No Get Out Of Jail Free Card Here ' Ohio's Litigation Privilege Applies Only To Civil Defamation Suits

• Published date: 08 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Faruki
• Author: Ms Melinda K. Burton

After being convicted of tampering with records in violation of Ohio R.C. 2913.42(A)(1), which prohibits a person from falsifying any writing or record "knowing that the person has no privilege to do so," Monai Sherea Brown appealed her conviction. She claimed that the false statements she made in documents that she filed in a civil quiet-title action against an innocent homeowner in the hopes of taking his home (a ploy that Ms. Brown had used on at least two other unsuspecting homeowners, by the way) could not support her conviction because they were absolutely protected by the "litigation privilege." In State v. Brown, 2022-Ohio-4347, ' 2, the Ohio Supreme Court rejected that claim: "We hold that the litigation privilege, which protects a person from civil liability for defamatory statements that were made during judicial proceedings and that were reasonably related to the proceedings in which they were made, does not shield a person from criminal liability related to those statements."

In reaching this holding, the Ohio Supreme Court considered the issue "in the context of a sufficiency-of-the-evidence challenge" (' 16) and started with the elements needed to be proven to support a "tampering with records" conviction under R.C. 2913.42(A)(1). Under that criminal statute, the State had to prove that Ms. Brown falsified a writing or record, that Ms. Brown knew she did not have the privilege to do so, and that Ms. Brown did so with the purpose to defraud. Ms. Brown asserted that she had the privilege to lie in documents she filed in the civil quiet-title action, and even if she did not have that privilege, she did not know she could not do that. The Court rejected both arguments.

The Court first addressed Ohio's litigation privilege. As the Court explained, the "litigation privilege is a deeply rooted common-law rule that protects individuals from defamation lawsuits." (' 20.) "Early on, this court acknowledged there were many views on the litigation privilege, ranging from absolute privilege for all statements made during judicial proceedings, to all relevant statements made during judicial proceedings, to all not false and malicious statements made during judicial proceedings." (' 21, citation omitted.) In Erie Cty. Farmers' Ins. Co. v. Crecelius, 122 Ohio St. 210, 212-15, 171 N.E.97 (1930), the court said that "no action will lie" against a party for defamatory statements made in certain contexts but emphasized that the litigation privilege would not...