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Pomfret v. Atkinson, Case No. 4D09-1708 (4th DCA)

Pomfret addresses the application of the litigation privilege defamation cases. The case arose from Pomfret’s failure to repay Atkinson owed on two promissory notes. Pomfret brought counterclaims for, among other things, defamation. During the course of the litigation, Atkinson allegedly told a potential witness that Pomfret was a “crook” and that if Pomfret owed the witness money, the witness should call Pomfret and get it. Atkinson obtained a directed verdict on the defamation claim when the trial court determined that the statements were covered by the litigation privilege. The 4th DCA affirmed the trial court’s ruling, citing to Delmonico v. Traynor, in which the 4th DCA held that the rule of absolute immunity, which extends to parties, judges, witnesses, and counsel involved in a judicial proceeding, shields an attorney’s statements during an interview of a potential witness if the statements bear some relation to the proceeding.”

However, the Florida Supreme Court quashed the Delmonico decision, and held that “Florida’s absolute privilege does not extend to alleged defamatory statements made by an attorney ‘during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit.’” Instead, a “qualified privilege applies ‘to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit.’” The qualified privilege may be overcome if the plaintiff proves by a preponderance of the evidence that the defamatory statements “were false and uttered with common law express malice – i.e., that the defendant’s primary motive in making the statements was the intent to injure the reputation of the plaintiff.” Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then there is express malice and the qualified privilege is lost. To the contrary, if the speaker is motivated by a desire to protect the interest giving rise to the privilege, “the speaker does not forfeit the privilege merely because he or she also in fact feels hostility or ill will toward the plaintiff.”

In Pomfret, on remand, the 4th DCA found that the statements bore some relation to or connection with the subject of the inquiry in the underlying lawsuit. Therefore, the qualified privilege protected the statement. The 4th DCA further found that Pomfret failed to overcome the qualified privilege. Pomfret failed to established that the statements were false and uttered with express malice. The evidence failed to establish that Atkinson was motivated primarily by a desire to harm Pomfret’s reputation, as opposed to being motivated by the legitimate purpose of warning the witness to get his money back from Pomfret. Accordingly, the 4th DCA affirmed the final judgment in favor of Atkinson.

Pomfret therefore provides detailed insight into the application of the litigation privilege in defamation cases, as well as the parameters for an absolute privilege versus a qualified privilege. The opinion gives needed instruction for counsel who communicate with third parties during the course of litigation and while investigating cases.


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