Appellate Division Affirms Trial Court Determination that E-Mail is Protected by the Absolute Litigation Privilege

Written by: Lynette Siragusa, Esq.

In an unpublished decision handed down on January 19, 2018, the New Jersey Appellate Division affirmed a lower court ruling holding that an allegedly defamatory e-mail was protected by the absolute litigation privilege.

In the matter, W. James Mac Naughton v. Shai Harmelech, et al., Docket No. A-0155-16, the Plaintiff is a New Jersey attorney who formally represented the Defendant in a lawsuit in Illinois. A dispute arose over the legal bill, and Plaintiff subsequently sued to collect the fee. During the course of the lawsuit, the judge presiding over the action asked the parties whether they were interested in mediating the dispute.  At the same time, the Plaintiff was apparently in contact with another of Defendant’s creditors in an attempt to band together and force Defendant into involuntary bankruptcy.  

Upon learning of the effort to force him into involuntary bankruptcy, Defendant sent an email to his attorneys, stating emphatically that he would not agree to mediation and ending his email with an unflattering personal opinion of the Plaintiff.  Defendant inadvertently included Plaintiff among the recipients of the email.  Plaintiff took offense to the email and filed a defamation claim against Defendant.  The trial court held a N.J.R.E. 104 evidentiary hearing on the issue of whether or not the statement was protected by the absolute litigation privilege.  Finding that it was protected, the trial court judge dismissed the action with prejudice, leading to appeal.

The Appellate Division agreed with the trial court, applying the four-factor test of Hawkins v. Harris, 141 N.J. 207, 216 (1995).   The Hawkins Court held that “[t]he absolute litigation privilege applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’” Id. (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)).  The Court reasoned that “[i]t has long been the law of this state that statements made in judicial or quasi-judicial proceedings are absolutely privileged against a defamation claim. Mac Naughton, slip op. at 4. (citing Rainier’s Dairies v. Raritan Valley Farms, Inc. 19 N.J. 552, 558 (1955).  The privilege “is not limited to statements made in a courtroom during trial; ‘it extends to all statements or communications in connection with the judicial proceeding.” Id. (quoting Hawkins 141 N.J. at 216.)

In the Mac Naughton matter, the Court found that “Defendant’s email to his lawyers directing them to refuse mediation with plaintiff obviously falls squarely within those statements protected by the litigation privilege.” Id. The Court rejected Plaintiff’s arguments that the statement related to Plaintiff’s honesty rather than the merits of the lawsuit, agreeing with the trial court that because Defendant “was speaking to his lawyers about whether he would participate in court-sponsored mediation . . . ‘there was a direct connection’ between the statement and the litigation.” Id. at 4-5. Finally, the Court rejected Plaintiff’s argument that the litigation privilege did not apply because the statement was made in a private conversation for which there are no safeguards against abuse, finding that “[a] Court’s ‘inherent power to sanction a party for behavior that is vexatious, burdensome and harassing,’ provides ample opportunity for judicial oversight.” Id. at 6.

Lynette Siragusa, Esq., of Siragusa Law Firm LLC successfully represented the Defendant in the trial court and on appeal.  If you have been sued for defamation or other tort, or have a matter on appeal or which you are considering an appeal, please contact the firm to discuss how we may be able to assist.

If you are interested in learning more, read the case below:

Mac Naughton v. Harmelech A-0155-16