Florida attorneys must think before they speak because the Florida Supreme Court has narrowed the protection afforded to attorneys who make allegedly defamatory statements while questioning a potential witness during an ex-parte out of court setting. The Court clarified that Florida’s absolute privilege regarding defamatory statements made during a judicial proceeding becomes a qualified privilege during ex-parte out of court situations, which requires the plaintiff to show express malice by the person making the statement. DelMonico v. Traynor, Case No. SC10-1397, Fla. Sup. Ct. February 14, 2013 (Traynor)(available here).
Florida’s absolute privilege protects attorneys, clients, witnesses, and judges from liability for potentially defamatory statements made during a judicial proceeding. The Florida Supreme Court in this case examined whether the privilege extended to statements made by an attorney who was questioning a potential non-party witness regarding a pending lawsuit when the statements were made in an ex-parte out of court setting.
The defendant in this case, Arthur Rodgers Traynor, Jr., is an attorney hired by Donovan Marine, Inc. (Donovan) and Tony Crespo, a Donovan sales representative, to defend against Daniel DelMonico’s defamation lawsuit. DelMonico is the president of MYD Marine Distributor, Inc. (MYD) and Donovan and Crespo are his competitors. DelMonico claimed that Crespo defamed him by telling some of DelMonico’s customers that DelMonico supplied prostitutes to the owner of a company doing business with Donovan. While that case was pending, DelMonico sued Traynor and his law firm for defamation and tortious interference with a business relationship, claiming that Traynor had made false statements about DelMonico to potential witnesses in the Crespo case. Traynor and his firm moved for summary judgment, arguing that Trayor’s statements were protected by Florida’s absolute privilege. The trial court granted summary judgment in favor of Traynor and his firm. On appeal, the Fourth District Court of Appeal affirmed, stating that Traynor “should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding.” DelMonico v. Traynor, 50 So. 3d 4, 7 (Fla. 4th DCA 2010) (DelMonico).
The lower courts relied on the Florida Supreme Court’s decision in a 1994 case, Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994), to hold that any statements made during a potential witness interview are absolutely privileged if the statements have some relation or connection with the pending lawsuit. DelMonico, 50 So. 3d 4. The Florida Supreme Court disagreed:
“In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte,
out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.” Traynor, Slip Op. P. 2.
In this case, the Court explained that when the absolute privilege applies, it applies because of specific safeguards that are in place at the time of the statements. First, these defamatory statements were made either in front of a judicial officer, or in a court document filed with the judicial body. This means that these statements are recorded, and as a result minimize possible factual disputes. Second, harm caused by defamatory statements made during a judicial proceeding can be minimized by judicial formal requirements, such as notice and a hearing. Third, the trial court has the power to expunge or strike irrelevant defamatory material from the pleadings and can punish the speaker with contempt of court. Fourth, the trial judge has the ability to enforce its orders, and to protect against obstruction of justice. Traynor, Slip. Op. P. 21. The Court extended this rationale to depositions properly noticed under the Florida Rules of Civil Procedure, where the opposing counsel is present. “During depositions, a protection against abuse exists simply because the proceeding is adversarial in nature and the opposing side has an opportunity to immediately object to any untrue statements.” Traynor, Slip. Op. P. 21.
In contrast, ex-parte out of court statements cannot have the absolute privilege because these safeguards are not in place. For example, these conversations are typically not recorded in any way, which leaves open the possibility of a dispute over what was actually said. This is the issue in Traynor. As a result, the Court concluded “that only a qualified privilege should apply to statements made by attorneys as they undertake informal investigation during pending litigation and engage in ex-parte, out-of-court questioning of nonparty witnesses,” but only if the statements are relevant to the issues in the underlying lawsuit. Traynor, Slip. Op. Pp. 22-23. The Court emphasized that whether the defamatory statement is related to or connected with the underlying lawsuit is a question that must be answered by the judge. Traynor, Slip. Op. P. 23. If the statements are not related to the underlying lawsuit, there is no protection. If the judge determines that the statements are related to the lawsuit, then the plaintiff must show that the statements were made with express malice.
To investigate the Crespo lawsuit, Traynor interviewed DelMonico’s ex-spouses and business associates as potential witnesses. “The crux of DelMonico and MYD’s claims was that Traynor had falsely stated to third-party witnesses during ex-parte interviews that DelMonico was being ‘prosecuted’ for using prostitution to get business.” Traynor, Slip. Op. P. 26. As a result, the trial court should not have granted Trayor’s request for summary judgment under Florida’s absolute privilege because, at best, Traynor could assert a qualified privilege if his statements were related to or connected with the underlying Crespo case. The Court agreed that Trayor’s statements were related to the Crespo case, because the Crespo case regarded statements allegedly made by Crespo that DelMonico hired prostitutes to obtain business and Traynor’s statements were directly related to the accusations against Crespo. As a result, DelMonico has the burden of showing that Traynor made the statements with express malice, where his “primary motive in making the statements was the intent to injure” DelMonico’s reputation. Fridovich, 598 So. 2d at 69. As a result, the Florida Supreme Court quashed the lower courts’ decisions, and remanded the case.