## Facts

- ABC prepared an investigative report about the “telepsychic” industry.
- An ABC reporter obtained employment at Psychic Marketing Group (PMG) using an undercover identity and worked alongside employees as a “telepsychic.”
- PMG’s work area was a large, nonpublic room with roughly 100 cubicles separated by five-foot partitions; coworkers could overhear nearby conversations, but the public was not generally present.
- The reporter secretly videotaped and recorded workplace conversations, including conversations with employee Mark Sanders, using concealed equipment.
- ABC broadcast a brief clip showing Sanders speaking in his cubicle.
- Sanders sued for common-law intrusion upon seclusion and for violation of California Penal Code § 632 (confidential communications); other claims were dismissed based on truth and newsworthiness of the broadcast content.
- In a bifurcated proceeding, the jury found for defendants on the § 632 claim, and later found for Sanders on the common-law intrusion claim and awarded damages.
- The Court of Appeal reversed, reasoning that because the conversations could be overheard by coworkers, Sanders lacked a reasonable expectation of privacy as a matter of law for intrusion purposes.

## Issues

1. Whether an employee in a nonpublic workplace lacks, as a matter of law, a reasonable expectation of privacy against covert videotaping because coworkers might overhear the conversation.
2. Whether a jury’s findings under Penal Code § 632 regarding possible overhearing (and thus lack of “confidential communication”) foreclose a common-law intrusion claim.
3. Whether “privacy” for intrusion purposes can exist in degrees, allowing protection against secret electronic recording even if conversational confidentiality is limited.

## Decision

- The California Supreme Court reversed the Court of Appeal.
- The Court held that the possibility coworkers might overhear a workplace conversation does not, by itself, eliminate a reasonable expectation of privacy against covert electronic recording by an outsider.
- The Court rejected treating the § 632 verdict as dispositive of the intrusion claim because the statutory “confidential communication” inquiry differs from the tort inquiry.
- The Court reinstated the intrusion verdict in Sanders’s favor and remanded for further proceedings, including consideration of challenges related to whether the intrusion was “highly offensive.”

## Legal Principles

- Common-law intrusion requires: (1) intrusion into a private place, conversation, or matter, and (2) intrusion conducted in a manner highly offensive to a reasonable person.
- A reasonable expectation of privacy for intrusion is not an all-or-nothing condition; it may be limited and still legally protected.
- The privacy inquiry is context-dependent and considers the identity of the intruder and the nature and means of the intrusion.
- A person may reasonably expect privacy against covert electronic recording of a conversation even if the conversation might be overheard by nearby coworkers.
- Lack of a “confidential communication” under Penal Code § 632 does not necessarily negate an intrusion claim; the statute and tort protect different interests and apply different standards.

## Conclusion

An employee working in a nonpublic workplace may maintain an intrusion claim based on covert media recording, even where coworkers could have overheard the conversation, because limited workplace privacy can include freedom from secret electronic surveillance by outsiders and must be evaluated in context rather than categorically denied.


Sanders v. Am. Broad. Cos., 20 Cal. 4th 907 (Cal. 1999)