apply lipstick, adjust my clothes and bra,
and of course, put on my pantyhose at my desk when no one can see me. Mr.
Sanders requires that the assistants wear pantyhose when clients are in the
office, so I have no choice but to wear them. I would put my pantyhose on in
the restroom if I could, but it’s locked until 9:00 a.m.
Employee signature: Sandra Galiano
Date: July 10, 2014
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Details Regarding the Four Assignments
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Use this memorandum to complete Assignments #1-3
MEMORANDUM #1
TO:
Junior Associate
FROM:
Christine Parisi
DATE:
September 4, 2014
SUBJECT:
Media Enterprises, Inc./Galiano Claim: Invasion of Privacy Research
Assignment
______________________________________________________________________
Thank you for agreeing to help me on this matter. Our client, Media Enterprises,
Inc., is a California company that provides public relations and communications services
to local businesses. It has retained our firm to evaluate a potential claim against it by one
of its employees, Ms. Sandra Galiano. Ms. Galiano is threatening to sue Media for
invasion of privacy after she discovered that Media was secretly videotaping her in her
cubicle at work. You can find the relevant details in the case file.
Media has asked us to determine the strength of Ms. Galiano’s claim. Our firm
will be researching and preparing a memorandum analyzing whether Media invaded Ms.
Galiano’s privacy under the California Constitution and common law. I would like you
to focus only on the first element of the invasion of privacy claim, which is whether
Media intruded upon Ms. Galiano’s reasonable expectation of privacy in the cubicle
where she was videotaped. Please focus on this element only. If she can get past this
hurdle, she would also have to prove that the videotaping was “highly offensive or
serious,” and Media could argue that it had a “reasonable justification” for videotaping
her. However, I am not interested in analyzing those issues yet.
Please also limit your analysis to the invasion of privacy claim under the
California Constitution and common law. She has not asserted any statutory claims.
Accordingly, do not include any statutes in your memorandum, and exclude any portions
of court opinions that analyze statutes even if they seem to address the reasonable
expectation of privacy. Finally, please limit your analysis to California cases and any
federal cases applying California law.
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I look forward to receiving your memorandum promptly. I will be meeting with
Media’s CEO, Mr. Jules Sanders, in a few weeks, and I want to be prepared. This is the
first time that Media has retained our firm, and therefore, we must make a good
impression.
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Assignment #1: Secondary Source Assignment
Use Chapter 5-K of the California Practice Guide: Employment Litigation (Rutter
Group), a secondary source available on WestlawNext, to answer the following
questions. None of the sections of Chapter 5-K after 5:813 will be relevant. Some, but
not all, sections before 5:814 will be relevant.
1.
Identify the two (shared) elements of workplace privacy claims under the
California Constitution and common law.
2.
Review Memorandum #1 (the first assignment memorandum in Problem Two).
Which of the two elements should you be analyzing in your Problem Two
draft?
3.
List three factors that measure the reasonableness of an expectation of privacy
under California common law?
4.
Identify three cases cited in this secondary source that you should read to
analyze the issue described in Memorandum #1.
5.
Read Hernandez v. Hillsides, which is cited in Chapter 5-K. The opinion is
divided into sections A-D. Which of these sections could be relevant to your
analysis of the issue described in Memorandum #1? More than one section
could be relevant.
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Assignment #2: Problem Two Preparation Assignment
This assignment will be described by your professor.
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Assignment #3: Problem Two Draft Legal Research Memorandum
In eight pages or less and in compliance with the LAWS Style Sheet (provided by
your professor), you need to analyze the legal issue described in Memorandum #1 from
your supervising attorney (reasonable expectation of privacy). Your memorandum must
include all of the components of a legal research memorandum including the Factual
Background, Question Presented, Analysis, and Conclusion. Your professor may call
these sections by different names and may also require a Brief Answer section. Follow
the instructions of your professor. You may also want to review the Problem Two, Issue
One Grade Sheet at the end of this packet to familiarize yourself with how the final
memorandum will be assessed.
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Use this memorandum to complete Assignment #4
MEMORANDUM #2
TO:
Junior Associate
FROM:
Christine Parisi
DATE:
October 16, 2014
SUBJECT:
Media Enterprises, Inc./Galiano Claim: Invasion of Privacy Research
Assignment
___________________________________________________________________
Thank you for your work on the “reasonable expectation of privacy” element of
Ms. Galiano’s potential invasion of privacy claim. I will review the memorandum and
provide some comments to you soon. Please do not be surprised if I ask you to make
significant edits on the memorandum; I want to have a polished end-product for the
client.
