Doe v. Kohn Nast & Graf, P.C., 866 F.Supp. 190 (1994)
Underlying Employment Matter
Facts: Plaintiff attorney who was infected with Human Immunodeficiency Virus brought an action against his former law firm for, amongst other claims, defamation. Plaintiff alleged that his employment was terminated because he was HIV positive, and that the firm had made certain defamatory statements to the press with respect to plaintiff’s dismissal sometime after he filed his complaint against the firm. The allegedly defamatory comments were made before defendants submitted their answer to plaintiff’s complaint, however, the firm argued they had been made in response to plaintiff’s complaint and, therefore, were conditionally privileged against a defamation suit.
Issue: Are out-of-court statements made to the press during the pendency of the litigation covered under the “fair report privilege”?
Holding: Under Pennsylvania Law, in the course of a judicial proceeding, statements made by the parties or attorneys are granted an “absolute privilege” against a suit for defamation. That protection, however, is not afforded to statements made outside of the courtroom in a press release or news conference that does not further the purpose of the litigation. However, individuals may still invoke a qualified, conditional privilege when they make out of court statements, if those statements fairly and accurately report statements made or pleadings filed in a judicial proceeding.
Here, the Court went one step further and held that Pennsylvania’s “fair report privilege” would apply even to those statements that the party intends to make during the course of judicial proceedings. If it were otherwise, the plaintiff would be permitted to report his own allegations to the press because he had filed his pleadings, while the defendants would be subject to a defamation suit if they attempted to respond simply because they had not yet had the opportunity to file a formal response with the Court.
Lesson: Parties do not have to wait until a formal pleading is filed with the court to make a fair comment to the press concerning the legal proceeding, so long as they believe, in good faith, that the comments accurately set forth the representations to be made in the party’s forthcoming pleading.
Posted in: Pennsylvania