Associate’s Corner: Post-Traynor, How Far Does Absolute Privilege Extend?

By April 12, 2013

By Marko Cerenko
Much has been written about the recent Florida Supreme Court case of Delmonico v. Traynor, which declined to extend Florida’s long standing absolute litigation privilege to statements made by an attorney during ex-parte, out of court questioning of a nonparty witness. Recently I came across an interesting twist on Traynor that will hopefully require the courts to revisit the scope of the absolute privilege.
The Traynor decision dealt with a defamation claim and since the facts of Traynor are well laid out here, they won’t be addressed in this post. It should be noted that defamation was one of the historical torts that the absolute privilege was intended to protect – libel and slander being the others.

The courts recognition of the privilege was derived from balancing two competing interests – the public interest in allowing litigants and counsel to freely and zealously advocate for their cause in court versus protecting the rights of individuals, including the right of an individual to maintain his or her reputation and not be subject to slander or malicious conduct. However, over time the absolute privilege has been applied to a host of other torts (i.e. tortious interference, malicious prosecution, abuse of process, etc.). Unfortunately for litigants, the original purpose and intent of the privilege has been eroded over time and as courts began expanding the absolute privilege to other torts.
To see the impact the Traynor decision could have on future cases, as an example, let us take a look at a claim for tortious interference that arises out of a failed, maliciously filed lawsuit: Company A sues Company B and Company B prevails, even though Company B’s business relationship with Company C is terminated as a result of the underlying lawsuit. Company B then sues Company A for tortious interference as a result of Company A maliciously filing the original lawsuit. Company A raises the litigation privilege as a defense, claiming it is absolutely immune from the tortious interference claim. In the wake of Traynor, should the absolute privilege extend to such an action? Or, should the court apply a qualified privilege, as it did in Traynor. It seems to me that the privilege should be a qualified one, and not an absolute one because absent safeguards, the value of the absolute privilege as a mechanism for discovering truth decreases while the potential for damage to a person’s or company’s reputation increases, especially when the underlying lawsuit was filed maliciously. This shift creates an unacceptable imbalance among these competing interests, heightening concerns for abuse.
Thus, if the court were to find that a qualified privilege applies in our hypothetical, then Company B would have to prove that the actions taken by Company A were done with express malice – that Company A’s primary motive in filing the underlying lawsuit was an intent to interfere with Company B’s business relationship with Company C. The question of whether the filing of the underlying lawsuit was a malicious act becomes a question for the jury and not ripe for determination in a summary judgment motion based on the absolute privilege. Based on the foregoing, a qualified privilege would better serve the historical policies for which the litigation privilege was created in the first place.