INNOVATIVE DIGITAL MEDIA APPROACH FOR SEEKING WITNESSES TO FACILITATE DISCOVERY IN LITIGATION.

The following is not legal advice, it is a commentary on the area of law involving the issuing of notice to witness press releases in active litigation. Please consult your legal counsel.

FORT LAUDERDALE, FLORIDA: In today’s world, the use of social media continues to exponentially grow. Its purposes range from keeping up with friends, sharing information and keeping up with the news. Law Firms use the internet and social media also as a means to find and locate witnesses and victims. Although the practice is in its proverbial infancy, civil lawyers around the country have issued their own press releases through independent newswires which seek witnesses and also contain the name of the parties, the allegations in the Complaint and even quotes from the actual publicly filed pleadings.

Individual lawsuits against corporations and individuals who are being called out for fraud and forms of theft are usually faced with well-funded opponents who are masters of litigation and know how to abuse the legal system in a war of attrition. Of course, they do not want any interruption to their financial windfalls for wrongful conduct. As such, the “David” of the story needs to innovate the means of obtaining critical information which supports them in obtaining justice and stop some very bad actors to use the legal system to attempt to silence victim’s voices. However, this innovation comes with push back and this article seeks to start the conversation of alternative discovery tools such as press releases seeking witnesses to come forward on a confidential basis.

These press releases serve as a tool for locating witnesses and possible victims who would otherwise not be found through normal discovery tools. The issuance of these notices to witnesses are especially effective in cases involving civil racketeering statutes and massive fraud or torts because they can offer a confidential means to tell their story without fear of reprisal from former

employers, partners, or associates. Undoubtedly, individual defendants who are the subject of these press releases and notices to find victims or witnesses, have attempted to file lawsuits against their opponents and the lawyers who represent them claiming defamation and tortious interference. They have even filed emergency motions for temporary injunctions to attempt to silence witness voices and allegedly protect their online reputation. These emergency hearings usually are conducted with limited discovery and in a very short amount of time, they are slanted for one side of the story – hindering the ability to truly fight back with the truth.

This article provides an analysis of the legal basis for issuing a press release or notice to witness based upon a lawsuit, the balancing of interests between opponents and proponents according to Florida law and the exact reasons that locating witnesses on a confidential basis is necessary such that individuals come forward to share information. This article cautions that while the law is settled, that does not mean that the judiciary at the trial court level is yet willing to condone or approve the use of social media press releases and notices to witnesses in active litigation cases. Actually, it may be quite the opposite in that many judges believe that only formal discovery, in court and “tried and true” is the only things a litigant can avail itself.

The undersigned author is currently involved in substantial litigation over these notice to witnesses and stands by their use, utility and legality. Unquestionably, the use of notice to witness press releases shorts the time and lessens the expense of locating individuals with information which supports my clients in their prosecution of the case. Speaking from experience, witnesses do call with information and they do so to facilitate the administration of justice.

While this practice may be novel, out of the box and innovative, the law that has developed here in Florida – and in every other case in every other state in which undersigned has been able to locate throughout the United States – has determined that a press release which identifies the names of the parties, the allegations and is otherwise a substantially true summary of a publicly filed complaint is protected speech under the absolute litigation privilege. There are no outlining cases at the appellate level. 

As some courts have specifically held, it would be “illogical” to provide an absolute protection to the words in a publicly filed Complaint or other court paper, but not repetition of them in other forms such as social media. Lawsuits themselves are public documents that can be found by anyone, read by anyone and discussed by whomever is interested. In Florida, and in most other jurisdictions, every lawsuit and the legal documents which follow, can be accessed through clerk websites which makes anything happening in any case available with a few clicks of the mouse.

At the end of the day, the law has spoken as to the balancing of interests with respect to litigation and press releases which recite the naming of the parties, quote from the actual pleadings, summarize the claims and provide general information about the lawsuit. As provided herein, the resolution of the issues of the appropriateness of a press release or notice to witnesses are covered under the litigation privilege and, short of that, the 1^st Amendment of the United States Constitution.

