Reply Brief — Fishburne v. Cinergi Productions, Inc.

Supreme Court, U.S

% >. 2. 8

MAR 21 1996

No. 95-1262

Lie RK

IN ——EEE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

LAURENCE FISHBURNE and THE LOA

PRODUCTIONS, INC., a New York corporation,

Petitioners,

Vv.

CINERGI PRODUCTIONS, INC., a California

corporation,

CINERGI PICTURES ENTERTAINMENT INC., a

Delaware corporation,

ANDREW G. VAJNA and RANDOLPH M. PAUL,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court of the State of California

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Andrew M. White

Counsel of Record for Petitioners

Melvin N.A. Avanzado

David E. Fink

Joshua D. Helderman

Christensen, White, Miller, Fink,

Jacobs, Glaser & Shapiro, LLP

2121 Avenue of the Stars

Eighteenth Floor

Los Angeles, CA 90067

(310) 553-3000

TABLE OF CONTENTS

ee I NS a asa. ES Be OSA BN 1

MR. FISHBURNE’S RIGHT TO PRIVACY WITH

REGARD TO HIS PSYCHOTHERAPIST DIARY IS

NOT RENDERED MOOT BY HIS DECISION TO

PRODUCE IT FOR IN CAMERA INSPECTION AS

ORDERED BY THE CALIFORNIA TRIAL COURT 2

THE EXCEPTION TO THE MOOTNESS DOCTRINE

APPLIES TO MR. FISHBURNE’S RIGHT TO

PRIVACY IN HIS DIARY ENTRIES .......... 3

RE GS so 8 wee Sk ae we oN ee 5

TABLE OF AUTHORITIES

Cases Page

Murphy v. Hunt,

455 U.S. 478, 102 S. Ct. 1181 (1982) ......

United States Parole Comm’n v. Geraghty,

445 U.S. 388, 100 S. Ct. 1202 (1980) ......

Weinstein v. Bradford,

423 U.S. 147, 96 S. Ct. 347 (1975) .......

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

I

INTRODUCTION

Petitioner Laurence Fishburne submits this reply brief

in support of his petition for writ of certiorari on the sole

issue of purported “mootness" raised by Defendants’

opposition brief. As discussed below, and contrary to

Defendants’ contentions, issues raised by Mr. Fishburne’s

petition are not moot. Despite Mr. Fishburne’s decision to

produce the diary for an in camera inspection in compliance

with the order of the California trial court, Mr. Fishburne’s

constitutional rights are still subject to attack through

discovery orders sought by Defendants -- who have again

announced that they are in fact going to seek expansion of

the already overbroad trial court order which required Mr.

Fishburne to produce his psychotherapist diary for in camera

inspection. Moreover, the well recognized exception to the

mootness doctrine that issues capable of repetition but which

evade review are proper subjects for this Court's

determination. Mr. Fishburne’s right to privacy will

continue to be compromised unless the trial court’s order in

violation of Mr. Fishburne’s constitutional rights is voided.

Under these independent bases, Mr. Fishburne’s

constitutional rights must be adjudicated by this Court to

provide guidance to lower federal courts and state courts

which address these issues during civil discovery.

For these reasons, as well as those stated in Mr.

Fishburne’s petition, Mr. Fishburne respectfully requests that

this Court grant his petition for writ of certiorari.

2

I

MR. FISHBURNE’S RIGHT TO PRIVACY WITH

REGARD TO HIS PSYCHOTHERAPIST DIARY IS

NOT RENDERED MOOT BY HIS DECISION TO

PRODUCE IT FOR IN CAMERA INSPECTION AS

ORDERED BY THE CALIFORNIA TRIAL COURT

~ "In general a case becomes moot ’when the issues

presented are no longer "live" or the parties lack a legally

cognizable interest in the outcome.’" Murphy v. Hunt, 455

U.S. 478, 481, 102 S. Ct. 1181 (1982) (quoting United

States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100

S. Ct. 1202 (1980)). Thus an issue is not moot if it remains

"live" and one party (i.e. Mr. Fishburne) continues to have

a legally cognizable interest in the outcome.

The issues presented by this petition for writ of

certiorari -- the constitutionally protected interests Mr.

