255 P.3d 367
N.M. Ct. App.2011Background
- Helena is a crop-protection company in Mesquite, NM, sued by the Uribes in Oct 2008 for personal injury and property damage from alleged environmental hazards.
- Before that action, in Dec 2007, a public-meeting was hosted by Mr. Uribe inviting public attendance and a political reporter attended in his capacity as a news reporter.
- Ms. Thomas (an attorney) and Ms. Wan were invited to the Dec 2007 meeting to discuss potential litigation against Helena; Thomas spoke at the meeting.
- Residents were considering hiring Thomas and Wan to represent them; Thomas and Wan had previously sued Helena in Texas.
- On Oct 9, 2008, a press conference was held immediately after the filing of the Oct 2008 tort action to announce it; Helena then filed defamation suit alleging statements by Thomas at the Dec 2007 meeting and by Thomas and Uribe at the press conference were defamatory.
- Helena sought summary judgment on absolute privilege; the district court granted it, and the NM Court of Appeals reversed on appeal regarding absolute privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-action statements are protected by absolute privilege. | Uribe-Thomas contends timing shows no ongoing or contemplated litigation. | Thomas-Uribe argue statements related to contemplated litigation and were in aid of that process. | Pre-action statements were protected where litigation was contemplated in good faith and seriously considered. |
| Whether statements to invited reporters are protected when reporters had no interest in the proceeding. | Uribe-Thomas argue content linked to proceeding may still be privileged. | Thomas-Uribe contend privilege extends to communications linked to litigation with interested recipients. | Absolute privilege not available for statements to reporters invited to hear but with no relation or interest in the proceeding. |
Key Cases Cited
- Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54 (Md. 1962) (publication to news media not privileged when unrelated to proceeding)
- Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir. 1979) (publication to news media not ordinarily related to judicial proceeding)
- Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (Ariz. 1984) (whether recipient has interest in proceeding crucial to privilege)
- Penny v. Sherman, 101 N.M. 517, 684 P.2d 1182 (Ct.App. 1984) (absolute privilege tied to relation to proceeding; publication factor evaluated)
- Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (Ct.App. 1973) (preliminary communications related to litigation can be privileged)
- Stryker v. Barbers Super Mkts., Inc., 81 N.M. 44, 462 P.2d 629 (Ct.App. 1969) (defines absolute privilege scope in relation to judicial proceedings)
- Gregory Rockhouse Ranch, L.L.C. v. Glenn's Water Well Serv., Inc., 2008-NMCA-101, 191 P.3d 548 (N.M. Ct. App. 2008) (temporal proximity and good-faith contemplation of litigation limit the privilege)