Bucci & Dix

Defamation With Draft Complaints

Judge Ney’s recent decision, although helpful in clarifying a nagging legal question in Virginia, should not be regarded as an “all clear” for parties to transmit correspondence, especially draft complaints, for purposes of threatening suit unless a settlement is achieved, if such correspondence contains potentially defamatory statements.  Where this arises most frequently, as in Mansfield, is in labor and employment matters, where draft complaints often contain boilerplate accusations that a party was motivated by bias on the basis of sex, race, or national origin.  Attorneys often send such draft complaints, or “demand letters,” to the other side without first analyzing whether any statements they have made could constitute defamation.  As Judge Ney noted, the Virginia Supreme Court has not taken up the issue of the privilege afforded pre-litigation statements so it remains an open question.
 
Until the law is more settled, it is wise not to send draft complaints in the business litigation context, particularly in the labor and employment realm.  The same is true for divorce or child custody matters.  (This is probably not a real concern in automobile accident or slip and fall matters).  If a party is absolutely compelled to send a draft complaint, though, this decision teaches that it should be marked “for settlement purposes,” should only be published to the other side, should contain substantially the same allegations and counts as the complaint that is actually filed, and the actual complaint should be filed soon after the draft complaint is transmitted to the other side (assuming no settlement is achieved).