Tennessee Court of Appeals: You (Still) Can’t Sue People For What They Say During Judicial Proceedings

By Daniel A. Horwitz:

Because they are protected by the absolute litigation privilege, litigants and their lawyers cannot be sued for defamation over what they say during the course of judicial proceedings.  Tennessee law does not recognize any exceptions to this rule,[1] which is designed to ensure that participants in judicial proceedings can speak freely without fear of retaliatory lawsuits.  Although Tennessee law has categorically and continuously forbidden such claims for nearly two centuries,[2] though, the reminder that such lawsuits are impermissible is somehow still necessary in countless cases year after year, including a recent decision out of the Tennessee Court of Appeals.

In 2016, Rodney Kilgore—the owner of Monteagle Wrecker Service—was embroiled in a lawsuit against the Tennessee Highway Patrol (THP).  The THP was represented by attorneys Dawn Jordan and Rebecca Lyford, both of whom worked at the Tennessee Attorney General’s Office.

During the discovery phase of Mr. Kilgore’s lawsuit, the THP’s attorneys sought to take the deposition of Gregory Ruth, one of Kilgore’s former drivers.  Days before Mr. Ruth’s deposition was scheduled to take place, someone torched a business owned by Mr. Ruth’s children.  According to Ms. Jordan, the torching occurred “after one of Mr. Kilgore’s emissaries told Mr. Ruth to ‘watch out’” for what was said in the case.

Ms. Jordan was Not Impressed, and she made it clear that she suspected the events were connected.  As a result, the morning before Mr. Ruth’s deposition was scheduled to occur, she sent the following email to Mr. Kilgore’s lawyers:

Good morning, Art and Rusty.

In case you have not already heard, someone torched Greg Ruth’s children’s business, R & R Road Service Wednesday night. This came after one of Mr. Kilgore’s emissaries told Mr. Ruth to “watch out” for what said [sic] in this case. The timing does not seem to be coincidental.

This is serious. I hope that your clients were not involved in this act. As you know, that would be federal witness intimidation, which is a crime even in a civil case. That said, we will be asking for a full investigation from the TBI and the US Attorney’s Office.

We have no intentions of stopping our discovery efforts in this matter. In fact, they will be stepped up. All future depositions, including the ones that WILL take place tomorrow, and will be held at a secure location with metal detectors and officers in attendance.

We look forward to the motion hearing this afternoon.

Dawn Jordan

Minutes later, Ms. Lyford followed up with an additional email, stating:

Gentlemen,

Given what has happened, I am attempting to find a location with a metal detector for everyone who will show up at the depositions tomorrow. I am calling the Winchester Federal courthouse now.

Mr. Kilgore was not impressed, either.  Accordingly, he decided to sue for defamation over Ms. Jordan’s and Ms. Lynford’s emails.  Eventually, the case reached the Tennessee Court of Appeals.

Upon review, a unanimous panel of the Tennessee Court of Appeals concluded that the emails at issue were protected from suit by the absolute litigation privilege.  Because it is an “absolute” privilege—meaning that no amount of creative pleading can overcome its application—the litigation privilege provides “complete immunity” and “is not defeated by [a] defendant’s malice, ill-will, or improper purpose in publishing [a] defamatory communication.”  See Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 22 (Tenn. 2007).  Thus, to invoke the privilege and end a lawsuit outright, a defendant need only establish that the statement over which they have been sued:

(1) Was made “in the course of a judicial proceeding,” see Jones v. Trice, 210 Tenn. 535, 542, 360 S.W.2d 48, 52 (1962), or else, was “preliminary to proposed or pending litigation,” see Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 161 (Tenn. Ct. App. 1997), and

(2) Was “pertinent or relevant to the issue involved in said judicial proceeding.” Jones, 360 S.W.2d at 52.

Applying these factors to the emails sent by Ms. Jordan and Ms. Lyford, the Tennessee Court of Appeals easily determined that they were protected by the litigation privilege, given that they were both made during the course of the federal litigation and were relevant to it.[3]  See Kilgore v. State, No. E2018-01790-COA-R3-CV, 2019 WL 6002126, at *7–*8 (Tenn. Ct. App. Nov. 13, 2019).  Specifically, the Court noted:

In the case at bar, when the Emails were sent by Ms. Jordan and Ms. Lyford to [Mr. Kilgore]’s counsel, the federal litigation had already been initiated by [Mr. Kilgore], and the litigation had entered the discovery phase with a deposition scheduled for the next day.

* * * *

[I]n this case, “the arranging for and preparation for depositions and any communications relating thereto” were part of the discovery process and were therefore made in the course of a judicial proceeding, specifically the federal litigation related to this case.

Id.

Accordingly, Mr. Kilgore’s defamation claim was dismissed, and the case is over for good.  Despite the case’s flagrantly absent merit in light of Tennessee’s absolute litigation privilege, however, this is nowhere near the first time that such a claim has clogged Tennessee’s court system, and it undoubtedly won’t be the last.

Read the Tennessee Court of Appeals’ unanimous decision in Rodney Kilgore v. State of Tennessee, authored by Judge Thomas R. Frierson II, here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you may do using the form below.

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[1] While some other jurisdictions inquire into a speaker’s motivations when determining whether the litigation privilege applies, see, e.g., Dickinson v. Cosby, 17 Cal. App. 5th 655, 682, 225 Cal. Rptr. 3d 430, 454–55 (Ct. App. 2017), Tennessee does not, see Graham v. Archer, No. E2016-00743-COA-R3-CV, 2017 WL 3432687, at *3 (Tenn. Ct. App. Aug. 10, 2017) (“For the absolute privilege to apply, the statement must meet two criteria: (1) It must be in the course of a judicial proceeding, and (2) it must be pertinent or relevant to the issue involved in said judicial proceeding. Whether a statement is relevant or pertinent to the issue involved is a question of law for the court.”) (cleaned up); Unarco Material Handling, Inc. v. Liberato, 317 S.W.3d 227, 238 n.17 (Tenn. Ct. App. 2010) (noting that unlike an absolute privilege, a conditional privilege “is not absolute for it ‘may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose.’”) (citing Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 22 (Tenn. 2007)).  Consequently, as long as there is a “real nexus between the attorney’s conduct and litigation under consideration,” id. at 238, the absolute litigation privilege applies.

[2] See Lea v. White, 36 Tenn. 111, 114 (1856), Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607, 607 (1902).

[3] Indeed, Mr. Kilgore’s counsel apparently conceded as much.  See Kilgore v. State, No. E2018-01790-COA-R3-CV, 2019 WL 6002126, at *7 (Tenn. Ct. App. Nov. 13, 2019) (noting that Mr. Kilgore’s counsel “acknowledg[ed] that the Emails were ‘somewhat related to the overarching legal proceeding’”).

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