Privileges Category Archives — Page 3 of 5 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

June 27, 2014

Defamatory and Scandalous Material as Grounds to Seal Record

In bankruptcy court, the presumption in favor of public access to judicial records can be overcome if “scandalous or defamatory matter” is contained in a paper filed therein. (See 11 U.S.C. Section 107). Curiously, there is an absolute judicial privilege for statements made in connection with and relevant to a judicial proceeding, so normally one wouldn’t expect to find “defamatory matter” in a court filing. Still, there is a relevance requirement to be entitled to the privilege, and there’s always a possibility that potentially defamatory or scandalous statements will be made in a court filing that have nothing to do with the underlying merits. And that’s exactly what happened in the recent case of Robbins v. Tripp.

Attorney John W. Tripp was handling a case in bankruptcy court when certain issues arose relating to perceived problems with his practice. The court ordered him to prepare and file a report containing details relating to his organization of files, supervision of staff, communication with clients, and related matters. The bankruptcy court instructed that the report be written “candidly and not as an advocate for any party to this matter.” Mr. Tripp moved for leave to file the report under seal, based in part on Section 107’s “scandalous or defamatory” provision. The motion was granted, and the trustee appealed.
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January 23, 2014

Absolute Judicial Privilege Extends Outside the Courtroom

by Lee E. Berlik

Virginia recognizes an absolute privilege against defamation claims in three situations: (1) statements made in connection with judicial proceedings (the so-called “judicial privilege”); (2) statements made in the course of legislative proceedings; and (3) communications among military officers. A person who makes a defamatory statement in one of these contexts is completely immune from liability even if the statement was made maliciously and with knowledge of falsity. The judicial privilege is by far the most common of the absolute privileges, as it has broad application and applies to all forms of communication during litigation. The doctrine encourages unrestricted speech in litigation which in turn promotes compromise and settlement. The United States Bankruptcy Court for the Eastern District of Virginia recently held that not only does the privilege extend to communications outside the courtroom, but that when litigation is pending, the communication need not be made to an interested party to qualify for protection.

The case is Chesapeake Trust v. Chesapeake Bay Enterprise, Inc. (In re Potomac Supply Corp.), decided December 31, 2013. The bankruptcy court had approved the debtor’s sale of its operations to an unrelated entity called Potomac Supply, LLC. Chesapeake Bay Enterprise (CBE), an entity who had also negotiated to buy the debtor’s operations, filed a motion to reconsider. Potomac Supply’s attorney sent an email to CBE’s attorney, asking for two exhibits that were missing from the reconsideration motion and making a reference to “all of the fraudulent financing proposals we received from your client…” CBE responded with a third-party complaint alleging that the email was defamatory. The third-party defendants moved to dismiss, relying on the absolute judicial privilege.
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December 2, 2013

No Defamation Liability for Statements made to FBI During Background Check

by Lee E. Berlik

In most (but not all) cases, absolute immunity applies to statements made by government contractors to government investigators in the course of an official investigation. The United States District Court for the Eastern District of Virginia recently addressed this issue in Kolakowski v. Lynch and found that statements made to the FBI in the course of an employment background check could not form the basis of a defamation action.

Daniel Kolakowski filed an employment discrimination charge with the EEOC against his former employer, MITRE Corporation, alleging he had been harassed because of his Polish ancestry. Kolakowski and MITRE eventually signed a mediation agreement resolving the dispute. Under the agreement, MITRE agreed to not discriminate or retaliate against Kolakowski for filing the charge.

When Kolakowski later applied for a job with the Federal Bureau of Investigation, he signed a form authorizing the FBI to investigate his background and allowing former employers to release information about him. The FBI interviewed three of Kolakowski’s former supervisors at MITRE. The three employees allegedly told the FBI that FBI seal.jpg Kolakowski took excessive days off work, exaggerated how much worked, lied about his wife having cancer, and was generally untruthful. When the FBI did not hire Kolakowski, he sued MITRE and the three supervisors for breach of contract and defamation. The defendants removed the case to federal court and moved to dismiss for failure to state a claim.

