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Lead Attorney Carmen Giordano Featured in New York Law Journal in article on Defamation


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Defamation in Emails: The Judicial Privilege
New York Law Journal (Online)
May 22, 2014 Thursday
Byline: Carmen S. Giordano

Balancing free speech rights on the Internet against rights of privacy and the right not to be defamed is not always easy. The judicial or litigation privilege is a defense to defamation claims and may provide protection to communications that are intended for, or ultimately circulate on, the web. If the privilege applies, there is absolute immunity from liability for the defamatory statements.See e.g., Park Knoll Assoc. v. Schmidt, 59 NY2d 205, 208-209 (1983). Most attorneys are familiar with the application of the judicial privilege to pleadings filed in the course of litigation and to arguments made in the courtroom, but the privilege has a more expansive
application and may apply to extrajudicial Internet communications made to third parties during the pendency of judicial or quasi-judicial proceedings. Since the privilege is considered absolute, analytically, a reviewing court should not inquire into motive, bad faith or the recklessness of an allegedly defamatory statement. See e.g., Wiener v. Weintraub, 22 NY2d 330, 331 (1968). In other words, even if the defamatory communication is made maliciously, if the judicial privilege applies, there will be complete immunity from the defamation claim.  As a cautionary note, notwithstanding the expansive and broad protection of the judicial privilege, attorneys may be well advised to refrain from certain types of communications with the press whether made on the Internet or not. In New York, press releases, including those made by attorneys, issued
prior to or after the actual commencement of judicial proceedings will not be covered by the judicial privilege. Block v. First Blood Associates, 691 F.Supp. 685 (S.D.N.Y. 1988); Rosen v. Brandes, 105 Misc.2d 506, 432 N.Y.S.2d 597, 601 (1980); Williams v. Williams, 23 N.Y.2d 592, 599, 298 N.Y.S.2d 473, 246 N.E.2d 333 (1969). Even simply providing a copy of a filed complaint to the media has been held not to be a statement made in the course of judicial proceedings and is not protected by the judicial privilege in New York. See Bridge C.A.T. Scan Assocs. v. Ohio-Nuclear, 608 F.Supp. 1187, 1195 (S.D.N.Y. 1985) and cases cited therein; Cf., ²When Can Lawyers Get Sued,² pg. 5, The Legal Intelligencer, Vol. 237; No. 1 (Jan. 2, 2008) (discussing varying jurisdictional views). Focal Point: Pertinence Underlying the judicial privilege is the sound policy permitting persons involved in judicial proceedings, including litigants and their attorneys, to write and speak about the cases and issues freely, in order to further the ends of justice. See, e.g., Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425, 255 N.E.2d 693 (1969).  The focal point of the judicial privilege analysis is essentially the relevance of the communication to the proceeding or ²pertinence.² If a defamatory communication is pertinent to a given judicial proceeding, then the privilege may apply. Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265 (1897).  New York courts have generally given a broad-based definition to the term pertinence in determining the application of the privilege. Martirano, 25 N.Y.2d 505. In Martirano v. Frost, the Court of Appeals held an expansive view of pertinence to include communications that ²by any view or under any circumstances…may be considered pertinent to the litigation.² 25 N.Y.2d at 507 (citing Feldman v. Bernham, 7 N.Y.2d 772; People ex rel. Bensky v. Warden, 258 N.Y. 55, 59-60; Youmans v. Smith, 153 N.Y. 214, 219; Chapman v. Dick, 197 App. Div. 551, 559). The court stated that in order for a communication to not receive the benefit of the judicial privilege, it ²must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame.² Id. While Martirano might be criticized for conflating the analysis of whether a communication is pertinent to a judicial proceeding with analysis of the motivation underlying the communication, which, by definition, is irrelevant, the point was made that pertinence, for the purposes of the judicial privilege, would be given an extensive scope. In Cassuto v. Shulick, 2007 U.S. Dist. LEXIS 42638, 2007 WL 1705669 (S.D.N.Y., 2007), Judge Shira Scheindlin examined the application of the judicial privilege to a defamatory email transmitted during an attorneys’ fee dispute. In the ²reply all² email delivered to attorneys and a mutual client, and possibly forwarded to paralegals, the Cassuto defendant suggested that the plaintiff was ²under the influence of substances that caused him to act so erratically…the reason for his termination.² Scheindlin ultimately held that the email was covered by the judicial privilege, rejecting opposing arguments that the underlying litigation had concluded and that the privilege should be extinguished. The charging liens filed with the court, which related to the underlying litigation and the pre-existing counsel relationship, the judge reasoned, were sufficient for application of the privilege. 