Hawkins v. Harris

The opinion of the Court was delivered by

O’HERN, J.

Plaintiff alleges that in the course of her personal injury action against two motorists, she was subjected to repeated indignities by private investigators acting on behalf of an insurance company and a law firm representing one of the motorists. The Appellate Division has ordered a trial to determine whether defendants intentionally inflicted emotional distress on plaintiff, and whether defendants invaded plaintiffs privacy. The Appellate Division was divided on one issue, which is the subject of this appeal. The question is whether the absolute privilege accorded to statements made by participants in judicial proceedings extends to statements made by private investigators employed by the parties or their representatives. We agree with the majority of the Appellate Division panel that the absolute privilege does extend to statements made by private investigators. . We affirm the judgment below.

I

Because the ease arises on the defendants’ motions for summary judgment, we may accept as true'the facts as set forth in plaintiffs papers. On July 1, 1987, plaintiff, Linda Hawkins, had an automobile accident, which left her physically and mentally disabled. On July 14, 1987, Mrs. Hawkins wás involved in another automobile accident, which worsened her condition. She filed lawsuits against the two responsible motorists. The two cases were consolidated for discovery and trial. A jury returned a verdict in favor of Mrs. Hawkins for approximately $435,000. Thereafter, the motorists in the underlying action settled the case for $350,000.

On April 10, 1991, plaintiff filed a seven-count complaint against various attorneys, insurance companies, and investigators involved in the underlying litigation. We shall refer to them as the lawyer-defendants, the insurer-defendants, and the investigator-defendants. The insurer-defendants were the insurers of the various defendants in the automobile accident case. The lawyer-defendants were attorneys for one of the motorists in the underlying case. The lawyer-defendants and insurer-defendants had hired the investigator-defendants — Search Investigations, Inc., and Alex Toia — to gather information about the accidents and the consequential damages claimed by plaintiff. Plaintiffs complaint included allegations that the investigator-defendants defamed her during their investigation.

All defendants moved to dismiss plaintiffs complaint for failure to state a cause of action. Plaintiff moved to amend her complaint. Judge Yanoff dismissed the complaint and denied plaintiffs motion to amend. Thereafter, Judge Loftus signed an order granting the plaintiff leave to amend her complaint. When defendants notified Judge Loftus of Judge Yanoffs previous denial of the motion to amend, Judge Loftus vacated her order.

The Appellate Division clarified plaintiffs right to file an amended complaint and reversed the trial court’s dismissal of plaintiffs claims for invasion of privacy, negligent infliction of emotional distress, and conspiracy. The Appellate Division affirmed the trial court’s dismissal of plaintiffs other claims. One member of the Appellate Division panel dissented from the part of the decision affirming the dismissal of plaintiffs defamation claims against the investigator-defendants. He found three allegations in the amended complaint especially troubling: (1) investigator-defendants contacted an attendant at Mrs. Hawkins’ health club and asked him how long he had been having an affair with her; (2) investigator-defendants twice contacted Mrs. Hawkins’ minister and informed him that she and her husbajid were committing insurance fraud; and (3) investigator-defendants contacted Mrs. Hawkins’ housekeeper and asked her how much money Mrs. Hawkins was paying her to lie.

Those words, portraying plaintiff as an unfaithful spouse, insurance cheat, and as a suborner of perjury, could amount to actionable defamation unless privileged. The dissenting member of the panel acknowledged that lawyers are given an absolute immunity for statements made in the course of judicial proceedings so that they may exercise unfettered judgment in their clients’ interest. Nevertheless, he would “limit investigators to the benefit of a qualified privilege, holding them responsible for otherwise defamatory language if the [investigator] knows the statement to be false, or utters it in reckless disregard of its truth or falsity.” Plaintiff appeals to us as of right on the basis of the dissent below. The only issue before us, then, is whether the investigator-defendants’ statements were absolutely privileged.

II

Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutelj privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings.

[Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563, 569 A.2d 793 (1990) (citations omitted).]

