What is Litigation Privilege in California?

People often ask whether the existence of a lawsuit can be the basis for a damages claim for defamation or harm to reputation. For example, if someone files a lawsuit against me (which is public record) claiming that I stole from them, that may harm my reputation. Do I have any recourse? 

In California, litigation privilege is a principle designed to afford broad protection to parties, attorneys, witnesses, and others participating in judicial or quasi-judicial proceedings. It is codified in California Civil Code Section 47(b). 

The primary purpose of this privilege is to ensure that participants in legal proceedings are free to speak and communicate without the fear of being sued for defamation. This protection covers statements made in a variety of contexts related to litigation, such as: 

• In-court testimony 
• Legal pleadings and documents filed in court (like complaints, motions, and affidavits) 
• Statements made during depositions or other pre-trial proceedings 
• Communications in connection with litigation, such as letters or emails between attorneys and their clients 

So, my recourse in the example above is that I can go to court and defend myself. I can file an answer (which is also public record) defending myself and appear in the case to try to win, which would result in a judge declaring the claims in the complaint were not correct. 

This privilege is a benefit to you in litigation – it means that if you reasonably believe that someone committed an improper act, you are free to say as much in a filed pleading, declaration, or in-court testimony without the fear of being sued for defamation. But, the privilege goes both ways – it also means that the other side in a case can make such claims about you during litigation. 

Why It Limits Recovery for Defamation

Under litigation privilege, statements made in the course of a judicial proceeding are generally immune from defamation lawsuits, even if they are false or malicious. This protection applies as long as the statements are related to the litigation. 

The rationale behind this privilege is to encourage open and vigorous participation in legal proceedings. The courts recognize that if participants feared being sued for defamation, they might be hesitant to fully speak or disclose information, which could hinder the discovery of truth and the effective administration of justice. Therefore, even if someone lies about you in the course of a lawsuit, those statements would typically be protected under litigation privilege. 

Exceptions and Limitations

While litigation privilege offers wide-ranging protection, it’s not absolute. There are certain exceptions and limitations, such as: 

• The privilege does not extend to crimes or acts of fraud unrelated to the judicial proceedings. 
• Statements that are not pertinent or relevant to the litigation might not be covered. 

However, determining whether a particular statement falls within the scope of litigation privilege can be complex and often depends on the specific circumstances of the case. 

Given these nuances, it’s important for you to discuss your specific situation with a legal professional. An attorney can provide tailored advice on whether litigation privilege applies to your case and explore any potential avenues for addressing the false statements outside of a defamation claim.