This is off-topic, but one of the curses of writing legal books (we both have) is having to update them. That means we have to set up automatic searches to retrieve new cases. Depending on how broad those searches are, they can collect all kinds of ordinarily extraneous stuff. That’s what happened this morning when Wolk v. Teledyne Industries, Inc., ___ F. Supp.2d ___, 2007 WL 967170 (E.D. Pa. Mar. 30, 2007), popped up in the old in-box. The Wolk decision addresses something so basic and second-nature to all of us in the legal profession, that we couldn’t pass it up.
It’s a defamation case, but we were quite astounded at the central theory of liability that was asserted. Apparently, a federal judge said some things about a lawyer in an opinion that the lawyer took exception to. Rather than appeal that opinion, the lawyer sued his opponent for defamation – for sending a copy of the allegedly libelous opinion to the lawyer's own client! Id., 2007 WL 967170 at *13 (“[Defendants] transmitted an accurate copy of the Omnibus Discovery Order. [Plaintiff] does not allege that [defendants] altered the document in any manner”).
Well, we send new judicial opinions around all the time. We send them to our clients. We send them to members of our firms. We send them to colleagues all over the country. One of us operates a 100-firm listserv for disseminating new developments related to the subject matter of this blog. We have never thought for a moment – it never crossed our minds – that we could possibly face tort liability for sending accurate copies of decisions issued by judges. It just boggles the mind.
Fortunately for just about everyone in the legal profession (and Westlaw and Lexis, too, we suppose), the judge had just about the same reaction to these remarkable allegations as we did. First, they were unprecedented (“[n]either party could find precedent for the precise issue”). Second, the claim violated fundamental judicial precepts (“the accurate republication of judicial orders serves an important public interest”). Third, anything in a judicial opinion is absolutely privileged (sending opinions is “absolutely privileged even if it is alleged that the [person] who transmitted the order knew that it contained erroneous, false, and even defamatory statements”). Id., 2007 WL 967170 at *14 There’s a simple remedy for anybody aggrieved by anything said in a judicial opinion – it’s called an “appeal.” Id. (“[t]he remedy available. . .is an appeal”).
Well, hear, hear. It looks like we’re all safe for now. The only thing we would add that the otherwise thorough opinion did not discuss was that, to us, the transmission of judicial opinions – by anybody and to anybody – should also be First Amendment protected speech of the highest order.
While the Wolk opinion is only under Georgia and Pennsylvania law, we think that the court’s logic is sound and should be adopted by every jurisdiction – if anyone else is ever so bold as to file another suit of this ilk.
And now back to defending prescription drug and medical device product liability litigation.