In Jacobs v. Adelson, 130 Nev. Adv. Op. 44 (Mar. 29, 2014), the Nevada Supreme Court was asked to decide whether statements made to a newspaper during litigation were absolutely privileged. The case involved a defamation claim made by a former employee against Sheldon Adelson. The complaint stemmed from an e-mail statement by Mr. Adelson to the Wall Street Journal about the former employee. The statement was made during the course of litigation with the former employee regarding wrongful termination claims and related to the defenses that would be asserted in the litigation. The trial court determined that the statement was absolutely privileged as a communication relating to litigation and dismissed the defamation claim.
On appeal, the Nevada Supreme Court considered whether the absolute privilege for statements made during litigation or a conditional privilege of reply protected Mr. Adelson’s statement to the media. After recognizing Nevada’s long history of protecting defamatory statements made during the course of judicial and quasi-judicial proceedings, the Court’s majority also recognized that this privilege was not without limits. As a general matter, communications related to litigation or litigation contemplated in good faith have been protected. That protection, however, does not extend to communications made to someone not involved in the judicial proceeding where that recipient of the communication did not have a significant interest in the proceeding. Applying the latter principle, and following the lead of the majority of other states that have considered the issue, the Nevada Supreme Court held that the absolute privilege did not apply to statements made to the media unless the media is otherwise significantly interested in or connected to the outcome of the underlying judicial or quasi-judicial proceeding. To hold otherwise, the majority reasoned, would not further the purpose of promoting truth finding in the judicial process, and could actually lead to more harm. Based on the foregoing, the Court held that the absolute privilege would not apply because the Wall Street Journal did not have an interest in these judicial proceedings, other than as a spectator.
The dissenting Justices would have supported a rule granting an absolute privilege for all communications made to the media about ongoing litigation. The concern of the dissenters was the pervasiveness of the media, especially as it relates to high profile litigation, and the lack of a substantive difference between statements made in court pleadings that then get disseminated by the media and statements made directly to the media.
Although the Court’s ruling is merely a variation on the old adage of be careful what you say, parties to litigation or contemplated litigation and their attorneys would do well to heed that message in considering what is said to the media regarding the litigation and the opposing party. In Nevada, privilege for any statements that are made will not be guaranteed and the statements could be a source of additional litigation.