Generally, when parties are involved in litigation, statements made about other parties cannot form the basis of a defamation claim, no matter how much harm they may cause to someone’s reputation. However, the Nevada Courts have recently decided that statements made to the media during litigation are not protected and can form the basis for a defamation claim.[1]

Steven Jacobs filed a wrongful termination suit against Sheldon Adelson, owner of the Sands Corporation. Mr. Jacobs’s Complaint made many comments about Mr. Adelson that were insulting and potentially harmful to his reputation. When the Wall Street Journal published an article about the case, Mr. Adelson felt compelled to respond to the newspaper saying that Mr. Jacobs’s Complaint was built on lies, fabrications, and delusions. After Ms. Adelson made the statement, Ms. Jacobs amended his Complaint to sue Mr. Adelson for defamation.

Mr. Adelson argued that he could not be sued for defamation because what he had said was protected by the litigation privilege as he only commented on an ongoing lawsuit. Mr. Jacobs argued the statements were not protected by any privilege.

The Nevada Supreme Court noted that the purpose of the litigation privilege is to allow parties to speak freely and openly during litigation without the threat of being sued. The privilege, however, only applies during judicial proceedings to statements that relate to the litigation. The party on the receiving end of the communication must also be interested in the proceeding and not an unrelated third party.

This case was unique because the statements were made to the media. The Supreme Court found that the privilege did not apply to statements made to the media because these statements did not foster open and honest communication during the lawsuit nor was the media a party who was significantly interested in the lawsuit. The Supreme Court found that free speech during litigation concerns did not warrant allowing defamatory communications to be made to the media outside of actual litigation proceedings.

Accordingly, defamatory comments made to outside observers of a lawsuit can potentially form the basis for defamation claims so it’s always best to be careful what you say. Attorneys rarely recommend that their client speak to the media and this case is just one more reason why. If you are involved in a civil litigation matter or think you have a civil litigation claim to make, our attorneys are the clear choice for effective representation.

[1] Jacobs v. Adelson, 130 Nev. Adv. Op 44 (May 30, 2014)


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