The trouble with privileges is that they are granted to good and bad alike. A legislator has an absolute privilege on the floor of a chamber to revile, to defame, or to distort the truth. Invoking the Speech and Debate Clause, U.S. Const, art. I, § 6, a lawmaker may use this provision “as a cloak of immunity from prosecution while he [is] smearing the reputations and characters of American citizens whom the Bill of Rights [had] been designed to protect.” Albert Coates, Preserving the ConstiUition: The Autobiography of Senator Sam Ervin, 63 N.C.L.Rev. 993, 994 (1985) (book review). We accept such a privilege because it is more important to allow a lawmaker to speak and vote freely on matters of public concern than it is to punish the lawmaker as a rogue. The Speech and Debate Clause protects the integrity of the legislative process by preventing the “intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.” Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583, 597 (1972).

A corresponding privilege extends to members of the judiciary in the performance of judicial duties.

Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as [the] Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1871). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, LR 3 Ex 220, 223 (1868), quoted in Bradley v. Fisher, supra, [13 Wall, at] 349; note, at 350, 20 L.Ed. at 650.)

[Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288, 294 (1967).]

“The principle of judicial immunity has remained viable in the face of challenges in some very emotionally and politically charged cases.” Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23, 26 (1992).

The extension of an absolute privilege to jurors, witnesses, and parties and their representatives is grounded in similar public-policy concerns. In Fenning v. S.G. Holding Corp., 47 N.J.Super. 110, 135 A.2d 346 (App.Div.1957), the late Chief Justice Hughes, then sitting in the Appellate Division, explained our adherence to the doctrine of litigation immunity:

The doctrine that an absolute immunity exists in respect of statements, even those defamatory and malicious, made in the course of proceedings before a court of justice, and having some relation thereto, is a principle firmly established, and is responsive to the supervening public policy that persons in such circumstances be permitted to speak and write freely without the restraint of fear of an ensuing defamation action, this sense of freedom being indispensable to the due administration of justice.

[Id. at 117, 135 A.2d 346 (citations omitted).]

Our doctrine derives from the English rule of immunity. The English rule differs slightly from the American rule in that England affords a true, absolute privilege without regard to the relevancy of the statements to the subject matter of the proceedings. Id. at 118, 135 A.2d 346 (citing Munster v. Lamb, [1883] 11 Q.B.D. 588).

The only dilution of the rule [of absolute immunity] which has occurred in New Jersey (and most American jurisdictions) is the requirement that the defamatory matter uttered have some relation to the nature of the proceedings. Thus, statements made in the course of judicial proceedings, but not relevant thereto, are excluded from the privilege.

[Devlin v. Greiner, 147 N.J.Super. 446, 453, 371 A.2d 380 (Law Div.1977).]

The litigation privilege is still widely accepted. See Restatement (Second) of Torts §§ 586-87 (1977) (reaffirming absolute privilege of parties and their attorneys if the defamatory statements have “some relation to the proceeding”); see also Uniform Defamation Act (Tentative Draft 1992) (providing an absolute privilege for statements made “in and pertaining to a judicial proceeding by a judge, attorney, witness, juror, or other participant”), reprinted in Robert J. Hawley, An Overvieiv of the Uniform Defamation Act, in Libel Litigation 1992, at 645 app. (PLI Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series No. 338), available in WESTLAW, PLI-PAT Database.

Although the public policy served by the absolute privilege immunizes the defamer from a civil damage action, the privilege does not protect against professional discipline for an attorney’s unethical conduct. Ruberton v. Gabage, 280 N.J.Super. 125, 134, 654 A.2d 1002 (App.Div.1995); Kirschstein v. Haynes, 788 P.2d 941, 950-51 (Okla.1990). Nor does the privilege protect a witness or party who testifies falsely from a perjury prosecution. Kirschstein, supra, 788 P.2d at 950-51. “Remedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state.” Wright v. Yurko, 446 So.2d 1162, 1164 (Fla.Dist.Ct.App.1984).