In the meantime, I have determined that we need to evaluate an additional issue. I
believe that Media had a “reasonable justification” for videotaping Ms. Galiano. Media
was reasonably justified in its actions because the videotaping was intended to prevent
and correct Ms. Galiano’s alleged sexual harassment of Mr. McFee. Media had already
lost a sexual harassment lawsuit filed by another employee in part because it had not
taken adequate remedial measures to prevent and correct the harassment. Legitimately
fearing a suit by Mr. McFee, Media videotaped Ms. Galiano in her cubicle, the location
where the alleged sexual harassment had occurred, in an attempt to catch Ms. Galiano
and to eventually stop her alleged harassment. Nevertheless, Ms. Galiano may try to
argue that despite Media’s justification, she can prevail. She will try to argue that Media
did not take appropriate safeguards to protect her privacy interests and that Media could
have used means less intrusive than secretly videotaping her in her cubicle.
Therefore, I now need you to evaluate whether Media took appropriate safeguards
or could have used means less intrusive than videotaping Ms. Galiano. Be sure to limit
your analysis to California cases and any federal cases applying California law.
31
You should refer back to the case file before proceeding with the new analysis. I
know it has some relevant information that you may not have focused on when you were
analyzing the “reasonable expectation of privacy” element.
The final product should be one memorandum that includes analysis of both the
“reasonable expectation of privacy” element and the issue of whether Media used
appropriate safeguards or could have used means less intrusive than videotaping.
You will receive my feedback on your analysis of the “reasonable expectation of
privacy” element in a couple of weeks. However, I do not want you to wait for my
feedback before starting to revise your memorandum to address this new issue. Please
start now.
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Assignment #4: Problem Two Final Memorandum
Basic Requirements. In thirteen pages or less and in compliance with the LAWS
Style Sheet, you need to analyze the legal issues described in the two memoranda from
your supervising attorney (reasonable expectation of privacy and use of appropriate
safeguards/availability of less intrusive means than videotaping). Your memorandum
must include all of the components of a legal research memorandum including the
Factual Background, Question(s) Presented, Analysis, and Conclusion. Your professor
may call these sections by different names and may also require a Brief Answer section.
Follow the instructions of your professor. You may also want to review the Problem
Two Grade Sheets at the end of this packet to familiarize yourself with how the final
memorandum will be assessed.
Strict Limitation on Assistance. You must complete the research and analysis of
the new issue without any assistance. You may seek assistance from your LAWS
professor and his or her teaching assistant, and library staff on the reasonable expectation
of privacy issue, but you may not seek assistance of any kind on the use of appropriate
safeguards/availability of less intrusive means than videotaping issue.
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FINAL PROBLEM TWO MEMORANDUM GRADING SHEET, ISSUE ONE1
Student ID ______
Total=
__________
DEDUCTIONS (e.g., late penalty, formatting, page limit violations)
__________
I.
ISSUE STATEMENT/QUESTION
PRESENTED (Issue One)
Maximum Points Possible
5
Points Received: ________
II.
STATEMENT OF FACTS
Maximum Points Possible
Points Received: ______
10
III.
SUBSTANCE OF ANALYSIS (including
use of authority and strength of arguments)
(Issue One)
Maximum Points Possible
Points Received: ______
35
IV.
ORGANIZATION OF ANALYSIS
(including large scale organization,
paragraph organization, thesis paragraph and
conclusion) (Issue One)
Maximum Points Possible
Points Received: ______
25
V.
WRITING STYLE (including grammar,
sentence structure, word usage, punctuation)
(all parts of the memorandum excluding
Issue Two)
Maximum Points Possible
Points Received: ______
15
VI.
CITATIONS (Issue One)
Maximum Points Possible
Points Received: ______
10
1
Issue One refers to the reasonable expectation of privacy issue described in Memorandum #1, and Issue Two refers
to the use of appropriate safeguards/availability of less intrusive means than videotaping issue described in
Memorandum #2.
35
FINAL PROBLEM TWO MEMORANDUM GRADING SHEET, ISSUE TWO
Student ID ______
Total=
__________
I.
ISSUE STATEMENT/QUESTION
PRESENTED (Issue Two)
Maximum Points Possible
5
Points Received: ________
II.
SUBSTANCE OF ANALYSIS (including
use of authority and strength of arguments)
(Issue Two)
Maximum Points Possible
Points Received: ______
45
III.
ORGANIZATION OF ANALYSIS
(including large scale organization,
paragraph organization, thesis paragraph and
conclusion) (Issue Two)
Maximum Points Possible
Points Received: ______
25
IV.
WRITING STYLE (including grammar,
sentence structure, word usage, punctuation)
(Issue Two)
Maximum Points Possible
Points Received: ______
15
V.
CITATIONS (Issue Two)
Maximum Points Possible
Points Received: ______
10
36