2007 U.S. Dist. LEXIS 42638. In the recent case of Levin v. Epshteyn, 2014 NY Slip Op 50573(U) (Kings Cnty Sup. Ct., April 4, 2014), Justice David Schmidt applied the privilege to defamatory allegations of criminal activity contained in various court pleadings and described the pertinence standard as extremely expansive. ² Stated otherwise, the possibly pertinent…need be neither relevant nor material to the threshold degree required in other areas of the law, and the barest rationality, divorced from any palpable or pragmatic degree of probability, suffices to establish the offending statement’s pertinence to the litigation,² Levin quoting Sexter & Warmflash, 38 AD3d at 173, and Seltzer v. Fields, 20 AD2d 60, 62 (1st Dept. 1963), aff’d 14 NY2d 624 (1964). It is no coincidence that the recitation of this strong ²barest rationality² language is found in a case where the only defamatory statements alleged were made in a complaint and an amended complaint filed with the court and not disseminated to third parties.  Another recent case coming out of New York’s Second Department illustrates the application of the judicial privilege to email communications. In El Jamal v. Weil, 2014 N.Y. App. Div. LEXIS 2345 (April 9, 2014), the Appellate Division, Second Department, considered the application of the privilege to defamatory emails in a case involving a heated business dispute. The plaintiff in El Jamal framed three defamation causes of action, two of which were based on emails that the defendant transmitted to Defamation in Emails: The Judicial Privilege Page 2 of 4 various individuals, including plaintiff’s employees, the parties’ attorneys and a nonparty to the litigation who was involved in the business transactions. The basis of plaintiff’s first libel per se claim was a July 21, 2011, email in which the defendant described the plaintiff as a ²liar² who was ²not in touch with reality.²2014 N.Y. App. Div. LEXIS 2345. The July 21 email was sent to three of plaintiff’s employees as well as defendant’s own attorney. The second libel per se claim was predicated on an Aug. 25, 2011, email in which the defendant suggested that the plaintiff had stolen money from him. The defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(7). The Supreme Court denied the motion, and the Appellate Division reversed. In holding that the email communications were privileged, including those emails transmitted to plaintiff’s employees and the nonparty, the court reasoned that the emails were made in the course of ongoing judicial proceedings and were, ²in some way,² pertinent to the litigation. The court held that since the emails were transmitted to the parties, counsel or possible witnesses, the privilege would apply. 2014 N.Y. App. Div. LEXIS 2345. Unfortunately, the El Jamal court did not provide further explication of whom exactly would qualify as a possible witness or more generally speaking, how far the judicial privilege would reach before the court might disqualify the communication from the safety net. Conclusion Unpacking the pertinence standard reveals that a court’s inquiry into whether a given communication is pertinent to a judicial proceeding and qualifies for immunity involves examination of several variables, including the timing of the communication, who is making the communication, to whom the communication is made, the substance of the communication, the reasons for the communication, and the method or media of the communication. When the communication is particularly defamatory-something more than merely accusing a party of being a ²liar² as in the El Jamalcase-courts have a tendency to scrutinize more carefully the surrounding circumstances of the communication, the recipient, and the purpose of the communication. If the alleged defamation is contained within a complaint, which is simply filed with the court, the privilege should certainly apply. However, if the complaint is emailed to the media, as in the form of a press release, at least in New York, the privilege will not apply. In reaching her decision in favor of the application of the privilege in the Cassuto case, supra, Judge Schiendlin stated: ²The privilege is only inapplicable where the statement is made by someone who has no involvement whatsoever in the pending litigation or was never involved in the proceedings. Moreover, it is irrelevant for purposes of applying the privilege that third parties inadvertently heard or read an allegedly defamatory statement.² 2007 U.S. Dist. LEXIS 42638, citing Martirano, 25 N.Y.2d 505, and Klein, 288 N.Y.S.2d at 751. Courts will continue to give wide latitude to communications, including those in the form of emails, between attorneys, parties to a lawsuit and other individuals who have some degree of involvement with the proceedings. Obviously caution should be exercised in those digital transmissions of statements that could be construed as defamatory, but as long as there is some nexus to the proceedings, email transmissions will continue to be covered by the judicial privilege. Defamation in Emails: The Judicial Privilege Page 3 of 4 Carmen S. Giordano is a principal with Giordano Law Offices in New York City.

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