By Matthew Neff

In DelMonico v. Traynor (SC10-1397), decided on February 14, the Supreme Court considered whether Florida’s absolute privilege protects defamatory statements “made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness while investigating matters connected to a pending lawsuit.”

DelMonico brought a defamation suit against his business competitors Donovan Marine and Tony Crespo. DelMonico accused Crespo of telling a number of his clients that DelMonico had supplied prostitutes to the owner of a company doing business with Donovan in a successful effort to lure them away. In defending against the defamation claim brought by DelMonico, Crespo retained the legal services of Arthur Rodgers Traynor. In the instant case, the DelMonico alleged that Traynor made numerous false statements about DelMonico during the course of contacting and speaking with potential witnesses. In granting Traynor’s motion for summary judgment, the trial court concluded that the plaintiff’s claims were barred because the alleged defamatory statements were absolutely privileged under Florida law. The Fourth DCA affirmed, relying on the Supreme Court’s decision in Levin, Middlebrooks, Mabie, Thomas, Mayes, & Mitchell P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994), concluding that because the statements bore some relation to the underlying proceeding they were absolutely privileged.

The Supreme Court began its analysis by discussing the public interest served by absolute privilege. The Court concluded that allowing free and full disclosure of facts during a judicial proceeding without causing the parties, judge, counsel, or witnesses fear of future civil liability benefits the public. The Court stressed the importance of balancing the public interest against the individual’s interest of not having their reputation injured. In addition, the Court elaborated on the safeguards in place in formal judicial proceedings and the role they serve in protecting against defamatory statements. Where the balance lands often depends on the safeguards in place in the particular case.

Writing for the majority, Justice Pariente concluded that defamatory statements made during ex-parte, out-of-court questioning of potential, nonparty witnesses are not absolutely privileged. Absolute privilege protects statements in the course of judicial proceedings so long as they are “connected with, or relevant or material to, the cause in hand or subject of inquiry.” It is a result of the safeguards present inside the courtroom and the formal discovery process. Absent those safeguards, the purpose of free and full disclosure of facts to uncover the truth is no longer served and the risk of reputation damage increases. In this narrow scenario, qualified privilege would apply so long as the statements bear some connection or relation to the subject of investigation in the underlying suit.

In applying the holding to the case at hand, the Court concluded that Traynor’s statements were not absolutely privileged. Instead, a defense of qualified privilege could be raised since the statements were related to the underlying suit. The Court remanded to allow DelMonico an opportunity to establish, by a preponderance of the evidence, that Traynor’s statements were false and made with express malice – “i.e., [Traynor’s] primary motive in making the statements was the intent to injure the reputation of [DelMonico].” Defamatory statements made by an attorney during the ex-parte, out-of-court (including deposition) questioning of potential, nonparty witness are not absolutely privileged.

No Absolute Privilege for Ex-parte, Out of Court Questioning of Potential Witnesses

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