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Circuit Court Rules No Defamation Claim for Draft Complaint

A judge of the Fairfax County Circuit Court, in dismissing a defamation lawsuit filed by an attorney, has ruled that statements made in a draft complaint, sent to putative defendants for settlement purposes, can constitute a “privileged communication” such that no action for defamation will lie. In so ruling, Judge R. Terrence Ney becomes only the second judge in Virginia to address a still open question in Virginia: If a lawyer sends a draft Complaint to the other side, filled with potentially defamatory statements, threatening to sue unless a settlement is reached, can such statements be actionable for defamation?

In Mansfield v. Bernabei, VLW 011-8-099, Judge Ney applied a test established by another judge of the Norfolk City Circuit Court which incorporates the position taken by the Restatement (Second) of Torts. Under that test, the court must first determine whether the statement was made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding.” Second, the court must evaluate the content of the statement to determine if it “has some relation to a proceeding that is contemplated in good faith and under serious consideration.”

In Mansfield, Judge Ney found that part one was easily satisfied as the draft complaint was sent just eight days prior to the actual filing of the complaint. The court also noted that the draft complaint was marked “for settlement purposes,” which suggested that a lawsuit would follow. The court found that the second part was also easily satisfied as the counts in the draft complaint were “substantially similar” to the counts in the complaint that was actually filed.

The extent to which pre-impending litigation statements, particularly in a draft complaint, are privileged or may be the basis for a defamation cause of action is still an open question in Virginia; the Virginia Supreme Court has not spoken on the topic. However, this decision is important for Virginia business litigation plaintiffs and defendants alike as the transmission of draft complaints is a common tactic (especially in the labor and employment context) to scare or compel the other side to settle prior to the filing of suit.