(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 12, 1994 -- Reargued May 1, 1995 -- Decided July 27, 1995
O'HERN, J., writing for a majority of the Court.
The issue on appeal is whether the absolute privilege accorded to statements made by participants in
judicial proceedings extends to statements made by private investigators employed by the parties or their
representatives.
On July 1, 1987, Linda Hawkins was involved in an automobile accident that left her physically and
mentally disabled. On July 14, 1987, Hawkins had another automobile accident that worsened her condition.
Hawkins filed lawsuits against the two responsible parties. Those matters were consolidated for discovery
and trial and a jury returned a verdict in favor of Hawkins for over $400,000.
On April 10, 1981, Hawkins filed a seven-count complaint against various attorney-defendants,
insurer-defendants, and investigator-defendants involved in the underlying personal injury litigation. The
insurer-defendants were the insurers of the various defendants in the automobile accident. The lawyer-defendants were attorneys for one of the motorists in the underlying case. The lawyer-defendants and
insurer-defendants had hired the investigator-defendants to gather information about the accidents and the
resulting damages claimed by Hawkins. Hawkins's complaint included allegations that the investigator-defendants defamed her during their investigation. Her complaint was eventually dismissed by the trial court
for failure to state a cause of action.
Hawkins appealed the dismissal of her complaint. The Appellate Division reversed the trial court's
dismissal of her claims for invasion of privacy, negligent infliction of emotional distress and conspiracy but
affirmed the trial court's dismissal of Hawkins' other claims. One member of the Appellate Division panel
dissented from that part of the decision affirming the dismissal of Hawkins' defamation claims against the
investigator-defendants. According to Hawkins' complaint, the investigator-defendants had portrayed her as
an unfaithful spouse, an insurance cheat, and as a suborner of perjury. The dissent found that those
allegations could amount to actionable defamation unless privileged. The dissent acknowledged that lawyers
are given an absolute immunity for statements made in the course of judicial proceedings so that they may
exercise unfettered judgment in their clients' interests. Nonetheless, the dissent opined that investigators
should be limited to a qualified privilege, being held liable for otherwise defamatory statements the
investigator knows to be false, or utters in reckless disregard of its truth or falsity.
Hawkins appeals to the Supreme Court as of right on the basis of the dissent below.
HELD: Relevant statements made in the course of pretrial discovery by private investigators employed by
the parties or their representatives are protected by an absolute privilege and are, therefore, immune
from liability.
1. Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified
privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutely
privileged and wholly immune from liability. That immunity is predicated on the need for unfettered
expression. The extension of an absolute privilege to jurors, witnesses, and parties and their representatives
is grounded in similar public-policy concerns. The defamatory statement, however, must have some relation
to the nature of the proceedings in order to be privileged. (pp. 5-9)
2. The absolute privilege applies to any communication 1) made in judicial or quasi-judicial proceedings; 2)
by litigants or other participants authorized by law; 3) to achieve the objects of the litigation; and 4) and has
some connection or logical relation to the action. Whether a defendant is entitled to the privilege is a
question of law. The litigation privilege extends to all statements or communications made in connection
with the judicial proceeding. The privilege also extends to preliminary conversations and interviews between
a prospective witness and an attorney if they are related or connected to the pending action. (pp. 9-10)
3. The pretrial discussions between the investigator-defendants and the witnesses were made in the course of
the underlying personal injury litigation and were undertaken to achieve the objects of the litigation. The
allegedly defamatory statements concerning insurance fraud and the subornation of a witness were clearly
relevant to the underlying litigation. However, there is less certainty about the relevance of Hawkins'
claimed infidelity. (pp. 10-14)
4. The litigation privilege should extend to those who aide an attorney in the course of legal proceedings.
Thus, the privilege should extend to the relevant statements an investigator has made in the course of pretrial
discovery. To protect from investigator abuse, courts have the power and authority to impose sanctions on
parties for an abuse of the discovery process. In addition, some private investigators will be subject to State
licensure procedures. Finally, an attorney may be held professionally responsible for a lack of supervision of
such investigators. (pp. 14-18)
5. The litigation privilege is not a license to defame. A statement is privileged only if it has some relation to
the proceeding. Because of the unusual procedural posture of this case, the trial court may not have fully
considered the relevance to the underlying litigation of the investigator's alleged suggestion of Hawkins'
adultery. However, this issue is not before the Court on appeal. (p. 18)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE HANDLER, dissenting, in which the CHIEF JUSTICE and JUSTICE STEIN join, is of
the view that investigators should be limited to a qualified privilege with respect to defamatory statements
made in the course of an investigation that is not a direct part of a judicial proceeding. A qualified privilege
is sufficient to protect investigators and the attorneys who hire them without impinging on the investigator's
ability to conduct a fruitful investigation. The fact that investigators may assist attorneys in preparing a case
does not justify extending an unqualified and absolute privilege to those investigators for statements made in
the course of investigations. Because informal discovery undertaken by investigators is not subject to judicial
supervision, it is subject to abuse. Therefore, the absolute privilege should not be extended to investigators
absent adequate safeguards. As exemplified by this case, the grant of immunity coupled with the absence of
any ethical or legal constraints becomes a license to defame.
JUSTICES POLLOCK, GARIBALDI and JUDGE MICHELS join in JUSTICE O'HERN's opinion.
JUSTICE HANDLER filed a separate dissenting opinion in which the CHIEF JUSTICE and JUSTICE
STEIN join. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
6 September Term 1994
LINDA HAWKINS,
Plaintiff-Appellant,
v.
