Litigation Privilege
There are many forms of privilege which may render certain evidence or information inadmissible or can act as a complete defense and bar to claims and lawsuits. One of these privileges which can operate as a complete bar to recovery is the litigation privilege doctrine. The litigation privilege is a judicially created privilege that protects participants – including attorneys, parties and witnesses – in a judicial proceeding against civil liability for statements they make in the course of that proceeding. It precludes and deters derivative lawsuits that are based on allegations and testimony submitted in prior litigation and civil proceedings and prevents prospective litigants from pursuing a potential flood of lawsuits based on prior pleadings and testimony.
As applied to witnesses, the privilege is sometimes referred to as witness immunity, and under it, “[a]s a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony.” Statements “are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.” But statements having “no connection what[so]ever” with the litigation are not privileged. Thus, not every passing statement made in court avoids liability. But the determination of pertinency is not a high bar. As the Restatement (Second) of Torts indicates, a statement “need not be strictly relevant to any issue” so long as it bears “some reference to the subject matter…of the litigation. Litigation privilege therefore prohibits liability stemming from statements (1) made in the course of a judicial proceeding (2) that are pertinent to the litigation. Pertinency is a question of law reviewed de novo.
The purpose of the litigation privilege doctrine is to encourage frank, open, untimorous argument and testimony and to discourage retaliatory, derivative lawsuits. As applied to attorneys, it furthers “a public policy of securing to [counsel] as officers of the court the utmost freedom in their efforts to secure justice for their clients.” As applied to witness testimony, it preserves “the integrity of the judicial process by encouraging full and frank testimony.” The rule addresses the concern that a witness may either be reluctant to come forward to testify in the first place or shade their testimony “to magnify uncertainties, and thus to deprive the fact finder of candid, objective, and undistorted evidence.”
Though it often arises in the context of defamation suits, courts have rejected the notion that litigation privilege applies only to that claim. The Washington Supreme Court, in the context of witness immunity, has said that the chilling effect of subsequent litigation “is the same regardless of the theory on which that subsequent litigation is based.” More generally, the supreme court has used broad language to describe the litigation privilege’s scope, saying that it “applies to statements made in the course of judicial proceedings and acts as a bar to any civil liability.” Litigation privilege has been applied to bar liability under a range of causes of action, including civil conspiracy.
There is voluminous binding judicial precedent and dicta establishing, analyzing and interpreting the application of the litigation privilege in a wide variety of claims and contexts. Washington State Courts have overwhelmingly and consistently held that the litigation privilege operates as a complete bar to civil liability in derivative lawsuits based on testimony and pleadings made in the course of judicial proceedings.
The Washington Supreme Court in McNeal v. Allen affirmed the trial court and appellate court’s orders dismissing appellant F.F. Allen’s counterclaim for defamation on respondents’ motion for summary judgment. The Supreme Court determined “[t]he trial court correctly held that the statute is procedural rather than substantive and reveals no legislative intent to abrogate the common law rule that allegations in pleadings are absolutely privileged and cannot form the basis for a damage action. The Supreme Court further noted that “allegedly libelous statements, spoken or written by a party or counsel in the course of a judicial proceeding, are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.” Washington State Courts have dismissed other claims and causes of action based on the tenets of the litigation privilege including claims for negligence (Bruce v. Byrne-Stevens Assocs., 113 Wn.2d 123, 776 P.2d 666 (1989)), tortious interference with business relationships or contracts and intentional infliction of emotional distress (Jeckle v. Crotty, 120 Wn. App. 374, 85 P.3d 931 (2004)), false light and civil conspiracy (Young v. Rayan, 533 P.3d 123 (2023).
Consider invoking the litigation privilege if you are a defendant in a lawsuit based in whole or in part on testimony or pleadings submitted in previous litigation.
To learn more about Litigation Privilege, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.