November 1, 2013

SCoVA Clarifies Law of Qualified Privilege

by Lee E. Berlik

Sometimes the context in which a statement is made provides the speaker with a qualified privilege against defamation claims. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. If such a privilege applies, the speaker will not be liable for slander unless the plaintiff can show by “clear and convincing” proof that the privilege has been lost or abused. In a published opinion released yesterday by the Supreme Court of Virginia, the court reversed its prior decisions mandating that the speaker have acted in good faith as a prerequisite to the privilege attaching, and clarified the situations in which the privilege can be lost or abused.

The case involved a dispute between Dr. Robert Smith, a trauma surgeon, and Dr. Bradley Cashion, an anesthesiologist. In November of 2009, the two were part of an emergency operating team providing care to a critically injured patient. The patient did not survive the procedure, and Dr. Smith blamed Dr. Cashion. In the presence of other members of the operating team, Dr. Smith claimed the patient “could have made it with better resuscitation” and directly accused Dr. Cashion of purposefully failing to resuscitate him. “You just euthanized my patient,” he allegedly told Dr. Cashion.

The trial court sustained Dr. Smith’s demurrer to the statements that the patient “could have made it with better resuscitation” and “[y]ou determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him,” finding them both to be non-actionable expressions of opinion. The Virginia Supreme Court disagreed, finding that both statements attributed the patient’s death to Dr. Cashion’s action or inaction, which it found to be an allegation of fact capable of being proven true or false. The latter statement was held to be the equivalent of the “you just euthanized my patient” statement, which the trial court correctly found to be a statement of fact. (Note: Justice McClanahan, however, found the euthanasia references to be mere rhetorical hyperbole, and wrote a detailed dissenting opinion explaining why she would find the statements not actionable).

October 10, 2013

The Walls of a Church Do Not Shield a Tortfeasor from Defamation Liability

by Lee E. Berlik

The First Amendment dictates that religious organizations are entitled to decide matters of church governance, faith and doctrine without state interference. Accordingly, as a general rule, courts may not hear disputes involving religious law, principle, doctrine, discipline, custom or administration. In what has come to be known as the “ecclesiastical abstention” doctrine, courts should normally abstain from adjudicating issues involving theological or spiritual judgment, or the internal governance of religious bodies. Courts will often classify the issue as one involving jurisdiction, noting that the religious bodies have exclusive jurisdiction over their own internal workings.

For example, the Supreme Court of Virginia once considered a church pastor’s defamation claim against a church deacon based on his statement that the pastor had “borrowed over $100,000 from believers and has not returned the money.” While an express or implied accusation of theft would normally be treated as defamation per se under Virginia law, the court declined to exercise jurisdiction on the ground that the Free Exercise Clause of the First Amendment “divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials.”

Still, courts may exercise jurisdiction over defamation actions involving religious organizations where “neutral principles of law” may be applied to resolve the dispute. The Supreme Court of South Carolina recently granted certiorari to consider the question of whether a pastor may use the First Amendment’s Free Exercise Clause to shield himself from defamation liability stemming from statements he made about the church’s trustees at a congregational meeting or whether the court could apply neutral principles of law to decide the case. The court found that “a tortfeasor is not shielded from liability simply by committing his torts within the walls of a church or under the guise of church governance.”

September 9, 2013

“Actual Malice” Is Not Actually Malice

by Lee E. Berlik

Where an otherwise defamatory statement is subject to a qualified privilege, a plaintiff can overcome that privilege by showing that the defendant acted with actual malice. However, “actual malice” in the context of a defamation action–also known as “New York Times malice,” is a different concept than the common-law malice ordinarily required to support an award of punitive damages. Actual malice does not require evil intent, spite, or ill will. A speaker acts with actual malice when he knows that his statement is false or acts with reckless disregard as to its truth. Mere dislike of the plaintiff is not sufficient to indicate a speaker acted with actual malice.