BRIAN HARRIS, STEPHEN HOPKINS,
BRAFF, EWH&S, SEARCH INVESTIGATIONS,
INC., ALEX TOIA, STATE FARM
INSURANCE CO., and NEW JERSEY
AUTOMOBILE FULL INSURANCE
UNDERWRITING ASSOCIATION (JUA),
Defendants-Respondents,
and
HANOVER INSURANCE CO.,
Defendant.
Argued September 12, 1994 -- Reargued May 1, 1995 --
Decided July 27, 1995
On appeal from the Superior Court, Appellate
Division.
Eldridge Hawkins argued the cause for
appellant.
Hugh Francis argued the cause for respondent
New Jersey Automobile Full Insurance
Underwriting Association (Francis & Berry,
attorneys; Mr. Francis, of counsel; Raymond
N. Torres, Jr., on the brief).
David L. Hack argued the cause for respondent
State Farm Mutual Automobile Insurance
Company (Hack, Piro, O'Day, Merklinger,
Wallace & McKenna, attorneys; Mr. Hack, of
counsel; Douglas J. Olcott, on the brief).
Thomas F. Quinn argued the cause for
respondent Search Investigations, Inc. and
Alex Toia (Wilson, Elser, Moskowitz, Edelman
& Dicker, attorneys; Mr. Quinn, Judith A.
Woods, Brian E. Moffitt, on the briefs).
Jeffrey M. Kadish argued the cause for
respondents Brian Harris, Stephen Hopkins and
Braff, and EWH&S (Morgan, Melhuish, Monaghan,
Arvidson, Abrutyn & Lisowski, attorneys).
Michael K. Furey argued the cause for amicus
curiae New Jersey State Bar Association
(William B. McGuire, President, attorney; Mr.
Furey, Danielle E. Reid, and Raymond A.
Noble, on the brief).
The opinion of the Court was delivered by
O'HERN, J.
Plaintiff alleges that in the course of her personal injury
action against two motorists, she was subjected to repeated
indignities by private investigators acting on behalf of an
insurance company and a law firm representing one of the
motorists. The Appellate Division has ordered a trial to
determine whether defendants intentionally inflicted emotional
distress on plaintiff, and whether defendants invaded plaintiff's
privacy. The Appellate Division was divided on one issue, which
is the subject of this appeal. The question is whether the
absolute privilege accorded to statements made by participants in
judicial proceedings extends to statements made by private
investigators employed by the parties or their representatives.
We agree with the majority of the Appellate Division panel that
the absolute privilege does extend to statements made by private
investigators. We affirm the judgment below.
Because the case arises on the defendants' motions for summary judgment, we may accept as true the facts as set forth in plaintiff's papers. On July 1, 1987, plaintiff, Linda Hawkins, had an automobile accident, which left her physically and mentally disabled. On July 14, 1987, Mrs. Hawkins was involved in another automobile accident, which worsened her condition. She filed lawsuits against the two responsible motorists. The two cases were consolidated for discovery and trial. A jury returned a verdict in favor of Mrs. Hawkins for approximately $435,000. Thereafter, the motorists in the underlying action settled the case for $350,000.
On April 10, 1991, plaintiff filed a seven-count complaint against various attorneys, insurance companies, and investigators involved in the underlying litigation. We shall refer to them as the lawyer-defendants, the insurer-defendants, and the investigator-defendants. The insurer-defendants were the insurers of the various defendants in the automobile accident case. The lawyer-defendants were attorneys for one of the motorists in the underlying case. The lawyer-defendants and insurer-defendants had hired the investigator-defendants - Search Investigations, Inc., and Alex Toia -- to gather information about the accidents and the consequential damages
claimed by plaintiff. Plaintiff's complaint included allegations
that the investigator-defendants defamed her during their
investigation.
All defendants moved to dismiss plaintiff's complaint for
failure to state a cause of action. Plaintiff moved to amend her
complaint. Judge Yanoff dismissed the complaint and denied
plaintiff's motion to amend. Thereafter, Judge Loftus signed an
order granting the plaintiff leave to amend her complaint. When
defendants notified Judge Loftus of Judge Yanoff's previous
denial of the motion to amend, Judge Loftus vacated her order.
The Appellate Division clarified plaintiff's right to file
an amended complaint and reversed the trial court's dismissal of
plaintiff's claims for invasion of privacy, negligent infliction
of emotional distress, and conspiracy. The Appellate Division
affirmed the trial court's dismissal of plaintiff's other claims.
One member of the Appellate Division panel dissented from the
part of the decision affirming the dismissal of plaintiff's
defamation claims against the investigator-defendants. He found
three allegations in the amended complaint especially troubling:
(1) investigator-defendants contacted an attendant at Mrs.
Hawkins' health club and asked him how long he had been having an
affair with her; (2) investigator-defendants twice contacted Mrs.
Hawkins' minister and informed him that she and her husband were
committing insurance fraud; and (3) investigator-defendants
contacted Mrs. Hawkins' housekeeper and asked her how much money
Mrs. Hawkins was paying her to lie.
Those words, portraying plaintiff as an unfaithful spouse,
insurance cheat, and as a suborner of perjury, could amount to
actionable defamation unless privileged. The dissenting member
of the panel acknowledged that lawyers are given an absolute
immunity for statements made in the course of judicial
proceedings so that they may exercise unfettered judgment in
their clients' interest. Nevertheless, he would "limit
investigators to the benefit of a qualified privilege, holding
them responsible for otherwise defamatory language if the
[investigator] knows the statement to be false, or utters it in
reckless disregard of its truth or falsity." Plaintiff appeals
to us as of right on the basis of the dissent below. The only
issue before us, then, is whether the investigator-defendants'
statements were absolutely privileged.
Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings.
[Erickson v. Marsh & McLennan Co., Inc.,
117 N.J. 539, 563 (1990) (citations omitted).]
The trouble with privileges is that they are granted to good and bad alike. A legislator has an absolute privilege on the floor of a chamber to revile, to defame, or to distort the
truth. Invoking the Speech and Debate Clause, U.S. Const. art.
I, § 6, a lawmaker may use this provision "as a cloak of immunity
from prosecution while he [is] smearing the reputations and
characters of American citizens whom the Bill of Rights [had]
been designed to protect." Albert Coates, Preserving the
Constitution: The Autobiography of Senator Sam Ervin,
63 N.C. L.
Rev. 993, 994 (1985) (book review). We accept such a privilege
because it is more important to allow a lawmaker to speak and
vote freely on matters of public concern than it is to punish the
lawmaker as a rogue. The Speech and Debate Clause protects the
integrity of the legislative process by preventing the
"intimidation of legislators by the Executive and accountability
before a possibly hostile judiciary." Gravel v. United States,
408 U.S. 606, 617,
92 S. Ct. 2614, 2623,
33 L. Ed.2d 583, 597
(1972).
A corresponding privilege extends to members of the
judiciary in the performance of judicial duties.
Few doctrines were more solidly established
at common law than the immunity of judges
from liability for damages for acts committed
within their judicial jurisdiction, as [the]
Court recognized when it adopted the
doctrine, in Bradley v Fisher,
13 Wall 335,
20 L ed 646 (1872). This immunity applies
even when the judge is accused of acting
maliciously and corruptly, and it "is not for
the protection or benefit of a malicious or
corrupt judge, but for the benefit of the
public, whose interest it is that the judges
should be at liberty to exercise their
functions with independence and without fear
of consequences." (Scott v. Stansfield, LR
3 Ex 220, 223 (1868), quoted in Bradley v
Fisher, supra, 349; note, at 350,
20 L ed at 650.)
[Pierson v. Ray,
386 U.S. 547, 554,
87 S. Ct. 1213, 1217-18,
18 L. Ed.2d 288, 294 (1967).]
"The principle of judicial immunity has remained viable in the
face of challenges in some very emotionally and politically
charged cases." Jarvis v. Drake,
830 P.2d 23, 26 (Kan. 1992).
The extension of an absolute privilege to jurors, witnesses,
and parties and their representatives is grounded in similar
public-policy concerns. In Fenning v. S.G. Holding Corp.,
47 N.J. Super. 110 (App. Div. 1957), the late Chief Justice Hughes,
then sitting in the Appellate Division, explained our adherence
to the doctrine of litigation immunity:
The doctrine that an absolute immunity exists
in respect of statements, even those
defamatory and malicious, made in the course
of proceedings before a court of justice, and
having some relation thereto, is a principle
firmly established, and is responsive to the
supervening public policy that persons in
such circumstances be permitted to speak and
write freely without the restraint of fear of
an ensuing defamation action, this sense of
freedom being indispensable to the due
administration of justice.
Our doctrine derives from the English rule of immunity. The
English rule differs slightly from the American rule in that
England affords a true, absolute privilege without regard to the
relevancy of the statements to the subject matter of the
proceedings. Id. at 118 (citing Munster v. Lamb, [1883]
11 Q.B.D. 588).
The only dilution of the rule [of absolute
immunity] which has occurred in New Jersey
(and most American jurisdictions) is the
requirement that the defamatory matter
uttered have some relation to the nature of
the proceedings. Thus, statements made in
the course of judicial proceedings, but not
relevant thereto, are excluded from the
privilege.
[Devlin v. Greiner,
147 N.J. Super. 446, 453
(Law Div. 1977).]
The litigation privilege is still widely accepted. See
Restatement (Second) of Torts §§ 586-87 (1977) (reaffirming
absolute privilege of parties and their attorneys if the
defamatory statements have "some relation to the proceeding");
see also Uniform Defamation Act (Tentative Draft 1992) (providing
an absolute privilege for statements made "in and pertaining to a
judicial proceeding by a judge, attorney, witness, juror, or
other participant"), reprinted in Robert J. Hawley, An Overview
of the Uniform Defamation Act, in Libel Litigation 1992, at 645
app. (PLI Patents, Copyrights, Trademarks, and Literary Property
Course Handbook Series No. 338), available in WESTLAW, PLI-PAT
Database.
Although the public policy served by the absolute privilege
immunizes the defamer from a civil damage action, the privilege
does not protect against professional discipline for an
attorney's unethical conduct. Ruberton v. Gabage,
280 N.J.
Super. 125, 134 (App. Div. 1995); Kirschstein v. Haynes,
788 P.2d 941, 950-51 (Okla. 1990). Nor does the privilege protect a
witness or party who testifies falsely from a perjury
prosecution. Kirschstein, supra, 788 P.
2d at 950-51. "Remedies
for perjury, slander, and the like committed during judicial
proceedings are left to the discipline of the courts, the bar
association, and the state." Wright v. Yurko,
446 So.2d 1162,
1164 (Fla. Dist. Ct. App. 1984).
