Litigation Unprivileged.

"It's a free country". A familiar refrain indeed. In litigation, it's usually even freer. California law provides a litigation privilege (Cal. Civ. Code Section 47.) The privilege generally immunizes what attorneys and parties say in the course of a lawsuit--usually directed at their opponents. It's designed to promote open communication and zealous advocacy.

In other words, what might be slanderous if said outside of court is immune from such liability inside. A California Court of Appeal opinion filed February 22, 2005, explores limits to the litigation privilege. (Wentland v. Wass, Case No. C045239; read it here.)

In sum, the Wentland court addressed a settlement agreement that required parties not to make certain accusations against Charles Wentland. If breached, Wentland would be entitled to $30,000 and a letter of apology.

In a later lawsuit, parties to the settlement agreement authorized a declaration (statement under oath filed in court), which accused Wentland of wrongdoing. Wentland sued, saying that the declaration violated the nondisparagement settlement agreement.

The trial court found the litigation privilege applied to the declaration, and through out the claim for breach of contract based on the declaration's submission. Wentland appealed, arguing that the litigation privilege does not apply to an action for breach of contract. The Court of Appeal agreed with Wentland and reversed.

The appellate court looked to whether the action would further the underlying policies of the privilege. In this breach of contract case, the Wentland court held that the privilege's purposes are not furthered by application Wentland's claim for breach of contract. The court reasoned that application of the privilege would hinder the purpose of the settlement agreement and invite further, outside litigation. Accordingly, the appellate court held that the litigation privilege should not apply.