§24.6 Judicial Privilege

The Case: Myers v. Pickering Firm, Inc. , 959 S.W.2d 152 (Tenn. Ct. App. 1997).

The Basic Facts: This is a defamation action related to errors in a report by an engineering and architectural firm. The plaintiffs were Myers and Klimek d/b/a MK Associates ("MK").

The Bottom Line:

  • "Tennessee has long recognized that statements made in the course of judicial proceedings are absolutely privileged. See, e.g., Lea v. White, 36 Tenn. (4 Sneed) 111, 114 (1856) (holding that statements made in a return to a writ of habeas corpus were absolutely privileged so as to bar a cause of action for libel). This absolute privilege also applies to statements made by witnesses in the course of judicial proceedings. See, e.g., Shadden v. McElwee, [5 S.W. 602 (Tenn. 1887)] (asserting that a witness is absolutely privileged as to all matters relevant to the issues in the case)." 959 S.W.2d at 159.
  • "In Jones v. Trice, [360 S.W.2d 48 (Tenn. 1962)], the Tennessee Supreme Court discussed the absolute privilege applicable to judicial proceedings. In that case, Jones had attended a trial in which Trice was a defendant as executrix of an estate. Id. at 49. After a jury verdict against Trice, she moved for a new trial on the ground, inter alia, that Jones improperly influenced the jury in her case. Id. When Jones sued Trice for libel based on the allegations in her motion for a new trial, Trice demurred on the ground that the statements were absolutely privileged because they were made in the course of a judicial proceeding. Id. at 50." Id.
  • "On appeal of the trial court's order sustaining the demurrer, the Court stated:
    The general rule is that statements made in the course of judicial proceedings which are relevant and pertinent to the issues are absolutely privileged, and therefore cannot be used as a basis for a libel action for damages. This rule holds true even though such statements are false, known to be false or even malicious.
    Id. (citations omitted). The Court further set forth the view contained in the [Restatement of Torts]:
    A party to a private litigation . . . is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of a judicial proceeding in which he participates, if the matter had some relation thereto.
    Id. at 51 (quoting [Restatement of Torts § 587)] (emphasis added). From these and other authorities, the Court reasoned that 'a statement by a judge, witness, counsel, or party, to be absolutely privileged, must meet two conditions, viz: (1) It must be in the course of a judicial proceeding, and (2) it must be pertinent or relevant to the issue involved in said judicial proceeding.' Id. at 52. The Court noted that pertinency and relevance are questions of law. Id. at 53 (citing [33 Am. Jur. § 150], at 146). Concluding that Trice's statements met these requirements and were absolutely privileged, the Court held that the trial court correctly sustained the demurrer. Id. at 54-55." Id.
  • "Proof was introduced in the instant case that the Pickering firm was hired to provide expert witnesses and to furnish information to [Plaintiff's customers] LSSM concerning the defects in the construction, any problems with the design, and what entity or entities were responsible for the problem. Pickering was also employed to provide solutions for the existing problems and estimate the cost of correcting the problems. Although Pickering might have had a dual role, it seems clear that the information Pickering furnished was pertinent and relevant to the issues drawn in the chancery court lawsuit and perhaps could constitute essential evidence for LSSM's defense." Id. at 160.
  • "MK contends that the Report was unsigned, unsealed, and issued by Pickering in its corporate capacity. We must respectfully disagree with this characterization. The Report is merely an assimilation of the information compiled by various representatives of Pickering in their role as expert witnesses in the chancery court litigation and in anticipation of their upcoming testimony in that proceeding." Id. at 160-61.
  • "In Jones v. Trice, [360 S.W.2d at 48], our Supreme Court strongly endorsed a liberal application of the absolute privilege accorded to publication of defamatory matters in connection with judicial proceedings. The Court said:
    Underlying this general doctrine of absolute immunity from liability in libel and slander for statements made in the course of a judicial proceeding is a policy decision by the courts that access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of an individual to a legal remedy where he has been wronged thereby.
    360 S.W.2d at 51. The Court's reliance in Jones on the [Restatement of Torts] also indicates its willingness to extend the doctrine to communications preliminary to proposed or pending litigation. Therefore, we hold that Pickering's Report as published to LSSM is absolutely privileged." Id. at 161.

Other Sources of Note: Trau Med of America, Inc. v. Allstate Ins. Co. , 71 S.W.3d 691 (Tenn. 2002) (declining to extend privilege to clams for intentional interference with business relationships absent any claims for defamation); Brown v. Birman, 42 S.W.3d 62 (Tenn. 2001) (recognizing "larger conspiracy" exception to the testimonial privilege, which provides that, "a witness who gives false testimony that is a 'means to, or a step in, the accomplishment of some larger actionable conspiracy' may not claim the privilege; his perjury can provide the basis for a subsequent civil action."); Moore v. Bailey, 628 S.W.2d 431 (Tenn. Ct. App. 1981) (declining to extend the judicial privilege to statements made to law enforcement or other governmental investigatory authorities where there was no tribunal present).

Recent Cases: 

Unarco Material Handling, Inc. v. Liberato, 7 S.W.3d 227 (Tenn. Ct.  App.  2010)  (upholding  summary  judgment  in  inducement  of  breach  of contract  claim  finding  litigation  privilege  protects  conduct  in  addition  to statements and setting out parameters for application of privilege to pre-litigation conduct).

Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell , 232 S.W.3d 18 (Tenn. 2007) (holding that an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding even when the communication is directed at recipients who are not connected with the proposed proceeding and setting out the following four requirements in order for the privilege to apply: (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published.).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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