The California Supreme Court set forth a useful formulation of the litigation privilege in Silberg v. Anderson, 786 P.2d 365 (1990). Although California's litigation privilege has been codified, the underlying principles are substantially the same as those underlying the New Jersey privilege. The absolute privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Id. at 369. Whether a defendant is entitled to the privilege is a question of law. Devlin, supra, 147 N.J. Super. at 460. Because the most difficult question in this case is whether investigator-defendants should be considered "litigants" or "other participants authorized by law," we will address that issue last.
1. Were the investigator-defendants'
statements made in the course of judicial
proceedings?
The litigation privilege is not limited to statements made
in a courtroom during a trial; "it extends to all statements or
communications in connection with the judicial proceeding."
Ruberton, supra, 280 N.J. Super. at 133. For example, the
privilege covers statements made during settlement negotiations.
Id. at 132-34. The privilege also protects a person while
engaged in a private conference with an attorney regarding
litigation. Middlesex Concrete Prods. & Excavating Corp. v.
Carteret Indus. Ass'n,
68 N.J. Super. 85, 92 (App. Div. 1961).
Such application of the privilege affords litigants and witnesses
"the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions." Silberg,
supra, 786 P.
2d at 369 (citation omitted).
Thus, the privilege extends to "preliminary conversations
and interviews between a prospective witness and an attorney if
they are in some way related to or connected with a pending or
contemplated action." Ascherman v. Natanson,
100 Cal. Rptr. 656,
659 (Ct. App. 1972). One purpose of the privilege is to
encourage "open channels of communication and the presentation of
evidence" in judicial proceedings. McClatchy Newspapers, Inc. v.
Superior Court,
189 Cal. App.3d 961, 970 (Ct. App. 1987). Such
open communication is "a fundamental adjunct to the right of
access to judicial and quasi-judicial proceedings." Pettitt v.
Levy,
104 Cal. Rptr. 650, 654 (Ct. App. 1972). The reason has
been well explained:
A witness' apprehension of subsequent damages
liability might induce two forms of self-censorship. First, witnesses might be
reluctant to come forward to testify. And
once a witness is on the stand, his testimony
might be distorted by the fear of subsequent
liability. Even within the constraints of
the witness' oath there may be various ways
to give an account or to state an opinion.
These alternatives may be more or less
detailed and may differ in emphasis and
certainty. A witness who knows that he might
be forced to defend a subsequent lawsuit, and
perhaps to pay damages, might be inclined to
shade his testimony in favor of the potential
plaintiff, to magnify uncertainties, and thus
to deprive the finder of fact of candid,
objective, and undistorted evidence. But the
truthfinding process is better served if the
witness' testimony is submitted to "the
crucible of the judicial process so that the
factfinder may consider it, after cross-examination, together with the other evidence
in the case to determine where the truth
lies." Imbler v Pachtman,
424 US 409, 440,
47 L Ed 2d 128,
96 S Ct 984 (1976) (White,
J., concurring in judgment).
[Briscoe v. LaHue,
460 U.S. 325, 333-34,
103 S. Ct. 1108, 1114-15,
75 L. Ed.2d 96, 106-07
(1983) (citations omitted).]
Just as we wish witnesses to have absolute freedom to express the
truth as they view it, we wish parties to have an unqualified
opportunity to explore the truth of a matter without fear of
recrimination.
We are satisfied that the pretrial discussions between the
investigator-defendants and the witnesses were made in the course
of the underlying personal injury litigation.
2. Were the investigator-defendants'
statements made to achieve the objects
of the litigation?
Pretrial investigation is "necessary to a thorough and
searching investigation of the truth," Van V. Veeder, Absolute
Immunity in Defamation: Judicial Proceedings,
9 Colum. L. Rev.
463, 477 (1909), and, therefore, essential to the achievement of
the objects of litigation. In Devlin, supra, 147 N.J. Super. at
458, the court implicitly recognized that the statements of a
private investigator made during the course of the proceeding
would be covered by the privilege, but found that in the
circumstances of that case the investigation was too remote from
any anticipated litigation.
The evaluation and investigation of facts and
opinions for the purpose of determining what,
if anything, is to be raised or used in
pending litigation is as integral a part of
the search for truth and therefore of the
judicial process as is the presentation of
such facts and opinions during the course of
the trial, either in filed documents or in
the courtroom itself.
[Adams v. Peck,
415 A.2d 292, 295
(Md. 1980).]
Pretrial communications by parties and witnesses are protected
"to promote the development and free exchange of information and
to foster judicial and extra-judicial resolution of disputes."
General Elec. Co. v. Sargent & Lundy,
916 F.2d 1119, 1129 (6th
Cir. 1990).
The investigations took place in the course of the
underlying automobile accident litigation. The disputes
therefrom were not resolved before trial, but they might have
been. We are satisfied that the investigations were undertaken
to achieve the objects of the litigation. Whether the statements
were made to achieve the objects of the litigation depends on
their relationship to the investigation.
3. Did the investigator-defendants'
statements have some connection or
logical relation to the action?