1. Litigation Privilege Prohibits Plaintiffs’ Complaint and Motion 

The Notice to Witness Press Releases are not a new strategy for locating witnesses. Law firms around the country have issued press releases, and, naturally, litigation regarding them has been filed for defamation, tortious interference and other torts. In each case, the courts have rejected claims for defamation and tortious interference and other torts based upon the litigation privilege.

Florida has an “extraordinarily broad” litigation privilege. Fischer, 169 So. 3d at 1209. While written or videos seeking witnesses may appear novel, the Press Releases and Videos should be treated no differently than other forms of communication. See Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 255 (Fla. 4th DCA 2011) (noting that “[w]hile the internet’s qualities are certainly unique, it is essentially a medium for communication and interaction, much like the telephone and the mail.”); Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 71 (Fla. 4th DCA 2014) (addressing online videos as the basis for a defamation claim).

Notably, Florida courts have uniformly determined that neither a defamation claim, nor a tortious interference claim can survive a motion to dismiss based upon Florida’s litigation privilege. B&D Nutritional Ingredients, Inc. v. Unique Bio Ingredients, LLC, Case No. 16-62364- CIV-COHN/SELTZER, 2017 WL 8751751(S.D. Fla. Jan. 25, 2017).

In disposing of both the claims, the Court held as to defamation:

The press release at issues contains substantially true and fair statements about the initiation of this lawsuit, the parties involved, and the claims asserted in the Complaint. This combination of a substantially true description of a public document in a judicial proceeding and a single statement of non-actionable opinion simply is not defamatory, even when viewed in the light most favorable to the complainants. 

Id. at 9 [Emphasis added]. As to Tortious Interference, the Court held:

The litigation privilege precludes the use of B&D’s filing of the Complaint and statements therein to establish intentional and unjustified interference. Similarly, Defendant cannot show intentional and unjustified interference based on a press release containing an accurate description of the parties and claims in that Complaint. 

Id. at 11 [Emphasis added]. In AIDS Healthcare, the Southern District ruled that a press release posted by a law firm on its website that discussed the allegations of a newly filed pleading and contained a link to the pleading was within the litigation privilege and a subsequent defamation

claim against the law firm was barred. AIDS Healthcare Found., Inc. v. Carrel, 15-CV-21546- KMW, 2016 WL 11528922, at *2 (S.D. Fla. June 29, 2016). The AIDS Healthcare Court declared:

As a matter of fact, law and practice, the Press Releases and Videos, which reference and quote the already-public pleadings bear “relation to the proceeding” and are thus protected by Florida’s litigation privilege. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994).

As such, it can be strongly argued that any written press release and/or video related to a litigation case cannot form the basis of either a defamation claim or tortious interference claim as they bear a relationship to the proceeding. Levin, 639 So. 2d at 608 (Fla. 1994).

In Levin, the Florida Supreme Court in weighing the interests and policy considerations of the litigation privilege held:  “In balancing policy considerations,  we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. 

Id. (emphasis added).

In applying Levin specifically to litigation investigative techniques, the Southern District of Florida in Microsoft Corp v. Big Boy Distribution LLC, 589 S. Supp. 2d 1308 (S.D. Fla. 2008) came to the same conclusion with respect to the litigation privilege. In that case, Defendant Big Boy filed a counterclaim against Microsoft for its investigative techniques during an ancillary litigation. In addition to other considerations, the Southern District Held the “tortious interference claim is barred by Florida’s litigation privilege to the extent this claim is predicated on Microsoft’s conduct in pursuing its legal remedies through this lawsuit and another lawsuit…”

Id. at 1322.

