EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 28, 2009

Privileged: Supreme Court Of Nevada Finds Judicial Proceeding Communication Privilege Applies To Nonlawyers

It is a “long-standing common law rule that communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged." Does this privilege, however, extend to instances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding? In its recent opinion in Clark County School District v. Virtual Education Software, Inc., 2009 WL 2414820 (Nev. 2009), the Supreme Court of Nevada answered this question of first impression in the affirmative.

In Virtual Education Software, the Clark County School District (CCSD) and the Clark County Education Association (CCEA), the local teachers' union, were parties to a collective bargaining agreement, which included a provision for teachers to enhance their salaries by obtaining additional degrees, taking either upper-division, graduate-level courses or completing professional development courses offered by CCSD. However, educational courses that were not credit bearing toward a degree could be excluded from the courses eligible for salary enhancement, and CCSD could deny credit for courses that it deemed were of a frivolous nature."  

CCSD decided that courses offered by Virtual Education Software, Inc. (VESI), a Nevada corporation that markets and sells computer-based instruction for educators and business professionals, did not comply with the requirements of the collective bargaining agreement. Therefore, it denied teachers salary enhancements for taking VESI courses. Subsequently, VESI learned of this and wrote several e-mails to CCSD, essentially demanding that CCSD accept the courses “before legal means need to be pursued."  

CCSD responded by, inter alia, sending a letter to VESI's president, with copies to other school administrators and CCSD counsel, which stated in relevant part,

I have researched the VESI courses that you offer for graduate credit from the following universities: Chapman, University of Phoenix, and Southern Utah University. These courses are not credit bearing toward any degree offered by these universities. In addition, some of the courses can be completed in three to five hours and the tests can be successfully passed without reading the material, as evidenced by at least two of my employees. There is no safeguard to determine that the candidate is the one who actually takes the tests. The tests are largely consistent of factual information that can be memorized or copied as notes from the slides and do not require the analysis, synthesis and application levels usually required for graduate coursework.

VESI thereafter sued CCSD, with one cause of action sounding in defamation based in part on this letter. The Supreme Court of Nevada eventually held, however, that the letter was privileged under the privilege for communications made in the course of, or in anticipation of, judicial proceedings. The court noted that it had previously only applied this privilege to communications made by lawyers, but it found two reasons to extend the privilege to nonlawyers:

First, there is no good reason to distinguish between communications between lawyers and nonlawyers. Second, it is anticipated that potential parties to litigation will communicate before formally retaining counsel. 



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