How Florida's Litigation Privilege Works

"However, an absolute privilege under state law cannot defeat a federal cause of action..."

"Here, the Amended Complaint asserts four causes of action against Defendants Russo, Gregoire, and Ivers. See ECF No. [5]2. The Florida litigation privilege does not apply to Count II for deprivation of rights under §1983, Count III for conspiracy to interfere with civil rights under §1985, and Count V under the Alien Tort Statute because they are federal claims that are not subject to the state privilege."

"While a party may not be prosecuted for libel or defamation on account of relevant statements made in the course of judicial proceedings, even though false and malicious, this does not mean that a person unjustifiably prosecuted is without other means of redress, such for instance as an action for malicious prosecution."

"Other states have explicitly distinguished between communicative and noncommunicative conduct. The California Supreme Court has explained that "the litigation privilege protects only publications and communications," and the "threshold issue in determining the applicability of the privilege is whether the defendant's conduct was communicative or noncommunicative." Rusheen v. Cohen, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713, 719 (2006)..."

"Without a communicative act, Rudd and his firm's actions fall outside what the Florida Supreme Court has held as protected by the litigation privilege. We conclude that Rudd's sitting at his computer and accessing Arko's MotoMon account was not a communication subject to the privilege."

"We note that the supreme court has receded from the view that all conduct preliminary to a judicial proceeding is absolutely privileged. Even where that standard is met, a qualified privilege may instead be applied where a balancing of the policy interests at stake and a consideration of the extent to which private individuals are protected from abusive litigation conduct by formal judicial processes suggest that an absolute privilege would be inappropriate. See DelMonico , 116 So.3d at 1214, 1217–19 ; Fridovich , 598 So.2d at 69. A qualified privilege protects a litigation participant from liability for conduct related to the subject of inquiry in a judicial proceeding unless the conduct was undertaken with express malice. See DelMonico , 116 So.3d at 1219."

"Once the trial court is satisfied as a matter of law that the alleged defamatory statements, assuming they were made, are connected with or related to the subject of inquiry in the underlying lawsuit, the defendant to a defamation action is entitled to assert a qualified privilege, placing the burden upon the plaintiff to then prove the additional element of express malice."

"In the United States, according to the overwhelming weight of authority, in order that defamatory words, published by parties, counsel or witnesses in the due course of a judicial procedure may be absolutely privileged they must be connected with, or relevant or material to the cause in hand - or subject of injury."