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How Florida's Litigation Privilege Works

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FEDERAL

x unavailable
FLORIDA

✓ AVAILABLE

I. Definitions

Privilege
"1. a particular benefit enjoyed by a person, company or class beyond the advantages of other citizens;

2. an exceptional exemption, or an immunity held beyond the course of the law;

3. an exemption from some burden or attendance, with which certain persons are indulged, from a supposition of the law that the public

offices or duties require so much time and care that, without this indulgence, their duties could not be performed to the advantage that the public good demands. See executive privilege; informer's privilege; privileged communication.""
Immunity
"right of exemption from a duty or penalty; benefit granted in exception to the general rule. Immunity from prosecution may be granted a witness to compel answers he or she might otherwise withhold because of the constitutional privilege to avoid self-incrimination."

II. Legal Citations

42 USC §1983 | Civil Action for Deprivation of Rights
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia." §768.28 FS | Waiver of Sovereign Immunity in Tort Actions; Recovery Limits; Limitation...
"(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property."

III. Judicial Application

✓ Absolute
Florida's Litigation Privilege is an Absolute Immunity
Note: State Causes of Action Only
"In answering the certified question, we first examine the origins of the immunity afforded to statements or actions taken during a judicial proceeding. Traditionally, defamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry...Consequently, the torts of perjury, libel, slander, defamation, and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable."
- Levin, et al, P.A. v. US Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)

✓ Multiple
Florida's Litigation Privilege is afforded to parties, judges, and witnesses
Note: State Causes of Action Only
"The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well."
- Levin, et al v. US Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)

✓ Defamation
Florida's Litigation Privilege Protects Against Defamation
Note: State Causes of Action Only
"we agree with the circuit court that the absolute privilege extending to statements published in the course of judicial proceedings barred the plaintiffs' defamation actions. According to the complaint, defendant Kubiak, during a deposition of a non-party witness, and as part of an attempt to “scar[e] the insurance company into settlement,” allegedly made various statements disparaging the plaintiffs' litigation practices in similar cases. Because such alleged statements were made during the course of a judicial proceeding and allegedly bore some relation to settlement negotiations in that proceeding, the statements were absolutely privileged."
- McCullough v. Kubiak, 158 So. 3d 739 (Fla. 4th DCA 2015)

✓ Varied
Florida's Litigation Privilege Protects Against a Variety of Torts
Note: State Causes of Action Only
"fraudulent settlement, spoliation, and racketeering. DuPont cross-appeals the summary judgment against its claim of breach of contract."

"We held that Florida law provides absolute immunity from tort claims based on a party's conduct during the course of litigation. Id. at 1302. "Because DuPont's alleged misconduct occurred during the Underlying Litigation and during other Benlate litigation, according to [the Supreme Court of Florida], Florida law clearly provides an absolute immunity to DuPont for their alleged misconduct."
- Fla. Evergreen v. E.I. DuPont, 470 F.3d 1036, 1042 (11th Cir. 2006);

"Regions sued Kaplan and several of his investment entities for, inter alia, fraudulent concealment, civil conspiracy, conversion, and aiding and abetting."

- Kaplan v. Regions Bank, 2018 WL 3642576 (M.D. Fla. August 1, 2018);

X Federal
Florida's Litigation Privilege Does NOT Protect Against Federal Causes of Action

"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."
- Moskovits v. Mercedes-Benz USA, LLC, 2022 WL 278559 (S.D. Fla. Jan. 10, 2022)

X Malicious Prosecution
Florida's Litigation Privilege Does NOT Protect Against Malicious Prosecution

"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."
- Ange v. State, 98 FL 538 (1929)

X Out-of-Court
Florida's Litigation Privilege Does NOT Protect Against Out-of-Court Conduct

"The absolute privilege does not apply "where an attorney steps outside of both the courtroom and the formal discovery process to investigate a claim." DelMonico v. Traynor, 116 So.3d 1205, 1218 (Fla. 2013). Instead, a "qualified privilege" applies "to statements made by attorneys as they undertake informal investigation during pending litigation and engage in ex-parte, out-of-court questioning of nonparty witnesses, ‘so long as the statements are relevant to the subject of inquiry’ in the underlying suit.""
- Arko Plumbing Corp. v. Rudd, 230 So. 3d 520 (3d DCA 2017)

- Communicative vs Non-Communicative


"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."
- Arko Plumbing Corp. v. Rudd, 230 So. 3d 520 (3d DCA 2017)

- Dilution
Florida's Litigation Privilege has gotten recently diluted (ie, weakened)

"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."

- AGM Inv’rs, LLC v. Bus. Law Grp., P.A., 219 So. 3d 920, 924 (Fla. 2nd DCA 2017)

"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."

- DelMonico v. Traynor, 116 So. 3d 1205, 1211 (Fla. 2013))

- Affirmative Defense
Florida's Litigation Privilege is an Affirmative Defense

"While the litigation privilege is an affirmative defense, Am. Nat'l Title & Escrow of Fla., Inc., 810 So.2d at 998, it can be adjudicated on a motion to dismiss if the applicability of the privilege can be clearly discerned from the face of the complaint."

- LatAm Invs., LLC v. Holland & Knight, LLP, 88 So.3d 240 (Fla. 3d DCA 2011)

- Relevance
Florida's Litigation Privilege only shields conduct that is relevant to a proceeding

"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."

- Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907)

IV. Quick Commentary

  • Main Takeaway: Florida's Litigation Privilege does NOT protect against Federal Causes of Action
    • Therefore, your Civil Rights actions will be unaffected.
  • Good News: The Litigation Privilege has been losing strength/support in recent years
  • TBD's Viewpoint: This litigation privilege is another example of the powerful finding ways to keep themselves above the law.

V. Bibliography

Congratulations! You're now booked up on how Florida's Litigation Privilege Works!

Please keep this in mind when you find yourself dealing with an unscrupulous lawyer who's willing to lie, cheat, and steal while in court.

The good thing, though, is that the Litigation Privilege does not protect those unscrupulous lawyers from violating your constitutional rights!

Please get the justice you deserve.

Sincerely,



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