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Parameters around the "Litigation Privilege": when can a litigant be slandered without lia

Under Florida's litigation privilege, "a defendant can slander the plaintiff and lie to her and the court, and still be absolutely immune from a later lawsuit for defamation, tortious interference with a business relationship, and even violations of federal consumer protection statutes, as long as the slander and lies were made in the courtroom or during the formal discovery process and had some relation to the case." This proposition was put to the test by attorney Michael Rudd and his law firm, Rudd & Diamond, P.A. in Arko Plumbing Corp. v. Rudd and Rudd & Diamond, P.A., 2017 WL 4654904 (Fla. 3d DCA 2017).

In 2013, Rudd and his firm were defending Citizens Property Insurance Corporation in the breach of property insurance case brought by the Bascuas family. Rudd and his firm, with the help of a former Arko employee, John Collucci, used Collucci’s still-active password to access Arko’s MotoMon Global Positioning System account. MotoMon is an internet-based computer program which provided historical and real-time access to the location of Arko’s service vans. On the MotoMon program, Rudd and his firm, with Collucci’s password, accessed the historical location information for eighteen Arko clients, including the Bascuases. Rudd also conducted an out-of-court, insurance policy mandated examination under oath of another Arko customer, the Calejos.

Arko sued Rudd for, amongst other things, the foregoing conduct. Rudd won the case at the trial court level, the trial court deciding that Florida's litigation privilege shielded Rudd and his firm from liability for his actions.

The Third District Court of Appeals held that Rudd's conduct in accessing Arko's Motomon account was not absolutely privileged, because his conduct occurred outside of the courtroom, outside of the formal discovery process permitted as part of a judicial proceeding, and there was no "communicative act" that occurred. Because Rudd was not communicating with a person when he accessed the account, that access was deemed to be a non-privileged act. After distinguishing an examination under oath from a deposition taken under the rules of civil procedure, Rudd's examination of the Calejos under oath was deemed to be subject to a qualified privilege; that is, if Rudd's statements made during the examination were made with malice and a primary intent to injure Arko's reputation, the statements would not be subject to a privilege and Rudd could have liability for those statements.

The case was referred back to the trial court for further proceedings.

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