Ill

The California Supreme Court set forth a useful formulation of the litigation privilege in Silberg v. Anderson, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365 (1990). Although California’s litigation privilege has been codified, the underlying principles are substantially the same as those underlying the New Jersey privilege. The absolute 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. at 369. Whether a defendant is entitled to the privilege is a question of law. Devlin, supra, 147 N.J.Super. at 460, 371 A.2d 380. Because the most difficult question in this case is whether investigator-defendants should be considered “litigants” or “other participants authorized by law,” we will address that issue last.

1. Were the investigator-defendants’ statements made in the course of judicial proceedings?

The litigation privilege is not limited to statements made in a courtroom during a trial; “it extends to all statements or communications in connection with the judicial proceeding.” Ruberton, supra, 280 N.J.Super. at 133, 654 A.2d 1002. For example, the privilege covers statements made during settlement negotiations. Id. at 132-34, 654 A.2d 1002. The privilege also protects a person while engaged in a private conference with an attorney regarding litigation. Middlesex Concrete Prods. & Excavating Corp. v. Carteret Indus. Ass’n, 68 N.J.Super. 85, 92, 172 A.2d 22 (App.Div.1961). Such application of the privilege affords litigants and witnesses “the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” Silberg, supra, 786 P.2d at 369 (citation omitted).

Thus, the privilege extends to “preliminary conversations and interviews between a prospective witness and an attorney if they are in some way related to or connected with a pending or contemplated action.” Ascherman v. Natanson, 23 Cal.App.3d 861, 100 Cal.Rptr. 656, 659 (1972). One purpose of the privilege is to encourage “open channels of communication and the presentation of evidence” in judicial proceedings. McClatchy Newspapers, Inc. v. Superior Court, 189 Cal.App.3d 961, 970, 234 Cal.Rptr. 702 (Ct.App.1987). Such open communication is “a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings.” Pettitt v. Levy, 28 Cal.App.3d 484, 104 Cal.Rptr. 650, 654 (Ct.App.1972). The reason has been well explained:

A witness’ apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. Even within the constraints of the witness’ oath there may be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. But the truthfinding process is better served if the witness’ testimony is submitted to “the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.” Imbler v. Pachtman, 424 US 409, 440, 47 LEd2d 128, 96 SCt 984 [999] (1976) (White, J., concurring in judgment).

[Briscoe v. LaHue, 460 U.S. 325, 333-34, 103 S.Ct. 1108, 1114-15, 75 L.Ed.2d 96, 106-07 (1983) (citations omitted).]

Just as we wish witnesses to have absolute freedom to express the truth as they view it, we wish parties to have an unqualified opportunity to explore the truth of a matter without fear of recrimination.

We are satisfied that the pretrial discussions between the investigator-defendants and the witnesses were made in the course of the underlying personal injury litigation.

2. Were the investigator-defendants’ statements made to achieve the objects of the litigation?

Pretrial investigation is “necessary to a thorough and searching investigation of the truth,” Van V. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 477 (1909), and, therefore, essential to the achievement of the objects of litigation. In Devlin, supra, 147 N.J.Super. at 458, 371 A.2d 380, the court implicitly recognized that the statements of a private investigator made during the course of the proceeding would be covered by the privilege, but found that in the circumstances of that case the investigation was too remote from any anticipated litigation.

The evaluation and investigation of facts and opinions for the purpose of determining what, if anything, is to be raised or used in pending litigation is as integral a part of the search for truth and therefore of the judicial process as is the presentation of such facts and opinions during the course of the trial, either in filed documents or in the courtroom itself.

[Adams v. Peck 288 Md. 1, 415 A.2d 292, 295 (1980).]

Pretrial communications by parties and witnesses are protected “to promote the development and free exchange of information and to foster judicial and extra-judicial resolution of disputes.” General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1129 (6th Cir.1990).

