Legal Memorandum: Litigation Privilege

Issue: In Virgin Islands court, when is a plaintiff’s claim barred by the ‘litigation privilege’?

Area of Law: Litigation & Procedure
Keywords: Judicial privilege or judicial immunity; Abuse of process claim
Jurisdiction: Federal, Virgin Islands
Cited Cases: 546 So. 2d 750; 337 F.3d 297
Cited Statutes: None
Date: 11/01/2006

Also called the “judicial privilege” or “judicial immunity,” the litigation privilege “extends to ‘communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.'”  Gen. Refractories v. Fireman’s Fund Ins., 337 F.3d 297, 311 (3d. Cir. 2003) (quoting Post v. Mendel, 507 A.2d 351, 353 (Pa. 1986)).  The privilege exists in order to allow unhindered exploration of legal claims by parties, witnesses, and counsel.  Id.  The focus of the privilege is communications, not conductId. at 312.  Conduct is susceptible to punishment as abuse.  Id. 

In General Refractories, the Court of Appeals for the Third Circuit held that the plaintiff’s complaint could include allegations that the defendant attorneys “abused process in a manner not protected by the judicial privilege.”  Id.  In its complaint the plaintiff made few allegations that pertained to the substance of a communication.  Referencing the definition of an abuse of process claim, the court concluded that “the [litigation] privilege does not extend to either conduct or to other communications neither ‘pertinent and material to the redress or relief sought’ nor ‘essential to the exploration of legal claims in litigation.'”  Id. (citations omitted).

The Florida Supreme Court has stated that the privilege extends to acts and is not limited to communications. But see Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d at 607-08 (Fla. 1994) (party’s act during discovery […]

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