From Parlatore v. Montalvo, decided Tuesday by Judge Randolph Moss (D.D.C.):
This is a defamation action brought by one lawyer practicing before this Court, Timothy Parlatore, against another lawyer also practicing before this Court, Eric Montalvo. The case is only the most recent chapter in a dispute that has metastasized beyond recognition. What started as a whistleblower complaint alleging racial discrimination in a U.S. Navy fighter pilot training program; grew into an investigation of Lt. Steven Shaw, the Navy officer who assisted in filing that whistleblower complaint; then evolved into an investigation of the Navy officers who had investigated Lt. Shaw to determine whether they acted for retaliatory purposes and into a second investigation of Lt. Shaw; eventually led to a lawsuit that Lt. Shaw brought challenging the Navy's actions against him, and a second lawsuit alleging that the Department of the Navy violated the Privacy Act and that the lawyer who represented the investigating officers, Timothy Parlatore, libeled Lt. Shaw; and finally led to the present dispute, which alleges that Lt. Shaw's lawyer, Eric Montalvo, defamed Parlatore in an email exchange between lawyers involved in the Privacy Act/libel litigation.
What stops this give-a-mouse-a-cookie story is ultimately the judicial proceedings privilege:
Under Virginia common law, "the maker of an absolutely privileged communication is accorded complete immunity from liability even though the communication is made maliciously and with knowledge that it is false." "Absolute privilege, sometimes called judicial privilege, is broad in scope and applies to communications made in proceedings pending in a court or before a quasi-judicial body." Notably, the Virginia Supreme Court has "extended the application of the absolute privilege well beyond the actual courtroom." A similar (and arguably more expansive) privilege applies under D.C. law. [Many other jurisdictions follow the same rule. -EV]
"The reason for the rule of absolute privilege in judicial proceedings is to encourage unrestricted speech in litigation. '[T]he public interest is best served when individuals who participate in lawsuits are allowed to conduct the proceeding with freedom to speak fully on the issues relating to the controversy.'" …
[T]he privilege contains four elements. First, the allegedly defamatory statement must be made by an attorney "preliminary to," "in the institution of," or "during the course of and as part of" a judicial proceeding. Second, the proceeding must be one in which the attorney—that is, the individual making the statement—"participates as counsel." Id. Third, the statement must have "some relation to the proceeding." Finally, the statement must have been made only to "interested persons" in the proceeding. Here, Montalvo's statements satisfy all four criteria….
Montalvo's allegation that Parlatore "lied under oath" and "did so intentionally" was made in an email response to the Rule 11 motion that Parlatore drafted, served on Montalvo, and ultimately filed in Shaw v. Modly. More importantly, the statement pertains directly to the allegations at issue in Shaw….
[T]he litigation was ongoing, and the statement at issue was clearly "pertinent" to that litigation. [It was] directly responsive to Parlatore's claim that Montalvo was subject to Rule 11 sanctions for engaging in "frivolous conduct in the filing, maintenance and litigation of" Shaw.… Montalvo was "lead" counsel for Shaw…. [And], as the allegedly offending email itself reflects, it was circulated only to attorneys for the parties in the Shaw litigation or their employees….
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