A person sent a letter to me threatening a lawsuit that was defamatory, do I have a legal claim for defamation?

3 November 2016

Answer:  Probably not.

There are many pitfalls and obstacles to a defamation claim, but even before addressing those, you must meet the initial elements of the claim.  One of those elements is that the defamatory subject matter be published, that means communicated to a third party.  In the above example, it appears that the letter was not published.  However, assuming the letter was copied to a third party, there may be an actual defamation claim.  Now come the obstacles.

The main obstacle here is whether the letter is subject to the litigation privilege.  “In Massachusetts, ‘statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding.’”  58 Swansea Mall Drive, LLC v. Gator Swansea Prop. LLC, Case No. 15-13538, (D. Mass. Oct. 12, 2016) quoting Sriberg v. Raymond, 370 Mass. 105, 108 (1976).  The litigation privilege also covers statements “made preliminary to a proposed or contemplated judicial proceeding.”  Fisher v. Lint, 69 Mass. App. Ct. 360, 366 (2007).  In the above hypothetical, it appears that if the letter was really sent in contemplation of suit, it would be protected by the litigation privilege.  To be sure, more analysis would be needed to assess the letter.

This is because every letter sent that appears to be in contemplation of suit is not covered by the litigation privilege.  In 58 Swansea Mall Drive, the United States District Court rejected a defendant’s argument that four letters concerning a commercial tenant’s alleged default of a lease were covered by the litigation privilege.  The court drew the distinction “between holding a speaker liable for the content of her speech, on the one hand, and using that speech as evidence of her misconduct, on the other.”  The court continued “[t]he litigation privilege applies in the former context, but not the latter.”

As one can see, at first blush the four letters in 58 Swansea Mall Drive seem to be covered by the privilege but the court thought otherwise.  This shows the question is not always that simple, however it is a very important one as it determines whether there is a claim or not.

In the event you are involved in a possible defamation claim, feel free to contact this office.