Does Absolute Judicial Privilege Apply to Employer Investigations?

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.

Let’s take a quick look at Kathryn E. Van Vleck v. Sallyport Global Holdings, Inc. According to the May 2019 opinion, the facts are essentially these: Kathryn Van Vleck worked for Sallyport. In April 2018, she complained to Human Resources that a high-ranking Sallyport employee was defaming her by telling people that she was an alcoholic and implying that she was incompetent, dishonest and unethical. A week later, HR brought in the Crowell & Moring law firm to investigate her complaint. A couple of Crowell & Moring lawyers began interviewing Sallyport employees, during which they asked questions not only about alleged drinking but also about whether she had sex with a subordinate and about an incident in which she supposedly removed her underwear in front of coworkers in a public place. Van Vleck sued the law firm and others, claiming (among other things) that these questions posed to various Sallyport employees having nothing to do with alcoholism interview-2207741_960_720-300x200were defamatory. Crowell & Moring moved to dismiss based on absolute judicial privilege.

The court was very receptive to the law firm’s argument, referring to the “absolute privilege for anticipated or actual litigation statements”–which is not exactly how the Virginia Supreme Court has described the privilege. The court found that the circumstances were sufficient to satisfy the test established in Mansfield v. Bernabei:

(1) The investigators’ statements were made preliminary to a threatened judicial proceeding contemplated in good faith and under serious consideration as Van Vleck had complained about the tort of defamation, which was apparently serious enough for Sallyport to retain outside counsel;

(2) The investigators’ questions to Sallyport employees were related to the anticipated defamation proceeding, as they were entitled to explore Van Vleck’s reputation among her co-workers in light of her defamation complaint; and

(3) The investigators’ questions were made to persons with an interest in the proposed proceeding as Sallyport employees were potential witnesses.

One especially interesting aspect of the court’s ruling is that unlike earlier decisions applying absolute judicial privilege, the statements deemed to be privileged in this case were made by someone other than the person contemplating bringing the proceeding. It’s unclear whether the opinion in Mansfield v. Bernabei was intended to apply to statements made by a person on the receiving end of a threat of litigation, but now we have at least one case finding that the privilege does indeed apply in such situations.

The court went on to hold that even if absolute judicial privilege didn’t apply, the statements at issue would be protected by a qualified privilege as they were made between persons on a subject in which the persons share an interest or duty. “Under the qualified privilege,” the court held, “the Amended Complaint fails to state claims against Crowell.” I would only note here that unlike the absolute judicial privilege, a qualified privilege may be lost through abuse, and whether such abuse has occurred is ordinarily a jury question rather than a matter to be decided on a motion to dismiss. Federal courts, however, are generally much more willing than Virginia state courts to dismiss cases on grounds of qualified privilege.

As yet another alternative ground in favor of dismissal, the court held that the investigators’ questions were not defamatory for the simple reason that they were questions (as opposed to assertions of fact). Here again, I have to quarrel a bit with the court’s analysis. The court held that the statements (even without the benefit of any privilege) were not actionable “because the statements were questions.” In my opinion, this oversimplifies the matter as certain questions–depending on how they are expressed and the context in which they are made–could be interpreted as thinly-veiled implied assertions of fact. I would argue that in such circumstances, statements phrased as questions could indeed be defamatory.

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