Fishburne maintains in his diary -- remain "live" in two

respects despite his decision to produce the psychotherapist

diary for in camera inspection pursuant to the order of the

California trial court. |

First, Mr. Fishburne’s relationship and ability to

communicate with his psychotherapist continues to be

affected by the order of the trial court. Mr. Fishburne’s

reasonable expectation of privacy in his psychotherapist-

patient relationship has been invaded by the trial court order

to produce his diary for in camera inspection. Without a

reversal from the Court, the trial court order violating Mr.

Fishburne’s constitutional rights will continue to be a legal

barrier to Mr. Fishburne’s assertion of his rights in the

future. Moreover, Mr. Fishburne must now live in fear that

his written communications, or any other aspect of his

relationship with his psychotherapist, will be compromised

3

during any litigation in which he is involved. Without the

relief sought by this petition, Mr. Fishburne’s ability to

relate his innermost thoughts and confidences to his

psychotherapist continues to be compromised.

Moreover, Defendants in this action have already

indicated their intent to seek further discovery from Mr.

Fishburne’s psychotherapist diary. Mr. Fishburne’s

constitutional rights are still at risk as a result of further

discovery of information contained in the diary -- all with a

constitutionally void trial court order in place which

confirms Mr. Fishburne’s vulnerability to such attacks.

Thus, Mr. Fishburne’s petition before this Court cannot

possibly be moot.

iil

THE EXCEPTION TO THE MOOTNESS DOCTRINE

APPLIES TO MR. FISHBURNE’S RIGHT TO

PRIVACY IN HIS DIARY ENTRIES

Even if Mr. Fishburne’s petition were technically

"moot," this Court has recognized an exception to the

mootness doctrine when an issue "is capable of repetition,

yet evading review." Weinstein v. Bradford, 423 U.S. 147,

148, 96 S. Ct. 347 (1975). This standard applies when "(1)

the challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there

was a reasonable expectation that the same complaining party

would be subjected to the same action again. " Weinstein,

423 U.S. at 149. All of these elements are present here.

Defendants have already indicated their intent to seek

further discovery from Mr. Fishburne’s psychotherapist

diary. In light of the trial court’s order requiring an in

camera inspection in violation of Mr. Fishburne’s substantial

4

constitutional rights, Mr. Fishburne’s constitutional rights

remain at risk from such attacks unless this Court declares

the civil discovery of such matters to be an unconstitutional

infringement upon Mr. Fishburne’s rights. Mr. Fishburne

did not have the opportunity to await the final adjudication

of this petition in the trial court.”

Moreover, Mr. Fishburne’s petition presents the issue

of whether communications with a psychotherapist by way

of a diary of journal is subject to civil discovery. Because

of his substantial travel schedule, Mr. Fishburne can only

communicate with his psychotherapist by way of his diary.

The trial court’s order below, requiring the in camera

production of this diary, invades Mr. Fishburne’s

constitutional rights of privacy and interferes with his

relationship with his psychotherapist. Thus, this Court has

the opportunity to review a situation "capable of repetition,

yet evading the view" -- whether written communications by

way of a diary is protected by constitutional rights of privacy

and a federal psychotherapist-patient privilege. There is no

question that Mr. Fishburne faces similar further attacks

upon his psychotherapist diary in the context of civil

litigation. Accordingly, even if Mr. Fishburne’s petition is

technically "moot," the well-recognized exception to the

mootness doctrine applies. This Court must grant Mr.

Fishburne’s petition so that lower courts will have guidance

on these issues.

a In fact, Mr. Fishburne complied with the trial

court’s order to produce the diary for in camera inspection

solely to preserve the then-scheduled trial date of March

18, 1996. The trial court nevertheless ultimately

continued the trial date until September 1996 upon

Defendants’ motion for a continuance.

5

IV

CONCLUSION

For the reasons stated in the petition for writ of

certiorari and in this reply brief, the Court is respectfully

urged to grant the writ of certiorari.

Respectfully submitted,

ANDREW M. WHITE

Counsel of Record for

Petitioners

Melvin N.A. Avanzado

David E. Fink

Joshua D. Helderman

CHRISTENSEN, WHITE,

MILLER, FINK, -

JACOBS, GLASER &

SHAPIRO, LLP

2121 Avenue of the Stars

Eighteenth Floor

Los Angeles, California

90067

(310) 553-3000