How To Prove A California Litigation Privilege – Immunity Defense
In California, a defense of Litigation Privilege – Immunity is defined as:
Litigation privilege makes a person immune from related future litigation if their conduct, be it fraudulent, perjurious, unethical, or even illegal, took place during the course of litigation.
It simply means:
An immunity from civil liability for statements that may injure or offend an opponent during litigation.
There are 4 elements of the defense:
- Element 1. A communication made in a judicial or quasi-judicial proceeding. A communication made in a judicial or quasi-judicial proceeding refers to any statement or document shared during a legal process, which is protected from being used against the speaker in court, ensuring that people can speak freely without fear of legal repercussions.
Facts that might support this element look like:
* The defendant submitted a sworn affidavit to the court as part of the ongoing litigation process.
* The communication in question was made during a deposition attended by both parties and their legal representatives.
* The statements were presented in a motion filed with the court, seeking a ruling on a specific legal issue.
* The communication occurred during a scheduled court hearing, where both parties had the opportunity to present their arguments.
* The defendant’s remarks were made in a written brief submitted to the judge, addressing the merits of the case. - Element 2. The communication was made by a litigant or other participant authorized by law. The communication must come from someone involved in the legal case, like a party or their lawyer, who is allowed by law to share information related to the case, ensuring that what they say is protected from being used against them later.
Facts that might support this element look like:
* The communication in question was made by the plaintiff’s attorney during a court hearing, which is a recognized legal proceeding.
* The defendant submitted a written statement to the court as part of their official response to the complaint, authorized by legal procedures.
* The communication was part of a deposition conducted under oath, where both parties were represented by their legal counsel.
* The statements were made during a mediation session, which is a legally sanctioned process for dispute resolution.
* The communication was filed with the court as part of a motion, adhering to the procedural rules governing litigation. - Element 3. The purpose of the communication was to achieve the objects of the litigation. The communication aimed to support the goals of a legal case, meaning it was made to help resolve a dispute or prepare for court, which is important for protecting certain discussions from being shared publicly under the litigation privilege.
Facts that might support this element look like:
* The communication was made during a scheduled court hearing, directly addressing issues relevant to the ongoing litigation.
* The content of the communication included legal arguments and evidence intended to support the client’s position in the case.
* The parties involved in the communication were engaged in discussions aimed at resolving the legal dispute amicably.
* The communication was documented in official court records, indicating its relevance to the litigation process.
* The sender explicitly stated that the purpose of the communication was to clarify legal points pertinent to the case at hand. - Element 4. The communication had some connection or logical relation to the action. The communication must be related to the legal action at hand, meaning it should have a clear connection to the case, such as discussing evidence or strategy, to qualify for protection under the Litigation Privilege, which keeps certain discussions confidential during legal proceedings.
Facts that might support this element look like:
* The communication was made during a court proceeding related to the case at hand, directly addressing the issues being litigated.
* The statements made were part of a legal brief submitted to the court, outlining the defendant’s position on the matter.
* The communication involved discussions between attorneys regarding strategies for the ongoing litigation, directly impacting the case’s outcome.
* The correspondence included evidence that was intended to be presented in court, establishing its relevance to the legal action.
* The parties involved were engaged in settlement negotiations, which are inherently connected to the litigation process.
(See Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990).)
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Prove Your CA Litigation Privilege – Immunity Defense
U.S. Civil Cases Only