Edelman Case Precludes Use of Litigation Privilege in Libel and Defamation Cases When Communications Have No Connection to the Lawsuit

The litigation privilege does not apply when a defamatory communication is made to people who have no legitimate “connection to the lawsuit.” Edelman, 338 Ill. App. 3d at 166. The Edelman rule applies whether or not a lawsuit has been filed, whether or not the complaint was shown to outsiders or its underlying allegations just discussed with them, and whether or not the complaint was a draft or filed version.

Nothing in Edelman supports holding that publication of a lawsuit in the court file immunizes the plaintiff in that case from libel claims if he publishes the lawsuit’s claims outside of the litigation.

The Edelman court made its findings based on facts about one attorney who had received a “draft or final” brief and another who had received a draft, all distributed after a bankruptcy trustee moved to reopen the bankruptcy estate. 338 Ill. App. 3d at 162. The court did consider an attorney’s receipt of a final, filed brief. But whether the briefs were in draft or final form was irrelevant to the holding that the allegedly defamatory communications made to two attorneys were not privileged. Id. at 166. Because neither attorney had a relationship to the litigation, the absolute privilege did not apply. Id. “Illinois has never extended the privilege to other persons without a connection to the lawsuit.” Id., citing, Kurzcaba v. Pollack, 318 Ill. App. 3d 686, 704 (1st Dist. 2000), and Thompson v. Frank, 313 Ill. App. 3d 661, 664 (3rd Dist. 2000).

Kurczaba did not reject he privilege only because the case involved an amended complaint not yet filed with leave of court. But, that court actually opined, “Assuming, arguendo, that defendant had a right to disseminate the Malus complaint with the ad, we nonetheless would find that the dissemination was also not protected by the attorney litigation privilege because the groups defendant disseminated the materials to extended beyond those covered by the privilege.” 318 Ill. App. 3d at 703.

The Edelman court reached the same result as to the qualified privilege, which it defined as protecting three categories of communication:

  • Those involving some interest of the person who published the defamatory matter; (2) those involving some interest of the person to whom the matter is published or a third party; and (3) those involving a recognized public interest.

Id. at 167. Answering in the negative on all three points, the court determined the attorneys had no “interest to elevate the communication beyond mere gossip to make it of social importance.” Id. That holding applied whether the litigation brief that was given to the attorneys had been “the draft or final.” Id. at 166.

Accordingly, even when litigation containing allegedly defamatory statements has been filed, the privilege does not apply when communicating the allegations of the case to someone unconnected with the litigation. Neither the absolute privilege —nor the qualified privilege—applies even if the statements are limited to the allegations in a complaint or pleading filed in the public court files.

Our Chicago libel and defamation defense law firm concentrates on defending libel claims and has successfully used the litigation privilege to defeat such claims.  We have also pursued libel claims on behalf of plaintiffs and defeated litigation privilege claims.  For a free consultation call us at 630-333-0333.

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