To be privileged, a defamatory statement must have some relation to the course of the proceedings. Fenning, supra 47 N.J. Super. at 117. "The pertinency thus required is not a technical legal relevancy, such as would, necessarily, justify insertion of the matter in a pleading or its admission into evidence, but rather a general frame of reference and relationship to the subject matter of the action." Id. at 118. That requirement "was never intended as a test of a participant's motives, morals, ethics or intent." Silberg, supra, 786 F. 2d at 374. So, too, the morals, ethics, and values of the investigators here cannot resolve the issue of relatedness. The question is whether the three statements at issue were in any way relevant to the proceedings. The allegedly defamatory statements concerning insurance fraud and the subornation of a witness were clearly relevant to the underlying litigation. However, we are less certain about the relevance to the proceedings of plaintiff's claimed infidelity. "[E]xtrajudicial defamatory allegations relating to a party's honesty are not sufficiently `pertinent' to a judicial proceeding
to clothe them with an absolute privilege, when the only basis
alleged for finding the allegations pertinent is that the defamed
party's credibility was at issue." Demopolis v. Peoples Nat'l
Bank,
796 P.2d 426, 431 (Wash. Ct. App. 1990). We shall return
to the issue of relevancy in our disposition.
4. Were the investigator-defendants "other
participants authorized by law"?
Whether investigators are "other participants authorized by
law" is the crucial issue. Had an insurance company for the
defendants in the underlying litigation conducted the
investigations, the company would have been regarded as a
participant authorized by law because of its undoubted interest
in the outcome of the proceedings. Petty v. General Accident
Fire & Life Assurance Corp.,
365 F.2d 419, 421 (3d Cir. 1966)
(applying New Jersey law); Doctors' Co. Ins. Servs. v. Superior
Court,
275 Cal. Rptr. 674, 680-82 (Ct. App. 1990). The immunity
that attends judicial proceedings "protects both counsel and
other representatives who are employed to assist a party in the
course of litigation." Petty, supra, 365 F.
2d at 421 (emphasis
added). The privilege protects an attorney's agents and
employees in what they do at the attorney's request. Youmans v.
Smith,
47 N.E. 265, 267 (N.Y. 1897). Thus, in Middlesex Concrete
Products, supra, 68 N.J. Super. at 92, the court found that the
litigation privilege immunized accusations made by an engineering
consultant working for a defendant in a pending lawsuit.
The closest case on point is Leavitt v. Bickerton,
855 F.
Supp. 455 (D. Mass. 1994). In that case, the mother of a brain-damaged child had sued the birthing physician for malpractice.
During the malpractice action, the mother's attorney sent a
letter about the suit to the medical school where the birthing
physician taught. The physician, in turn, sued the mother and
her attorney for libel. While investigating the libel case, a
private investigator working for the physician's attorney
interviewed the mother's former employers and suggested that she
had used alcohol during the pregnancy. The mother sued the
doctor's attorney and investigator for defamation and intentional
infliction of emotional distress. The court acknowledged that
the investigator "could have used a more tactful method of
inquiry or otherwise saved Mrs. Leavitt humiliation and grief,"
but it concluded that to be privileged the statement "need only
be made in the course of judicial proceedings and be, in some
way, related to those proceedings." Id. at 458. The private
investigator's inquiries met those requirements and were
therefore privileged. Ibid. The court concluded:
Finally, it is of little significance
that the statements made to Mrs. Leavitt's
former employers were made by a private
investigator and not by an attorney. The
privilege conferred upon attorneys relates to
their function as an advocate on behalf of
their client, as is evidenced by the
requirement that statements be made in the
context of pending or ongoing litigation.
Thus, insofar as [the investigator] was
engaged in a function which would be
protected had it been undertaken by an
attorney, he is entitled to absolute immunity
while acting as an agent of an attorney.
We believe that that is the correct legal analysis. See Devlin,
supra, 147 N.J. Super. at 458 (assuming that private investigator
would be covered by absolute privilege if investigator's
statements had been made in actual course of judicial
proceedings). Just as the legislative privilege extends to the
aide of the legislator, Gravel, supra, 408 U.S. at 621, 92 S. Ct.
at 2624-25, 33 L. Ed.
2d at 600, the litigation privilege should
extend to the aide of an attorney in the course of legal
proceedings.
Because of their extraordinary scope, absolute privileges
"have been limited to situations in which authorities have the
power both to discipline persons whose statements exceed the
bounds of permissible conduct and to strike such statements from
the record." Moore v. Smith,
578 P.2d 26, 29 (Wash. 1978). The
absolute privilege "does not extend to statements made in
situations for which there are no safeguards against abuse."
Demopolis, supra, 796 P.
2d at 430. See also Rainier's Dairies v.
Raritan Valley Farms, Inc.
19 N.J. 552, 562 (1955) ("[I]n
strictly judicial proceedings the potential harm which may result
from the absolute privilege is somewhat mitigated by the formal
requirements such as notice and hearing, the comprehensive
control exercised by the trial judge whose action is reviewable
on appeal, and the availability of retarding influences such as
false swearing and perjury prosecutions * * * ."); Binkewitz v.
Allstate Ins. Co.,
222 N.J. Super. 501, 510 (App. Div.) ("Judges
and lawyers answer to their oaths and are subject to discipline
for misconduct in court; parties and witnesses speak under oath
or similar restraint, and may be punished for irresponsible
speech."), certif. denied,
113 N.J. 378 (1988). A corresponding
burden, then, that flows from the benefits of the privilege is an
attorney's ethical and professional responsibility for the
conduct of aides. Cf. In re Opinion No. 24,
128 N.J. 114, 127-30
(1992) (reminding attorneys of their responsibility to supervise
paralegals, whether employees or independent contractors).
We are satisfied that the privilege should extend to the relevant statements of investigators made in the course of pretrial discovery. Courts have the power and authority to impose sanctions (for example, the suppression of improperly adduced evidence) on parties for an abuse of the discovery process. In addition, some private investigators will be subject to State licensure procedures. Finally, an attorney may be held professionally responsible for a lack of supervision of such investigators.
