Commentary: Delmonico v. Traynor and "Qualified Privilege"
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. February 15, 2013
By Alan J. Kluger
Yesterday, the Florida Supreme Court issued its opinion in the case of Delmonico v. Traynor. To briefly recap the facts, Traynor represented his clients in a defamation case filed by Delmonico. In the course of his case investigation, Traynor interviewed potential witnesses and allegedly told them that Delmonico was being prosecuted for prostitution. Delmonico claimed that he lost customers as a result of the comments and sued Traynor for defamation. The 4th DCA granted Traynor’s motion for summary judgment on the grounds that the the statements made while interviewing a witness in connection with a pending litigation are absolutely privileged.
Yesterday, the Supreme Court reversed this decision, holding that the absolute privilege does not apply. The Court drew a distinction between comments made in the course of judicial proceedings and comments made privately in the course of case investigation. 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, so long as the statements are relevant to the subject of inquiry in the underlying suit. The competing public policies of safeguarding a plaintiff’s reputation and ensuring full disclosure in a judicial proceeding are better served in this circumstance by a qualified privilege.” Delmonico at p. 23-24 (internal citations omitted).
The Court set forth a test to overcome the qualified privilege: first, the statements must bear relation or be connected to the underlying litigation. Next, the plaintiff must establish, by a preponderance of the evidence, that the statements were false and made with express malice (with the intent to injure reputation). The Court remanded the case to the trial court to make those findings.
So what does this mean for litigators? Those of us that passionately advocate for our clients? I for one will have this holding in the back of my mind when questioning potential witnesses outside of the courtroom or other formal judicial proceedings. For example, it is good practice to document the investigation process by writing down all of the questions that you have for each potential witness. This will serve two purposes. First, it will prevent lawyers from shooting from the hip – using off the cuff remarks that can later get us into trouble. Second, it may be useful if witnesses either lie or misrepresent the comments that you made during the investigation. Having contemporaneously written notes may be used to rebut claims that the attorney made defamatory remarks. This opinion leaves litigators with a lot to think about as this issue develops.