The investigations took place in the course of the underlying automobile accident litigation. The disputes therefrom were not resolved before trial, but they might have been. We are satisfied that the investigations were undertaken to achieve the objects of the litigation. Whether the statements were made to achieve the objects of the litigation depends on their relationship to the investigation.

3. Did the investigator-defendants’ statements have some connection or logical relation to the action?

To be privileged, a defamatory statement must have some relation to the course of the proceedings. Fenning, supra, 47 N.J.Super. at 117, 135 A.2d 346. “The pertinency thus required is not a technical legal relevancy, such as would, necessarily, justify insertion of the matter in a pleading or its admission into evidence, but rather a general frame of reference and relationship to the subject matter of the action.” Id. at 118, 135 A.2d 346.

That requirement “was never intended as a test of a participant’s motives, morals, ethics or intent.” Silberg, supra, 786 F.2d at 374. So, too, the morals, ethics, and values of the investigators here cannot resolve the issue of relatedness. The question is whether the three statements at issue were in any way relevant to the proceedings. The allegedly defamatory statements concerning insurance fraud and the subornation of a witness were clearly relevant to the underlying litigation. However, we are less certain about the relevance to the proceedings of plaintiffs claimed infidelity. “[E]xtrajudicial defamatory allegations relating to a party’s honesty are not sufficiently ‘pertinent’ to a judicial proceeding to clothe them with an absolute privilege, when the only basis alleged for finding the allegations pertinent is that the defamed party’s credibility was at issue.” Demopolis v. Peoples Nat’l Bank, 59 Wash.App. 105, 796 P.2d 426, 431 (1990). We shall return to the issue of relevancy in our disposition.

4. Were the investigator-defendants “other participants authorized by law”?

Whether investigators are “other participants authorized by law” is the crucial issue. Had an insurance company for the defendants in the underlying litigation conducted the investigations, the company would have been regarded as a participant authorized by law because of its undoubted interest in the outcome of the proceedings. Petty v. General Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3d Cir.1966) (applying New Jersey law); Doctors’ Co. Ins. Servs. v. Superior Court, 225 Cal.App.3d 1284, 275 Cal.Rptr. 674, 680-82 (1990). The immunity that attends judicial proceedings “protects both counsel and other representatives who are employed to assist a party in the course'of litigation.” Petty, supra, 365 F.2d at 421 (emphasis added). The privilege protects an attorney’s agents and employees in what they do at the attorney’s request. Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265, 267 (1897). Thus, in Middlesex Concrete Products, supra, 68 N.J.Super. at 92, 172 A.2d 22, the court found that the litigation privilege immunized accusations made by an engineering consultant working for a defendant in a pending lawsuit.

The. closest case on point is Leavitt v. Bickerton, 855 F.Supp. 455 (D.Mass.1994). In that case, the mother of a brain-damaged child had sued the birthing physician for malpractice. During the malpractice action, the mother’s attorney sent a letter about the suit to the medical school where the birthing physician taught. The physician, in turn, sued the mother and her attorney for libel. While investigating the libel case, a private investigator working for the physician’s attorney interviewed the mother’s former employers and suggested that she had used alcohol during the pregnancy. The mother sued the doctor’s attorney and investigator for defamation and intentional infliction of emotional distress. The court acknowledged that the investigator “could have used a more tactful method of inquiry or otherwise saved Mrs. Leavitt humiliation and grief,” but it concluded that to be privileged the statement “need only be made in the course of judicial proceedings and be, in some way, related to those proceedings.” Id. at 458. The private investigator’s inquiries met those requirements and were therefore privileged. Ibid. The court concluded:

Finally, it is of little significance that the statements made to Mrs. Leavitt’s former employers were made by a private investigator and not by an attorney. The privilege conferred upon attorneys relates to their function as an advocate on behalf of their client, as is evidenced by the requirement that statements be made in the context of pending or ongoing litigation. Thus, insofar as [the investigator] was engaged in a function which would be protected had it been undertaken by an attorney, he is entitled to absolute immunity while acting as an agent of an attorney.

