In Virginia, some statements enjoy absolute immunity from defamation claims. Such statements are said to be protected by an absolute privilege. The most common of the absolute privileges is the so-called “judicial privilege,” which protects statements made in connection with and relevant to a judicial proceeding. The doctrine is typically applied to statements made by witnesses testifying in court, or to scandalous statements made in pleadings or motions filed with a court in connection with a judicial proceeding. For example, if Mrs. Smith files for divorce against Mr. Smith on the ground that he allegedly had an affair with the couple’s au pair, Mr. Smith won’t be able to sue Mrs. Smith for defamation even if the allegation about him and the au pair is completely false; the allegation was made in a judicial proceeding, so it’s absolutely privileged.
There seems to be a trend towards broadening this privilege by expanding the scope of what it means for a statement to have been made “in connection with” a judicial proceeding. In 2012, The Virginia Supreme Court held in Mansfield v. Bernabei that communications made outside of court but preliminary to a proposed judicial proceeding will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is “material, relevant or pertinent” to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. The following year, a federal court sitting in Virginia held that once litigation is filed, the absolute judicial privilege could extend to statements made outside of court, even if made to persons without an interest in the litigation. And now this year, we have another federal case further extending the privilege to cover statements made in the course of a human-resources investigation of an employee’s complaint.