Robert Writt v. Shell Oil Company and Shell International, E&P, Inc.
409 S.W.3d 59
Tex. App.2013Background
- Plaintiff Robert Writt, a Shell employee, sued Shell for defamation based on statements in an internal investigative report Shell voluntarily prepared and gave to the DOJ about alleged FCPA-related misconduct on a Nigerian project.
- DOJ contacted Shell in July 2007 requesting a meeting about Shell’s dealings with Panalpina; Shell agreed to investigate and later produced a February 5, 2009 report to the DOJ that named and criticized Writt.
- DOJ filed a criminal information against Shell in November 2010 (after Shell’s report) and Shell entered into a Deferred Prosecution Agreement; no summary-judgment evidence showed a pending or proposed prosecution of Writt or Shell at the time the report was produced.
- Shell moved for summary judgment asserting absolute privilege (immunity) for statements made in connection with a governmental investigation; Writt argued only a qualified/conditional privilege applied and that damages (including defamation per se) were shown.
- The trial court granted summary judgment for Shell; the court of appeals reversed, holding absolute privilege was not conclusively established and that the conditional privilege (Restatement §598) applied instead; the case was remanded.
Issues
| Issue | Plaintiff's Argument (Writt) | Defendant's Argument (Shell) | Held |
|---|---|---|---|
| Whether Shell’s statements to the DOJ are absolutely privileged (immune from defamation suit) | No — DOJ had not initiated or proposed a judicial or quasi‑judicial proceeding when Shell produced its report; thus only qualified/conditional privilege applies | Yes — statements were made in response to a DOJ solicitation during an ongoing government investigation; statements solicited by prosecutors are absolutely privileged | Reversed summary judgment; absolute privilege not conclusively established on summary judgment; statements are protected at least by the conditional privilege (communication to one who may act in the public interest) |
| Whether conditional/qualified privilege applies and can protect Shell | Writt: conditional privilege at best; abuse or malice could defeat it | Shell: even if not absolute, the communication was solicited and in public interest, so conditional privilege applies | Court held conditional privilege (Restatement §598) applies as a shield on remand; malice issue remains for further proceedings |
| Whether summary judgment was proper on damages (including defamation per se) | Writt: amended petition added defamation per se; damages presumed | Shell: argued lack of damages in initial motion but did not separately attack amended defamation per se claim on summary judgment | Court noted Shell did not press a separate summary-judgment attack on the defamation-per-se claim; damages for defamation per se are presumed as a matter of law, so damage element unresolved in Shell’s favor on appeal |
| Standard for applying absolute privilege to communications to law-enforcement/prosecutorial agencies | Privilege applies only where communication is part of or preliminary to a proceeding actually contemplated in good faith and under serious consideration | Privilege should extend to solicited communications made during an ongoing investigation, especially when the speaker faces exposure or compulsion to cooperate | Court applied traditional Texas standard: absolute privilege is narrowly confined; communications to prosecuteors pre‑prosecution typically get only qualified privilege unless evidence conclusively shows the communication was preliminary to or part of a judicial/quasi‑judicial proceeding |
Key Cases Cited
- Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762 (Tex. 1987) (communications to prosecutorial agencies are generally only conditionally privileged unless part of an ongoing or contemplated judicial/quasi‑judicial proceeding)
- James v. Brown, 637 S.W.2d 914 (Tex. 1982) (absolute privilege applies to witnesses’ communications preliminary to or part of judicial proceedings if related to the proceeding)
- Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942) (definition and public‑policy basis for absolute privileged communications)
- Zarate v. Cortinas, 553 S.W.2d 652 (Tex. Civ. App.—Corpus Christi 1977) (communications to law enforcement initiating investigations are not necessarily absolutely privileged)
- Clemens v. McNamee, 615 F.3d 374 (5th Cir. 2010) (federal court applied absolute privilege where statements were solicited and given as part of an ongoing federal investigation and witness status and coercive consequences were present)
- Shanks v. Allied‑Signal, Inc., 169 F.3d 988 (5th Cir. 1999) (NTSB investigation held quasi‑judicial; statements in such investigations can be absolutely privileged)
- Clark v. Jenkins, 248 S.W.3d 418 (Tex. App.—Amarillo 2008) (initial or preliminary communications to law‑enforcement designed to launch an investigation are subject only to qualified privilege)