In sum, the litigation privilege seemingly prohibits any claim for defamation or tortious interference if the statements at issue have “some relation to the proceedings.” However, there remains a disconnect between this innovative practice and the law that supports it and the practical issues one will likely face when taking this course of action. Just because there is case law which uniformly supports the litigation privilege protection, that is no guarantee that a particular court will understand its application considering this is a newly developing area of the law. Likely, one must consider these issues may need to be appealed.

2. Numerous courts outside of Florida recognize that press releases and other statements issued by attorneys are absolutely privileged 

Numerous courts outside of Florida support the position that an attorney’s press release and videos that merely summarizes filed pleadings are absolutely privileged and exempt from a retaliatory action. For instance, in Texas,

“If a case has already begun, Texas courts make a preliminary determination: If an out-of-court communication summarizes or quotes the judicial proceeding, such as press releases, the judicial proceedings privilege applies, and the inquiry ends there.” [Emphasis added].

Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex. App. 2000). The broad privilege described in Finlan was reaffirmed by numerous other Texas Courts:

“The press release contains a basic description of the allegations contained in Plaintiffs’ complaint. Based on the contents of the press release, the Court determines the press release is related to the lawsuit and is therefore covered by the judicial-proceedings privilege.”

Invista S.a. R.L. v. Frontech, Inc., CV H-10-2100, 2011 WL 13249418, at *6 (S.D. Tex. July 29, 2011) (citations omitted).

A California appeals court similarly ruled that an attorney’s press release which “is consistent with paragraph 186 of the first amended RICO complaint . . is protected as a fair and true report of the contents of the pleadings.” GetFugu, Inc. v. Patton Boggs LLP, 162 Cal. Rptr. 3d 831, 841 n.12 (Ct. App. 2013) (citing Abraham v. Lancaster Cmty. Hosp., 266 Cal. Rptr. 360, 377 (Ct. App. 1990). In Abraham, the Court concluded that “[s]ince the articles were accurate reports of the contents of the federal pleadings . . . they were absolutely privileged as a “fair and true report in a public journal, of (1) a judicial … proceeding.” (Civ.Code, § 47, subd. (4).)” Abraham, 266 Cal. at 377.

In Washington State, the Court held that regardless of the medium used, whether website, blog, or other medium, a “fair report” privilege applied to an attorney’s statements on the firm’s website concerning a pending lawsuit as the statements were “accurate or a fair abridgement of the allegations in the wrongful death plaintiffs’ complaint.” McNamara v. Koehler, 429 P.3d 6, 11– 12 (Wash. Ct. App. 2018).

The Supreme Court of New Mexico similarly applied the absolute litigation privilege in order to uphold the policy of affording “attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” Helena Chem. Co. v. Uribe, 2012-NMSC-021, ¶ 2, 281 P.3d 237, 239–40 (New Mexico Supreme Court 2014). In Uribe, the Court concluded that an attorney’s statements to the press were absolutely privileged where the statements merely repeated, republished, or explained the contents of a complaint, given the digital age:

We agree that republishing, repeating, or explaining a complaint that has been filed in good faith should be absolutely privileged because [i]n the age of digital communication, it is illogical to protect allegations in a publicly filed complaint but not repetition or explanation of those same allegations outside the courthouse.

Id. at 246 (quoting PowerDsine, Inc. v. AMI Semiconductor, Inc., 591 F.Supp.2d 673, 684 (S.D.N.Y.2008). Uribe recognizes the obvious – that statements made in pleadings do not lose their privilege merely because they are uttered outside the courthouse.

If you are interested in more information about our experiences with notice to witnesses and press releases, please contact us at [email protected] or call us at 954.252.9818. We are looking to support other attorneys and their clients with our insight and experience on the subject area. The preceding is not legal advice, just the landscape of the area of the law and social media in the context of issuing a press release about a case. This is the beginning of a much larger conversation and we look forward to writing more about specific reasons for issuing press releases seeking witnesses.

Jay L. Farrow