This litigation immunity, of fourteenth century origin, protects lawyers, judges, witnesses, parties, and jurors. Judith Kilpatrick, Regulating the Litigation Immunity: New Power and a Breath of Fresh Air for the Attorney Discipline System, 24 Ariz.
St. L.J. 1069, 1072 (1992). "In providing this protection,
English courts were concerned that justice would be impaired if
those involved in court proceedings could be sued for statements
made `in the discharge of their public duties or in pursuing
their rights.'" Ibid. (quoting Veeder, supra,
9 Colum. L. Rev.
at 469).
Given the importance to our justice
system of ensuring free access to the courts,
promoting complete and truthful testimony,
encouraging zealous advocacy, giving finality
to judgments, and avoiding unending
litigation, it is not surprising that * * *
the litigation privilege[] has been referred
to as "the backbone to an effective and
smoothly operating judicial system."
[Silberg, supra, 786 P.
2d at 370 (quoting
McClatchy Newspapers, supra, 189 Cal. App.
3d
at 970).]
Those values are at least as important today as they were when
the privilege originated 600 years ago. There must be an end to
litigation.
The litigation privilege is not, however, a license to
defame. A statement is privileged only if it has some relation
to the proceeding. Because of the unusual procedural posture of
this case, the trial court may not have fully considered the
relevance to the underlying litigation of the investigator's
alleged suggestion of plaintiff's adultery. That issue is not
before us on this appeal.
The judgment of the Appellate Division is affirmed.
JUSTICES POLLOCK, GARIBALDI and JUDGE MICHELS join in
JUSTICE O'HERN's opinion. JUSTICE HANDLER filed a separate
dissenting opinion in which the CHIEF JUSTICE and JUSTICE STEIN
join. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
6 September Term 1994
LINDA HAWKINS,
Plaintiff-Appellant,
v.
BRIAN HARRIS, STEPHEN HOPKINS,
BRAFF, EWH&S, SEARCH INVESTIGATIONS,
INC., ALEX TOIA, STATE FARM
INSURANCE CO., and NEW JERSEY
AUTOMOBILE FULL INSURANCE
UNDERWRITING ASSOCIATION (JUA),
Defendants-Respondents,
and
HANOVER INSURANCE CO.,
Defendant.
HANDLER, J., dissenting.
The Court acknowledges that plaintiff, seeking to recover for her personal injuries in an action against two motorists, "was subjected to repeated indignities by private investigators acting on behalf of an insurance company and a law firm representing one of the motorists." Ante at __ (slip op. at 2). The "indignities" she endured were slanderous remarks made about her -- that she was an adulteress, a faker, a fraud, and a liar. The Court concludes that there is nothing plaintiff can do about
those slanderous remarks. The Court holds that the policy of
immunity in the law of defamation that grants an absolute
privilege to statements made by participants in judicial
proceedings extends to statements made by private investigators
employed by the parties or their representatives. Ante at __
(slip op. at 2-3).
I strongly disagree with the Court's ruling. Substantially
for the reasons expressed in the partial dissent of Judge Stein
in the Appellate Division, I would limit investigators to a
qualified privilege with respect to defamatory statements made in
the course of an investigation that is not a direct part of a
judicial proceeding.
The law of defamation "embodies the important public policy that individuals and business entities should generally be free to enjoy their reputations unimpaired by false and defamatory attacks." Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 557 (1955). In certain situations, however, "a paramount public interest [dictates] that persons be permitted to speak or write freely without being restrained by the possibility of an ensuing defamation action." Id. at 557-58; see Fees v. Trow, 105 N.J. 330, 336 (1987) (noting that "[t]he law of privilege is designed to protect speech in those narrowly defined instances in which the public interest in unrestrained communication outweighs the right of redress.")
Public policy encourages free and unconstrained
communication in the administration of justice and, to that end,
justifies an absolute privilege for those who participate or are
involved in judicial or quasi-judicial proceedings. Devlin v.
Greiner,
147 N.J. Super. 446, 455 (Law Div. 1977). "The most
noteworthy illustration of the absolute privilege or immunity is
that afforded in judicial proceedings where judges, attorneys,
witnesses, parties and jurors are fully protected against
defamation actions based on utterances made in the course of the
judicial proceedings and having some relation thereto."
Rainier's, supra, 19 N.J. at 558.
The Court here invokes the four-part test espoused in
Silberg v. Anderson,
786 P.2d 365 (Cal. 1990), to justify the
application of the absolute privilege. Ante at __ (slip op. at
9). One prong of that test requires that the communication in
question be made by "litigants or other participants authorized
by law." Id. at 369. The majority concludes under that test the
investigators were "participants" in the original tort litigation
and that their statements were equivalent to statements made in
the course of the judicial proceeding by persons directly
involved in that proceeding. On that basis, the Court finds that
the investigators are therefore entitled to the immunity of the
absolute privilege.
Investigations that are related to litigation are not
necessarily a constituent part of a judicial proceeding as such,
nor do such investigations necessarily become "judicialized" by
referring to them as "informal discovery." Investigators are
neither parties, jurors, judges, attorneys, nor are they
necessarily witnesses. With respect to witnesses, the importance
of open communications is clearly identified by the majority.
The Court observes that
A witness' apprehension of subsequent damages
liability might induce two forms of self-censorship. First, witnesses might be
reluctant to come forward to testify. And
once a witness is on the stand, his testimony
might be distorted by the fear of subsequent
liability.