[Ibid, (citation omitted).]

We believe that that is the correct legal analysis. See Devlin, supra, 147 N.J.Super. at 458, 371 A.2d 380 (assuming that private investigator would be covered by absolute privilege if investigator’s statements had been made in actual course of judicial proceedings). Just as the legislative privilege extends to the aide of the legislator, Gravel, supra, 408 U.S. at 621, 92 S.Ct. at 2624-25, 33 L.Ed.2d at 600, the litigation privilege should extend to the aide of an attorney in the course of legal proceedings.

Because of their extraordinary scope, absolute privileges “have been limited to situations in which authorities have the power both to discipline persons whose statements exceed the bounds of permissible conduct and to strike such statements from the record.” Moore v. Smith, 89 Wash.2d 932, 578 P.2d 26, 29 (1978). The absolute privilege “does not extend to statements made in situations for which there are no safeguards against abuse.” Demopolis, supra, 796 P.2d at 430. See also Rainier’s Dairies v. Raritan Valley Farms, Inc. 19 N.J. 552, 562, 117 A.2d 889 (1955) (“[I]n strictly judicial proceedings the potential harm which may result from the absolute privilege is somewhat mitigated by the formal requirements such as notice and hearing, the comprehensive control exercised by the trial judge whose action is reviewable on appeal, and the availability of retarding influences such as false swearing and perjury prosecutions * * *.”); Binkewitz v. Allstate Ins. Co., 222 N.J.Super. 501, 510, 537 A.2d 723 (App.Div.) (“Judges and lawyers answer to their oaths and are subject to discipline for misconduct in court; parties and witnesses speak under oath or similar restraint, and may be punished for irresponsible speech.”), certif. denied, 113 N.J. 378, 550 A.2d 481 (1988). A-corresponding burden, then, that flows from the benefits of the privilege- is an attorney’s ethical and professional responsibility for the conduct of aides. Cf. In re Opinion No. 24, 128 N.J. 114, 127-30, 607 A.2d 962 (1992) (reminding attorneys of their responsibility to supervise paralegals, whether employees or independent contractors).

IV

We are satisfied that the privilege should extend to the relevant statements of investigators made in the course of pretrial discovery. Courts have the power and authority to impose sanctions (for example, the suppression of improperly adduced evidence) on parties for an abuse of the discovery process. In addition, some private investigators will be subject to State licensure procedures. Finally, an attorney may be held professionally responsible for a lack of supervision of such investigators.

This litigation immunity, of fourteenth century origin, protects lawyers, judges, witnesses, parties, and jurors. Judith Kilpatrick, Regulating the Litigation Immunity: New Power and a Breath of Fresh Air for the Attorney Discipline System, 24 Ariz.St.L.J. 1069, 1072 (1992). “In providing this protection, English courts were concerned that justice would be impaired if those involved in court proceedings could be sued for statements made ‘in the discharge of their public duties or in pursuing' their rights.’ ” Ibid, (quoting Veeder, supra, 9 Colum.L.Rev. at 469).

Given the importance to our justice system of ensuring free access to the courts, promoting complete and truthful testimony, encouraging zealous advocacy, giving finality to judgments, and avoiding unending litigation, it is not surprising that * * * the litigation privilege! ] has been referred to as “the backbone to an effective and smoothly operating judicial system.”

[Silberg, supra, 786 P.2d at 370 (quoting McClatchy Newspapers, supra, 189 Cal.App.3d at 970, 234 Cal.Rptr. 702).]

Those values are at least as important today as they were when the privilege originated 600 years ago. There must be an end to litigation.

The litigation privilege is not, however, a license to defame. A statement is privileged only if it has some relation to the proceeding. Because of the unusual procedural posture of this case, the trial court may. not have fully considered the relevance to the underlying litigation of the investigator’s alleged suggestion of plaintiffs adultery. That issue is not before-us on this appeal.

The judgment of the Appellate Division, is affirmed.