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Litigation Privilege Defeats Defamation Claim.

In a Tennessee defamation case, statements made in an email regarding a deposition in a federal lawsuit fell under the litigation privilege and dismissal was affirmed.

In Kilgore v. State of Tennessee, No. E2018-01790-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2019), plaintiff had been involved in a previous federal lawsuit. In the federal case, plaintiff, who owned a towing service, had brought an action against certain highway patrol officers. During that case, the officers were represented by two attorneys, Ms. Jordan and Ms. Lyford. Shortly before the scheduled deposition of a witness, the witness’s son’s business caught fire. The day before the deposition, Ms. Jordan sent an email to plaintiff’s counsel in the federal case stating that one of the co-plaintiff’s emissaries had told the witness to “watch out” and that “the timing [did] not seem to be coincidental.” The email stated that the incident would be fully investigated and that witness intimidation was a crime, and also stated that future depositions would be held at secure locations with metal detectors. Later that day, Ms. Lyford sent an email explaining that she was attempting to locate a secure location for the deposition the following day.

Plaintiff later filed this defamation case based on the statements in these two emails. Because the two attorneys who allegedly made defamatory statements were employees of the state, this case was decided by the Tennessee Claims Commission, which eventually granted defendant’s motion to dismiss based on the litigation privilege.

The litigation privilege is an absolute privilege in a defamation case, meaning that it cannot be overcome by a showing of defendant’s “malice, ill-will, or improper purpose.” (internal citation omitted). In order for the litigation privilege to apply, the statement (1) “must be made in the course of a judicial proceeding, and (2) it must be pertinent or relevant to the issue involved in said judicial proceeding.” (internal citation omitted).

After quoting extensively from the Commission’s decision, the Court of Appeals affirmed the dismissal, finding that the litigation privilege applied to the emails at issue here. First, the Court looked at whether the statements were made “in the course of a judicial proceeding.” The Court rejected plaintiff’s argument that the privilege would only apply to statements made “during the course of a trial, hearing, or the deposition itself,” noting that previous case law has held that “communications preliminary to proposed or pending litigation are absolutely privileged.” (internal citation omitted). The Court explained:

[W]hen the emails were sent by Ms. Jordan and Ms. Lyford to Claimant’s counsel, the federal litigation had already been initiated by Claimant, and the litigation had entered the discovery phase with a deposition scheduled for the next day. …We agree with the Commission’s reasoning that in this case, the arranging for and preparation for depositions and any communications relating thereto were part of the discovery process and were therefore made in the course of a judicial proceeding[.]

(internal quotation omitted).

Next, the Court analyzed whether the statements were “pertinent or relevant to the issue involved,” noting that Tennessee courts favor a liberal analysis on this point. The Court agreed with the Commission that “in addition to addressing the logistics of upcoming depositions, the statements were related to concerns of safety in upcoming depositions, whether those concerns were ultimately determined to be well-founded or not.” The Court ruled that “the emails were not so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt their irrelevancy and impropriety,” and accordingly affirmed that the privilege applied and that the defamation case should be dismissed. (internal citation omitted).

We do not often see Court of Appeals decisions written solely about the litigation privilege, so this is an important case to note if you are litigating a matter where this privilege might apply.

NOTE:  to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers.   Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented.  In this case, the opinion was released about  five months after oral argument.