[Ante at __ (slip op. at 11)
(citing Briscoe v. LaHue,
460 U.S. 325, 333,
103 S.Ct. 1108, 1114,
75 L.Ed.2d 96, 106 (1983) (citations
omitted).]
How likely is it that a hired professional investigator will
"be reluctant to come forward to testify"? Or that he will
distort his testimony because he is afraid of being sued? Even
though an investigator's statements may be afforded an absolute
privilege if the investigator becomes a party witness, see
Devlin, supra, 147 N.J. Super. at 458, that hardly justifies
protecting an investigator's statements made in the course of
unstructured, uncontrolled, and unsupervised "informal
discovery," when the investigator is not a witness.
In Devlin, a husband hired an investigator to confirm
suspicions that his wife was having an affair. The
investigator's report contained statements substantiating an
adulterous relationship. During the subsequent divorce
proceeding, contents of the investigator's report were repeated
by the investigator in the form of an affidavit. After divorce
was granted, the wife and her alleged paramour filed a complaint
against the investigator raising numerous causes of action
stemming from alleged fabrications in his report and subsequent
affidavit. The investigator argued that he was entitled to
immunity based on an absolute privilege because the alleged
fabrications were made in the course of a judicial proceeding.
The Devlin court declined to grant summary judgment in favor
of the investigator based on absolute privilege, finding that
there was a question of fact as to whether the underlying report
was prepared prior to the divorce litigation. Id. at 457-58. In
other words, the court determined that the alleged fabrications
may not have occurred in the course of a judicial proceeding, but
rather in an extra-judicial setting and therefore, the absolute
privilege may not attach.
Drawing support from case law, the Court concludes that an
investigator hired by an attorney is entitled to an absolute
privilege because he or she is a representative of that attorney.
Ante at (slip op. at 16). In support of that position the
Court relies on Middlesex Concrete Products and Excavating
Corporation,
68 N.J. Super. 85 (App. Div. 1961). In that case,
Middlesex contracted with the Borough of Carteret ("the Borough")
to construct a sewage treatment facility. Due to allegations
made by the Carteret Industrial Association, Middlesex became
involved in litigation with the Borough. Philip B. Streander was
retained by the Borough to perform an engineering investigation
of the work performed by Middlesex. The results of Streander's
investigation were extremely favorable to the Borough. During
trial, Streander testified as an expert witness. Finding in
favor of Middlesex, the trial court indicated that "Streander and
his employees had knowingly used improper methods of computation
. . . in an attempt to make out a case of fraud [against
Middlesex]." Id. at 89.
In a subsequent action, Middlesex filed suit against the
Carteret Industrial Association and Streander for tortious
interference with its contract with the Borough. The basis of
Middlesex's action against Streander was his fraudulent
engineering investigation, report, and testimony. Streander
moved for summary judgment on the basis of an absolute privilege.
The Appellate Division affirmed the trial court's grant of
summary judgment holding that "Streander's investigation, report,
consultations, and testimony as an expert witness were made and
given in the course of a judicial proceeding, and all had
relation thereto." Id. at 92 (emphasis added).
The circumstances of this case are certainly
distinguishable. As acknowledged by the Middlesex court, that
case involves a course of communication between an expert witness
and an attorney during the judicial proceeding, not statements
made by investigators to third parties.
The Court further attempts to draw support from Petty v.
General Accident Fire & Life Assurance Corporation,
365 F.2d 419
(3rd Cir. 1966). In that case, a workman was injured during the
construction of a building. He filed suit against numerous
defendants including architects Petty and Croft. The worker
claimed that the negligence of Petty and Croft in planning and
constructing the building had caused him serious physical injury.
Petty and Croft were insured against any liability arising from
negligence in their professional work. The insurance policy
provided the insurers with the obligation to defend any such suit
and the right to make whatever settlement they might deem
expedient.
In accordance with the policy, the insurers hired counsel to
defend the action against Croft and Petty. The insurers, without
the knowledge of Petty, directed counsel to settle the case
against all defendants for $123,000 to which Petty and Croft
would contribute $12,583.33. In the subsequent action for libel
against the insurers, Petty contended that the terms of the
settlement falsely "imputed . . . to the plaintiff negligence and
malpractice by him in his profession as an architect." Id. at
421. The insurers claimed immunity based on an absolute
privilege. Petty responded that the insurers had no such right
because they were not parties to the initial litigation.
Technically, the insurers were not parties to the original
litigation against Petty and Croft. However, recognizing that
the insurers retained the counsel used by Petty, the court stated
that "immunity which attends judicial proceedings protects both
counsel and other representatives who are employed to assist a
party in the course of litigation." Ibid. (noting Middlesex,
supra.). That court further noted:
The authority and interest of the insurance
companies here and the status of counsel as
Petty's attorney make this about as strong a
case as could be for protecting their conduct
as interested and authorized participants in
the settlement to the same extent that a
formal party would be protected.
It cannot be overemphasized that the court extended the absolute
privilege to the insurers because they were "interested and
authorized participants" engaged in a distinct part of the
judicial proceeding, the settlement of the claims against Petty
and Croft. Ante at __ (slip op. at 10).
In Leavitt v. Bickerton,
855 F. Supp. 455 (D. Mass. 1994),
considering factual circumstances somewhat similar to those in
this case, the court chose to extend an absolute privilege to the
investigator. However, neither that court nor this Court,
bothers to explain why a qualified privilege would not provide
reasonable protection for such investigatory statements. A
qualified privilege, in my view, is sufficient to protect
investigators and the attorneys who hire them without impinging
on an investigator's ability to conduct a fruitful investigation.
