Litigation Privilege

The Washington State Court of Appeals, Division One, affirmed the grant of summary judgment through application of the litigation privilege

The litigation privilege immunizes participants in legal proceedings from civil liability based on statements they make during litigation. Litigants often strongly and passionately express their position over the course of a case. The privilege exists to encourage frank and open testimony and argument despite this turbulent emotional atmosphere. It protects participants from retaliatory, derivative lawsuits—regardless of the merit of those suits—instead relying on checks by the trial court such as sanctions to address false testimony. The privilege embodies a compromise. It acknowledges that litigants may at times abuse its protection, while recognizing that our legal system depends on reducing the threat that every statement or argument may lead to further litigation.

Dan Young, an attorney, sued Todd Rayan, Samuel Wilkens, Penny Rohr, and the law firm that employs them based on statements they made during court proceedings. Their statements accused Young of acquiring documents from them through misrepresentation. Young insists that the statements were perjured. He asks us to identify an exception to the litigation privilege for statements made in an attempt to abuse and weaponize the legal process. We decline to do so and affirm, concluding that the trial court properly dismissed Young’s claims at summary judgment.

The underlying issue involved a will provided to plaintiff from defendants

Regardless of precisely what words were exchanged, Young obtained the will. He introduced it into the underlying litigation via a motion to reconsider the dismissal of the probate matter and opposing a motion from Shawn for attorney fees.

After defendants investigated

Two motions, a police investigation, a bar grievance, and the initiation of the present lawsuit followed. First, Gabrielson moved to strike the will from the record in the underlying actions and seal it. Young then moved to compel production of the will from Althauser Rayan Abbarno. Escalating the dispute beyond the courtroom, Gabrielson called the Centralia Police Department about Young, complaining about the manner in which he acquired the will. Detective Timothy O’Dell investigated and referred the case to the Lewis County Prosecuting Attorney’s Office, having concluded that probable cause existed to arrest Young for criminal impersonation in the first degree. Young submitted a bar grievance against Wilkens accusing him of perjuring himself in his declaration. Finally, on January 18, 2022, Young filed the complaint in this lawsuit in King County Superior Court.

The court here concluded that the privilege extends beyond defamation

Though it often arises in the context of defamation suits, the courts have rejected the notion that litigation privilege applies only to that claim. Our supreme court, in the context of witness immunity, has said that the chilling effect of subsequent litigation “is the same regardless of the theory on which that subsequent litigation is based.” Bruce, 113 Wn.2d at 131-32. More generally, the supreme court has used broad language to describe the litigation privilege’s scope, saying that it “applies to statements made in the course of judicial proceedings and acts as a bar to any civil liability.” Deatherage, 134 Wn.2d at 135 (emphasis added). Litigation privilege has been applied to bar liability under a range of causes of action, including civil conspiracy.

Impact of intent

We therefore decline to follow Mason and do not recognize a case-by-case “public policy exception” to the litigation privilege doctrine that looks to a defendant’s intent. We emphasize that the privilege, by design, applies where bad behavior may be addressed through means not always available outside the courtroom, such as sanctions, contempt, striking of testimony, cross-examination, the threat of perjury, and professional discipline. And the effects of improper statements on the progress of the lawsuit in which they are made may be addressed through direct appeal if the trial court errs in its approach. Those harmed by privileged statements are correspondingly not without recourse, even if redress is imperfect. The litigation privilege accepts that imperfection in pursuit of freer speech and conduct in judicial proceedings.

No exception here

Young asserts that there exists a “larger actionable conspiracy” exception to litigation privilege that would allow this claim to move forward because the litigation privilege does not protect conspiratorial use of perjury to accomplish other ends. But the binding cases he cites do not support this proposition, and we decline to hold that any such exception applies here.

(Mike Frisch)