Shell Oil Company and Shell International, E&P, Inc. v. Robert Writt, 464 S.W.3d 650

DOJ contacted Shell after a contractor (Vetco Gray) pled guilty to FCPA violations involving Panalpina and asked to meet about Shell’s use of Panalpina.
Shell agreed to a DOJ‑approved internal investigation, retained outside counsel/investigators, and promised to report findings confidentially to the DOJ.
The internal investigation interviewed employee Robert Writt, produced a report describing alleged misconduct by Writt, and recommended discipline; Shell provided that report to the DOJ and then terminated Writt.
Writt sued Shell for defamation (based on the DOJ report) and wrongful termination; Shell moved for summary judgment asserting absolute privilege for its report to the DOJ.
The trial court granted summary judgment on the defamation claim; the court of appeals reversed, holding the report was only conditionally privileged because a prosecution was not yet seriously contemplated when Shell submitted it.
The Texas Supreme Court reversed the court of appeals, holding Shell’s report was absolutely privileged because it was made preliminarily to a proposed judicial proceeding (Shell was a target and acted under serious contemplation of prosecution).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether statements to DOJ are absolutely privileged as communications preliminary to a proposed judicial proceeding	Writt: communications were made during an investigation and only conditionally privileged; no prosecution was seriously contemplated when report was provided	Shell: DOJ solicited the report, Shell was a target, and it acted in serious contemplation of prosecution—absolute privilege applies	Held: Absolute privilege applies; report was preliminary to a proposed judicial proceeding because Shell was a target and reasonably contemplated prosecution
Whether communications during a government investigation are distinguishable from Hurlbut	Writt: Hurlbut supports conditional privilege for investigatory communications	Shell: Hurlbut is distinguishable because Shell was a target and compelled to cooperate	Held: Hurlbut not overruled; distinguished—facts here closer to compelled/coerced cooperation (Clemens) and justify absolute privilege

Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762 (Tex. 1987) (differentiates absolute and conditional privilege; witness communications preliminary to proceedings must be in serious contemplation)
James v. Brown, 637 S.W.2d 914 (Tex. 1982) (absolute privilege applies to communications preliminary to judicial proceedings if related to the proceeding)
Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) (extends absolute privilege to certain quasi‑judicial communications when public interest outweighs individual harm)
United States v. Baggot, 463 U.S. 476 (U.S. 1983) (explains “preliminary to” judicial proceedings involves claims under study before formal initiation)
Clemens v. McNamee, 608 F. Supp. 2d 811 (S.D. Tex. 2009) (communications compelled by or solicited in the context of a government investigation can be absolutely privileged)