The standard for whether a defendant has uttered a defamatory statement with actual malice is a subjective one. In a lawsuit against a newspaper, for example, the plaintiff would not necessarily prevail merely by showing that the publisher failed to conduct a sufficient factual investigation or that a “reasonably prudent” publisher would not have published the story. Reckless disregard for the truth requires more than just a departure from professional journalistic standards. (See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989)). Rather, the court must get into the mind of the publisher and determine its state of mind at the time of publication. Reckless disregard for truth requires a high degree of awareness of probable falsity, such as when a publisher entertains “serious doubts as to the truth of his publication” but publishes the story anyway. (See St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).

The distinction between actual malice and common-law malice was explained last month in the Texas case of Tyson v. Austin Eating Disorders Partners, LLC. Edward Tyson worked for Austin Eating Disorders Partners (AED) as medical director of AED’s Austin eating disorder treatment center. After Tyson was removed from his position, he asked his accountant to inquire about AED’s improved financials. Mark McCallum, CFO of AED, responded to the inquiry with an email to Tyson, AED’s Board of Directors, AED’s attorney, and AED’s accountant stating that AED’s financials had improved because Tyson had been a bad medical director who had no idea how to run the treatment center and took kickbacks for referring patients to other facilities. In a Second Amended Complaint asserting various defamation theories, Tyson conceded that McCallum’s email was subject to a qualified privilege, but argued that he overcame the privilege by alleging that McCallum acted with actual malice. AED and McCallum moved to dismiss the claim.

June 24, 2013

Pilot’s Defamation Case Goes to Supreme Court

by Lee E. Berlik

Applying Virginia law, the Colorado Supreme Court upheld a $1.4 million jury verdict against Air Wisconsin back in March of 2012, finding it was responsible for slander of a former pilot and not entitled to immunity. On June 17, 2013, the United States Supreme Court granted certiorari to consider the question of whether a court can deny the immunity provided by the Aviation and Transportation Security Act (ATSA) without a prior determination that the air carrier’s statements to the Transportation Security Administration (TSA) were materially false.

After the September 11th terrorist attacks, Congress passed the ATSA in order to encourage the reporting of security concerns. The ATSA requires airlines and their employees to report potential security threats to the TSA. Reporting parties are given broad immunity and may only be liable for reports made with actual knowledge that the report was false, inaccurate, or misleading, or with reckless disregard as to the truth or falsity of the report. Because failure to report can result in civil penalties, shorthand for the policy has become known as “when in doubt, report.”

William Hoeper was a pilot for Air Wisconsin Airlines. Hoeper apparently had failed three proficiency exams and abandoned his fourth attempt. Approximately ninety minutes into the test, Air Wisconsin contends that Hoeper ran the simulator out of fuel, flamed out the engines, and nearly crashed. According to Air Wisconsin, Hoeper knew he would be terminated and was acting irrationally, yelling and cursing at his instructors. Hoeper’s version of the story is that Air Wisconsin was conducting the simulator test unfairly, and a personal dispute was escalated into a matter of national security.

March 6, 2013

FTCA Bars Defamation Claims Against Federal Government

by Lee E. Berlik

If you work for the federal government and a co-worker spreads false and malicious rumors about you that damage your reputation, it will be very difficult to pursue a claim for libel or slander against the individual in question. The recent Maryland case of Shake v. Gividen demonstrates the hurdles a prospective plaintiff would face in pursuing such an action.

Donald Shake worked for the Department of Veterans Affairs until he was terminated in 2011. Teresa Gividen and Brian Sexton also worked at the Department of Veterans Affairs. Gividen was the Assistant Human Resources Chief. Shake claimed that Gividen and Sexton accused him of accessing the medical records of a veteran and not completing hundreds of work orders. He asserted that Gividen and Sexton started rumors that Shake was the subject of disciplinary proceedings and that numerous complaints had been lodged against him. Shake sued Gividen and Sexton for defamation, alleging that they slandered his name and reputation by making false and malicious statements about him. Shake alleged that he lost his job and retirement benefits as a result of the slander and that his reputation was harmed such that he was unable to secure subsequent employment.

