has done nothing to deny her access to the courts of the land of her birth and citizenship since the requisite diversity of citizenship exists. This Court retains subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a).
B. Discretion under Federal Rule of Civil Procedure 17(c)
Defendants next ask this Court to exercise its discretion and withdraw its appointment of a guardian ad litem for Hilary Foretich. They claim that any further litigation is not in Hilary's best interest and that defendants will be prejudiced if Hilary does not participate in the suit. The Court does not accept this argument.
The Court has discretion under Federal Rule of Civil Procedure 17(c) to appoint a guardian ad litem for a minor child "as it deems proper for the protection of the infant . . . ." Hilary is a minor child. She was a minor when the suit was filed and when the tape was broadcast. Her guardian ad litem believes this suit has been brought to protect her interest. That belief is enough to allow her to maintain her lawsuit. Defendants' argument that they will be prejudiced by Hilary's absence from the case is speculative and need only be addressed if and when her presence in court becomes an issue.
The Court will address that issue at the appropriate time. Accordingly, the Court does not believe that plaintiffs will be prejudiced at this juncture by the fact that Hilary is out of the country.
The Court has heard from the guardian ad litem appointed by the Superior Court to represent Hilary in the custody matter and is satisfied that its continued appointment of Mr. Nathan Lewin as guardian ad litem in this action is in Hilary's best interest. Should it prove advisable as this action proceeds, the Court has the authority to take appropriate actions to protect Hilary Foretich's best interests. Until that time, it ill behooves the defendant to make an impassioned plea on behalf of Hilary's interests. Defendants' claim that the dismissal of the action would actually be beneficial to Hilary and would protect her privacy ignores the fact that it was Defendants who decided to include in their broadcast the most intimate details of this young girl's life. Defendants did so after they had been requested not to proceed with the offending segment of their broadcast. It is not for the Defendants but rather for the guardian ad litem to argue on Hilary's behalf, and this Court is satisfied that this action can go forward giving adequate protection to Hilary's present privacy interests and appropriate legal scrutiny to the question of whether any past incursions of her privacy interests have occurred.
C. Availability of a Claim for Invasion of Privacy and Intentional Infliction of Emotional Distress
Defendants argue finally that as a matter of law, Hilary Foretich cannot make a claim for invasion of privacy because (1) her alleged abuse was a matter of legitimate public concern; (2) her graphic description of her alleged abuse was already a public fact; and (3) consent was given for the defendants to broadcast this videotape. These are issues which must await a trial of this action.
To make a successful claim for invasion of privacy
based on publication of private facts in the District of Columbia, a plaintiff must prove the elements set forth in Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. App. 1989). There must be a public airing of certain previously private facts which the public has no legitimate interest in viewing. The broadcast must be found to be highly offensive to a reasonable person of ordinary sensibilities, and the plaintiff must be found not to have waived her privacy rights.
Defendants argue that as a matter of law, plaintiffs will not be able to prove some of these elements. At this point in the litigation, the Court does not find that any of the elements in this case cannot be met. The Court acknowledges that the sexual abuse of children is an issue worthy of public attention, but it does not believe as a matter of law, that the specific facts about the alleged abuse of this one particular child, Hilary Foretich, as described by the child on the videotape in question are of legitimate public concern. The legitimacy of public interest does, however, remain open as a factual question.
Defendants' argument to the contrary, the depiction on the videotape of Hilary's account of what happened to her raises the issue of whether the account remained a private fact until it was broadcast. And regarding the element of waiver or consent, there is a genuine issue of fact remaining as to whether consent was given for broadcast.
In short, Hilary Foretich when she was seven years old had what appear to be very intimate details about her personal life broadcast around the globe. She will have to live for many years with whatever consequences that broadcast may have caused, good or ill. Her interests may well have been harmed, and at the minimum she is entitled to go forward with a suit brought by her guardian ad litem to determine whether she is entitled to any relief. She should not be precluded from having her claim heard based on the record as it now stands.
Having given due consideration to each of the points made by the defendants, it is this 7 day of November, 1991, hereby
ORDERED that defendants' motion is denied.