The Court also indicates that an absolute privilege should
extend to investigators by virtue of their agency relationship
with an attorney. Ante at __ (slip op. at 17). Because
attorneys cannot conduct all aspects of litigation themselves,
they often hire investigators or other agents to prepare for
litigation. That consideration may serve to justify extending
some type of protection to agents of attorneys for statements
made in the course of a judicial or quasi-judicial proceeding,
while under the control, direction or supervision of an attorney.
See Youmans v. Smith, supra,
47 N.E. 265, 267 (N.Y. 1897)
(acknowledging that "the privilege that protected [the attorney]
also protected his agents and employees in whatever they did at
his request that he could have lawfully done himself.").
However, the fact that investigators may aid attorneys in
preparing a case does not justify extending an unqualified and
absolute privilege to investigators for statements made in the
course of investigations.
By denying an absolute privilege to investigators who are
not directly involved in a judicial proceeding, it is possible
that the attorney who hired the investigators could, based on an
agency relationship, ultimately bear responsibility for
defamatory remarks made by an investigator. That possibility of
vicarious liability itself may be fairly remote. The
investigator would be protected by a qualified privilege. Even a
qualified privilege is difficult to overcome in order to
establish defamation liability. In any event, vicarious
liability based on a qualified privilege may be just if the
attorney could have prevented or discouraged the defamatory
conduct by his or her agents. Rather than inhibiting or
discouraging informal, extrajudicial discovery, the possibility
of vicarious liability through a qualified privilege would
promote more effective direction, control and supervision on the
part of the attorney in the conduct of such informal discovery.
Further, the more limited protection of the qualified privilege
could itself constitute an incentive that investigators will act
responsibly and fairly.
The policies of open communications and the search for the
truth may favor affording an investigator an absolute privilege
if and when that investigator becomes a witness to events or
matters that are part of a judicial proceeding. See Devlin,
supra; Middlesex, supra. In that context, the investigator, as
any witness, should be encouraged to speak openly and fully
without fear of reprisal. However, an investigation that may be
related to a judicial proceeding, but is not an actual part of
that proceeding, does not sufficiently implicate the strong need
for open communications that attends the proceeding itself. To
the contrary, without any constraints and absent fear of
repercussion, investigators, as ruefully observed by Judge Stein,
are encouraged to "go forth into the community like marauders,
defaming others with impunity, making statements that they know
are false or are made with reckless disregard of the truth" in an
attempt to uncover witnesses and testimony favorable to their
client's position.
Because the absolute privilege protects even malicious
statements, courts have provided it to only a few categories of
statements and "will not lightly extend the grant of absolute
privilege to new situations unless the policy upon which the
privilege is based is found to exist." Devlin, supra, 147 N.J.
Super. at 456. As is noted, affording investigators with an
absolute privilege does not necessarily promote open
communications and the search for truth, but, as in this case,
encourages insinuation, innuendo and insult.
Bestowing an unqualified and absolute privilege on
investigators removes any assurance that they will try to avoid
tactics that are injurious and harmful. In contrast, attorneys
have incentives other than the threat of a defamation action to
discourage them from making malicious or reckless false
statements about others. For example, the Rules of Professional
Conduct interdict malicious and/or defamatory statements by
attorneys. See, e.g., RPC 3.4(b) (stating that an attorney shall
not "falsify evidence, counsel or assist a witness to testify
falsely."); RPC 4.1(a)(1) (prohibiting attorney from knowingly
making false statements of material fact or law to third
persons); RPC 8.4(c) (stating that an attorney may not "engage in
conduct involving dishonesty, fraud, deceit or
misrepresentation."). Investigators are not subject to similar
strictures which encourage them not to defame third parties. As
recognized by the majority, "the absolute privilege 'does not
extend to statements made in situations for which there are no
safeguards against abuse.'" Ante at __ (slip op. at 16) (quoting
Demopolis v. Peoples Nat'l Bank,
796 P.2d 426, 430 (Wash. Ct.
App. 1990)); see Rainier's, supra, 19 N.J. at 562. Because
informal discovery undertaken by investigators in not subject to
judicial supervision, and is therefore subject to abuse, the
absolute privilege should not be extended to investigators absent
adequate safeguards. See Schulman v. Anderson Russell Kill &
Olick,
458 N.Y.S.2d 448, 453 (Sup. Ct. 1982) (acknowledging that
absolute privilege does not protect statements rendered during
informal discovery because of "the grave potential for abuse and
bad faith in such informal quests for information.").
In my view, the extension of an absolute privilege to investigators, endorsed by the majority, goes much too far. As exemplified by this case, the grant of immunity coupled with the absence of any ethical or legal constraints becomes a license to defame. The absolute privilege, reserved for participants in judicial proceedings, in the hands of hired investigators, does not genuinely or reasonably encourage or promote the truth -- the only purpose intended to be achieved by applying the absolute privilege to judicial and quasi-judicial proceedings and those directly and substantially involved in such proceedings.
Chief Justice and Justice Stein join in this opinion.
NO. A-6 SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
LINDA HAWKINS,
Plaintiff-Appellant,
v.
BRIAN HARRIS, et al.,
Defendants-Respondents,
and
HANOVER INSURANCE CO.,
Defendant.
DECIDED July 27, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Handler