281 P.3d 237
N.M.2012Background
- Helena Chemical sued Thomas, Uribe, and Thomas & Wan for defamation over pre- and post-litigation statements about a Mesquite mass-tort environmental dispute.
- Pre-litigation statements were made at a December 2007 Mesquite meeting in the presence of a political blogger Haussamen; Thomas allegedly spoke about children at risk and conduct of Helena.
- A mass-tort suit was filed ten months later; Thomas held a post-filing press conference in Mesquite describing the alleged contamination.
- District court granted summary judgment to defendants based on absolute privilege; Court of Appeals reversed, holding press statements cannot be absolutely privileged.
- Supreme Court granted certiorari and held that (a) pre-litigation statements to the press may be absolutely privileged under specified conditions, and (b) post-filing statements that repeat or explain the complaint are absolutely privileged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does absolute privilege apply to pre-litigation statements to the press? | Uribe/Thomas: not applicable because press not related to proceeding. | Thomas/Uribe: press can further mass-tort goals and inform potential litigants. | Yes, if specific criteria are met. |
| What criteria govern pre-litigation privilege with press involvement? | Not necessary to privilege publication to general public. | Press outreach can educate public and identify prospective litigants. | Privilege applies when: serious/good-faith contemplation of litigation, related to contemplated proceeding, identifiable prospective client, and attorney acting as counsel. |
| Does post-filing press repetition/explanation of the complaint receive absolute privilege? | Post-filing statements may taint juries and should not be privileged. | Repeating/explaining a filed complaint serves the objects of litigation and is privileged. | Yes; statements repeating or explaining the complaint are absolutely privileged. |
| Should the privilege extend to litigants’ statements to the press after filing? | Privilege should be limited to counsel-only communications. | Parties deserve privilege to avoid chilling testimony and to aid investigation. | Yes; post-filing privilege extends to both parties and counsel. |
Key Cases Cited
- Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (Ct. App. 1973) (attorney statements related to judicial proceedings are absolutely privileged)
- Green Acres Tr. v. London, 688 P.2d 617 (Ariz. 1984) (press conferences outside court not always privileged; court distinguished NM approach)
- Norman v. Borison, 17 A.3d 697 (Md. 2011) (absolute privilege extends to pre-litigation statements to press in mass-tort context)
- Simpson-Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007) (extending privilege to attorney pre-litigation announcements when prospective client identified)
- PowerDsine, Inc. v. AMI Semiconductor, Inc., 591 F. Supp. 2d 673 (S.D.N.Y. 2008) (courts may treat pleadings/public filings as privilege-extending context)