DelMonico v. Traynor

Summary

The Florida Supreme Court held that an attorney’s allegedly defamatory statements made during ex parte, out-of-court interviews of potential nonparty witnesses in connection with pending litigation are not protected by an absolute privilege. Instead, a qualified privilege applies when the statements relate to the subject of inquiry, requiring the plaintiff to prove express malice; statements unrelated to the inquiry receive no privilege. The Court quashed the Fourth District Court of Appeal’s contrary decision.

Holdings

1. 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.
2. A qualified privilege applies to alleged defamatory statements made by an attorney during ex parte, out-of-court questioning of a potential nonparty witness during investigation of a pending lawsuit, so long as the statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit.
3. The alleged statements concerning DelMonico's use of prostitution were related to the subject of inquiry in the underlying defamation action, so Traynor and his law firm could assert a qualified privilege; DelMonico and MYD were required on remand to prove express malice.

Questions Presented

1. Whether Florida's absolute judicial privilege protects alleged defamatory statements made by an attorney during ex parte, out-of-court interviews of potential nonparty witnesses while investigating a pending lawsuit.
2. Whether a qualified privilege applies to such statements when they are related or connected to the subject of inquiry in the underlying litigation.
3. Whether the defendants were entitled to summary judgment based on absolute privilege.

Disposition

quashed