The United States filed a motion contending that Gividen and Sexton should be dismissed because they were acting within the scope of their employment, and it asked to be substituted as the sole defendant in the case pursuant to the Federal Tort Claims Act (FTCA). The United States further argued that Shake’s defamation claim should then be dismissed for failure to exhaust administrative remedies and on sovereign immunity grounds. The court agreed.

February 22, 2013

False Accusation of Sexual Aggressiveness Per Se Defamatory, Claims FBI Agent

by Lee E. Berlik

Workplace defamation suits will usually raise privilege issues. When one employee complains to a manager or supervisor about another employee and falsely maligns the other employee’s reputation in the process, the court will need to sort out whether the complaint is protected by qualified privilege. If it is, the statement can’t form the basis for a claim unless it was made with common-law malice or made to persons having no business hearing it. Common-law malice is different than the constitutional “New York Times” malice so often discussed in analyzing defamation liability. Common-law malice generally refers to some form of ill will on behalf of the speaker, motivated by things like hatred or a desire for revenge. In Virginia, there is a presumption that the speaker acted without malice.

When a slanderous statement occurs at work, it often involves an accusation that a co-worker is unfit to perform the duties of his or her job, due to a lack of competence or lack of integrity. Statements such as these which prejudice a person is his or her profession fall into the defamation per se category, which means that a jury can presume the statement was harmful to the plaintiff, even if special damages are not proven.

Earlier this month, a case from Stafford County was removed to federal court in Alexandria. Suzanne Brown, the plaintiff, was an FBI agent assigned to the Behavioral Analysis Unit (BAU) within the Critical Incident Response Group (CIRG). The BAU handles cases involving threatened violence against public officials, and as a program manager, Brown was responsible for assessing such threats. Katherine Schoeneman, the defendant, is a psychologist who had formerly worked with Brown on some threat assessment cases under a contract with CIRG. Schoeneman offered her psychological observations while Brown provided investigative and law enforcement expertise.

January 21, 2013

Are False Statements to the Police Immune from Defamation Claims?

by Lee E. Berlik

Judicial privilege (also known as judicial immunity) allows a party to litigation or other judicial proceeding to make statements during the course of the proceeding that would otherwise be considered slanderous or libelous. The Virginia Supreme Court recently held that judicial privilege will also apply to certain statements made in advance of such proceedings where the following conditions are met: (1) the statement is made preliminary to the proposed proceeding; (2) the statement is material, relevant or pertinent to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. The Circuit Court of Loudoun County had occasion to apply the test in Hubbard v. Goehring. (Note: at issue in the Loudoun case was whether absolute judicial immunity applied to false statements made to the police. Such statements will generally be protected by qualified privilege, even if absolute privilege is found not to apply.)

Deanne Hubbard managed Jack and Mary Goehring’s rental properties. Ms. Hubbard and her family also occupied commercial and residential properties owned by the Goehrings. Mr. Goehring filed a criminal theft affidavit against Ms. Hubbard alleging identity theft, fraud, embezzlement and bank fraud. The Goehrings told the Assistant Commonwealth’s Attorney that they intended to file civil charges against Ms. Hubbard. Mr. Goehring found out when Ms. Hubbard would be arrested and arranged for a photographer to photograph the arrest. The pictures were published on the front page of a local newspaper, on the evening news and on YouTube. Ms. Hubbard was acquitted of embezzlement charges, and she and her family brought a defamation action against the Goehrings. The Goehrings contend that statements made to the public prosecutor and police regarding Ms. Hubbard’s alleged criminal activity are subject to the judicial privilege.

Relying on the Restatement (Second) of Torts, the court added a good-faith requirement to the immunity test, finding that in addition to the elements laid out by the Virginia Supreme Court, good faith is required on the part of the private individual bringing the criminal charges and that such good faith must persist throughout the prosecution.