In this episode, Jim Garrity talks about the risk litigators face of being sued for asking deposition questions that deponents perceive as defamatory or malicious. Jim reviews the "litigation privilege," both in its absolute and qualified form, and offers practical tips based on nearly a dozen real-life cases, where deposition questions or conduct led to lawsuits against the lawyers, their clients, or both. Case cites for your use appear below in the show notes.

SHOW NOTES:

(Note: We add new cases on an episode topic as they are published. This episode contains one or more added cases. Scroll to bottom for cases added after this episode was first aired.)

Allstate Insurance Company v. Shah, et al., 2017 WL 1228406 (D. Nevada March 31, 2017) (physicians sued insurance company, a defendant in an underlying action, based in part on its counsel’s deposition questions of the doctors)

Koch v. Pechota, et al., 744 Fed. Appx. 105 (3d Cir. 2018) (video business operator sued opposing counsel, and special referee who oversaw depositions of attorney and operator, based in part on deposition examination that allegedly linked video business to child pornography)

Rabinowitz, et al. v. Wahrenberger et al., 406 N.J. Super 126 (S. Ct. N.J. App. Div. 2009) (lawyer sued for outrage and intentional/negligent infliction of emotional distress after asking father of deceased newborn, in his deposition, if he suspected his wife of murder, negligent homicide or abuse)

Suchite et al. v. Kleppin, et al., 819 F. Supp.2d 1284 (S. D. Fla. 2011) (defense counsel and client sued after deposition in which lawyer asked alleged undocumented immigrants about their immigration status, how they entered the US, about the use of “coyotes” to help bring them across the border, whether they swam, and what they would do if they encountered border patrol)

Utterback v, Trustmark National Bank and Hand Arendall LLC, 2017 WL 5654732 (S. D. Miss. 2017) (law firm and its banking client sued based in part on questions asked by the firm about the criminal background and disbarment of plaintiff; claims included defamation, invasion of privacy, tortious interference with business relationship and intentional infliction of emotional distress)

McCullough, et al. v. Kubiak, et al., 158 So. 3d 739 (Fla. 4th DCA 2015) (law firm sued after its lawyer allegedly made disparaging comments in a deposition about opposing counsel’s litigation practices in other case, was dismissed)

Sullivan v. Malta Park, et al., 156 So.3d 1200 (Ct. App. La. 2014) (lawyer sued for defamation after asking deposition questions that allegedly insinuated that deponent’s husband, who was defending his wife’s deposition, was or had had an affair with an employee of his law firm)

Nunes v. Herschman, et al., 2021 WL 49908 (Fla. 4th DCA 2021) (employee subpoenaed for deposition gave unfavorable testimony about his employer and was fired; held, anti-retaliation statute for giving testimony in “judicial proceeding” is inapplicable because deposition, literally interpreted, is not a “judicial proceeding”)

Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977) (lawyers sued each other for slander based on disputes that allegedly first arose from mid-deposition argument over whether all pertinent documents had been produced)

Myers v. Hodges, 53 Fla. 197, 209, 44 So. 357, 361 (1907) (discussing privilege, review of English cases, and surveying US law)

Freeman v. Cooper, 414 So.2d 355, 359 (La.1982) (noting that “[i]n other jurisdictions, a defamatory statement by an attorney in a judicial proceeding is absolutely privileged, if the statement has some relation to the proceeding,” but in Louisiana the privilege is a qualified one)

Ga. Code Ann. § 51-5-7, Privileged communications

Jar Allah v. Schoen, 243 Ga. App. 402, 405, 531 S.E.2d 778, 781 (2000) (“[a]n attorney at law has a conditional privilege to make, during the progress of a trial, such fair comments on the circumstances of the case and the conduct of the parties in connection therewith as in his judgment seem proper.... The attorney at law is protected by his privilege, on account of words spoken in the discharge of his duty in the regular course of judicial proceedings in the courts, unless express malice is proved”)

T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers, 31 PEPP. L. REV. 915, 918-20 (2004)

AUTHORITIES ADDED AFTER THIS EPISODE AIRED:

Clayton v. Tri City Acceptance, et al., 2019 WL 13116556 (W. D. Kentucky Jan. 17, 2019) (state's judicial-proceeding privilege protects communications in any judicial proceeding - including deposition testimony - so long as they are "pertinent and relevant" to the proceeding)

In re Zantac (Ranitidine) Prod. Liab. Litig. No. 20-MD-2924, 2020 WL 6687777, at *1 (S.D. Fla. Nov. 11, 2020) ("Counsel are reminded that this Court considers depositions to be official court proceedings, and the conduct of all participants in depositions shall be in accordance with the customs and practices expected of lawyers and witnesses appearing before this Court, as if each was appearing personally before the Court at the time of the depositions")

ADDED AFTER EPISODE AIRED:

Kasparian v. Roman, No. 22-P-231, 2023 WL 3261675, at *2 (Mass. App. Ct. May 5, 2023) (finding, without analysis, that offensive and potentially libelous comments were made during a "judicial proceeding" and thus were protected by litigation privilege: "In the present case, it cannot be disputed that Roman's comments at the deposition were made during the course of judicial proceedings. Roman's court filings likewise must receive the same protections. See Bassichis, 490 Mass. at 158 (“litigation privilege applies to an attorney's actions during the course of a judicial proceeding, just as it does to the attorney's communications”).

Black v. Woodrick, No. 07-23-00072-CV, 2023 WL 7201147, at *3 (Tex. App. Nov. 1, 2023) judicial proceedings privilege extends to “any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pretrial hearings, depositions, affidavits and any of the pleadings or other papers in the case.”)