explaining that the full force of the privilege applies to statements “made either in front of a judicial officer or in pleadings or documents filed with the court or quasi- judicial body”
How later courts described this case
- explaining that the full force of the privilege applies to statements “made either in front of a judicial officer or in pleadings or documents filed with the court or quasi- judicial body”
- confirming the vitality of the absolute litigation privilege for acts that have some relation to a judicial proceeding, but holding absolute privilege does not extend to alleged defamatory ex-parte, out-of-court statement to potential nonparty witnesses in the course of investigating a pending lawsuit
- explaining that the privilege derives from balancing the public interest in a free and adversarial system against the private interests of individuals in being free from harm
- clarifying that, although not all statements made outside of the formal judicial process are protected by the litigation privilege, an absolute privilege applies to conduct occurring during the course of the proceedings
Written by the judges who cited it.
The opinion
LEWIS, J.,
dissenting.
I would not begin constructing qualified privileges (as the majority does here) and I would not superimpose the law of ex *1221 press malice into this area of the law. I would analyze the present case within our current legal framework and address whether the conduct is within the litigation privilege. Next, I would evaluate whether the alleged statements were inherently related to or connected with the underlying litigation.
I would first conclude that inquiry made as part of the litigation investigation and discovery is within the concept of litigation and can be absolutely privileged. Second, however, there are genuine issues of material fact that must be resolved by a jury concerning what statements were actually made and only then can it be determined whether the alleged statements were inherently related to or connected with the underlying litigation or beyond the litigation to be subject to relief.