United States District Court, D. Maine
ALAN J. PERRY, et al., Plaintiffs
v.
JULIET ALEXANDER, et al., Defendants PETER TINKHAM, et al., Plaintiffs
v.
LAURA PERRY, et al., Defendants
ORDER ON DEFENDANTS' MOTION TO PRECLUDE EVIDENCE
OF PLEADINGS AND BAR GRIEVANCES
John
C. Nivison U.S. Magistrate Judge.
This
matter is before the Court on Defendants' Motion in
Limine to Preclude Presentation of Pleadings and/or Bar
Grievances as Evidence of Defamation. (Motion, ECF No. 107.)
Through the motion, Defendants seek to exclude at trial any
written submissions filed by or statements made by Defendants
Peter Tinkham and Juliet Alexander in the course of the
litigation between the parties or in connection with the
professional disciplinary proceedings Defendants initiated
against Plaintiffs Alan and Nina Perry.
After
consideration of the parties' arguments and a review of
the record, the Court denies the motion without prejudice.
Discussion
Statements
made in pleadings and statements made in the course of
litigation are privileged communications and thus not
actionable. Dineen v. Daughan, 381 A.2d 663, 664
(Me. 1978). The privilege also applies to statements made
preliminarily to judicial proceedings. Simon v.
Navon, 951 F.Supp. 279, 282 (D. Me. 1997). For the
so-called litigation privilege to apply, however, the
statements must be relevant to the litigation.
Dineen, 381 A.2d at 665. A party, therefore,
“cannot exploit the privilege as an opportunity to
defame because the privilege is only available when the
challenged remarks are pertinent to the judicial
proceeding.” Simon, 951 F.Supp. at 282.
Here,
Defendants ask the Court to exclude pleadings and statements
made “during the context of litigation.” (Motion
at 5.) While Defendants might be able to establish the
pleadings and statements are within the privilege, on this
record, the Court cannot determine whether Defendants can
demonstrate the pleadings and statements were relevant to the
proceedings. The Court also cannot determine whether the
privilege, if it did apply, was waived. Without further
development of the record, the Court cannot determine whether
any particular pleading or statement is admissible to prove
defamation.
Statements
made to a professional regulatory board are subject to a
conditional privilege. Jobe v. A Complete Spa & Pool
Supply Ctr., Inc., 622 N.W.2d 769 (Wis. 2000)
(recognizing “a conditional privilege to file a
complaint with an administrative agency with respect to
allegedly improper business or professional
practices”); cf. Lester v. Powers, 596 A.2d
65, 70 (Me. 1991) (letter to college tenure committee);
see also Restatement (Second) Torts § 594
(“An occasion makes a publication conditionally
privileged if the circumstances induce a correct or
reasonable belief that (a) there is information that affects
a sufficiently important interest of the publisher, and (b)
the recipient's knowledge of the defamatory matter will
be of service in the lawful protection of the
interest.” (quoted in Rice v. Alley, 791 A.2d
932, 936 - 37 (Me. 2002)); Galarneau v. Merrill Lynch,
Pierce, Fenner & Smith Inc., 504 F.3d 189, 198 (1st
Cir. 2007) (noting parties' agreement that employer's
report to professional association concerning reason for
employee's termination was subject to conditional
privilege).
“If
a conditional privilege exists, liability for defamation
attaches only if the person who made the defamatory
statements loses the privilege through abusing it.”
Rice, 791 A.2d at 937 (quoting Lester v.
Powers, 596 A.2d 65, 69 (Me. 1991)). “Whether the
defendant abused his privilege is a question of fact. Once it
is determined that the defendant is entitled to the
privilege, the burden shifts to the plaintiff to come forward
with evidence that could go to a jury that the defendant
abused the privilege. Abuse includes making the statement
outside the normal channels or with malicious intent.”
Cole v. Chandler, 752 A.2d 1189, 1194 (Me. 2000)
(citations and internal quotations omitted).
In this
case, whether the privilege applies and, if so, whether
Defendants abused the privilege are questions that cannot be
decided without further development of the record. To the
extent, therefore, Defendants ask the Court to determine the
matter in advance of trial, Defendants' motion must be
denied.
Conclusion
Based
on the foregoing analysis, the Court denies the motion
without prejudice to Defendants' right to renew the
motion at trial upon further development of the record. To
permit Defendants the opportunity to assert an objection to
the evidence and to allow the Court the opportunity to
determine whether the evidence is admissible, in the event
Plaintiffs intend to offer any evidence that could reasonably
be considered within the ...