Eugene Boice, John Di Palermo, and Robert Wahrman v. Unisys Corporation

MESKILL, Judge,

dissenting:

I do not agree that “[v]intage ease law demonstrates that New York bestows an absolute privilege upon those whom the government compels to give evidence.” Maj. op. at section II. Accordingly, I respectfully dissent.

It is axiomatic that this Court, sitting in diversity, is bound to follow the law of New York. New York courts consistently have held that the dispositive question for absolute immunity purposes is the nature of the proceeding in which the allegedly defamatory statement was made and, contrary to the majority’s conclusion, not whether publication of the statement was compelled by subpoena. As the New York Court of Appeals explained in the controlling case, Toker v. Pollak, 44 N.Y.2d 211 , 219, 405 N.Y.S.2d 1 , 4, 376 N.E.2d 163 , 166 (1978), the “protective shield [of absolute immunity] has been granted only to those individuals participating in a public function, such as judicial ..., legislative ..., or executive proceedings.” (emphasis added, citations omitted). Indeed, case law more vintage than that relied on by the majority makes this abundantly clear. See, e.g., Moore v. Manufacturers’ Nat’l Bank of Troy, 123 N.Y. 420, 425-26 , 25 N.E. 1048, 1049 (1890) (“There is another class of privileged communications where the privilege is absolute_ In this class are included slanderous statements made by parties, counsel or witnesses in the course of judicial proceedings, and also libelous charges in pleadings, affidavits or other papers used in the course of the prosecution or defense of an action.”); Pecue v. West, 233 N.Y. 316, 321 , 135 N.E. 515, 516 (1922) (“We have said impliedly that the rule [of absolute immunity] applies only to a proceeding in court or one before an officer having attributes similar to a court.”); Perkins v. Mitchell, 31 Barb. 461, 471 (N.Y.Sup.Ct.1860) (“The phrase employed by the judges and the text writers, in speaking of this sort of privileged communications, is ‘judicial proceedings.’”); Hosmer v. Loveland, 19 Barb. 111, 115-16 (N.Y.Sup.Ct.1854) (“[W]ords spoken or published, which, under ordinary circumstances would be slanderous or libelous, are held to be [absolutely] privileged when spoken or written on, or in connection with, a lawful occasion; that is, in a legal or judicial proceeding, parliamentary debate, applications, petitions, communications.”).

New York controlling authority does not confer absolute immunity on a party merely because the production of documents is compelled by a subpoena. See, e.g., Mancini v. Marine Midland Bank, 185 A.D.2d 682, 682 , 586 N.Y.S.2d 61 , 62 (4th Dep’t) (“the statements contained in the information subpoena were absolutely privileged because they were made in the course of a judicial proceeding in which plaintiff was a named party and were material and pertinent to the litigation”), appeal den., 80 N.Y.2d 760 , 591 N.Y.S.2d 138 , 605 N.E.2d 874 (1992). Indeed, the cases relied on by the majority —Hirshfield v. Henley, 228 N.Y. 346 , 127 N.E. 252 (1920), McLaughlin v. Charles, 14 N.Y.S. 608 (3d Dep’t 1891), and Newfield v. Copperman, 42 N.Y.Super.Ct. 302 (1877)—simply do not stand for the proposition that New York law *1152 recognizes absolute immunity under the circumstances of the case before us. Notably, Hirshfield, on which the majority principally relies, Maj. op. at section II, was not even a case involving the question of absolute immunity; rather, Hirshfield addressed the propriety of compelling a witness to testify before the Commissioner of Accounts. In any event, these cases serve only to reinforce the proposition that New York courts always have looked to the character of the proceeding in question, cloaking only judicial, legislative or executive proceedings with absolute immunity. See, e.g., McLaughlin, 14 N.Y.S. at 609 (“This investigation before the common council was then & judicial investigation in the sense that the common council could summon witnesses, administer an oath to them, and punish them for refusing to testify.... Testimony given under such circumstances is absolutely privileged.”) (emphasis added, citation omitted); Newfield, 47 How. 87 , 88 (N.Y.Sup.Ct.) (“The true doctrine is, that words spoken or written, in a judicial proceeding, by any person having an interest therein, or a duty to perform therein as witness or counsel, are not only conditionally, but absolutely privileged.”) (emphasis added), aff'd, 42 N.Y.Super.Ct. 302 (1877).

Finally, Unisys was not presented with as intractable a dilemma as the majority suggests. A qualified privilege will provide the necessary protection to those in Unisys’ predicament, as New York law fully recognizes. See Toker, 44 N.Y.2d at 219, 405 N.Y.S.2d at 5, 376 N.E.2d at 167 (“A communication is said to be qualifiedly privileged where it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs.”) (quotation omitted). Application of Toker therefore will not place a party such as “Unisys in the position of choosing between willful noncompliance with a subpoena, which would subject it to contempt proceedings, and compliance with the subpoena, which would subject it to a defamation suit.” Maj. op. at section II. Indeed, as the New York Court of Appeals commented when faced with a similar argument in Toker :

The protection afforded by a qualified privilege should not be cavalierly dismissed as inadequate. On the contrary, while not providing an absolute cloak of protection, a qualified privilege does provide an atmosphere in which a civic-minded citizen may, without fear, convey information which he believes the disclosure of which will redound to the benefit of the public. Only those who act out of malice, rather than public interest, need hesitate before speaking. It is in these latter instances that [pjroof of such indirect motive will defeat the privilege which would otherwise have attached, for it is not to the convenience and welfare of society that false and injurious communications as to the reputation of others should be made.

44 N.Y.2d at 221, 405 N.Y.S.2d at 6, 376 N.E.2d at 167 (quotation omitted). More importantly, and perhaps forgotten by the majority, a qualified privilege will better balance the needs of parties confronted with a document subpoena with the rights of those defamed by statements published in such subpoenas, as was alleged here.

Accordingly, I would affirm.