Tuesday, October 7, 2008

Gathering Evidence

The North Carolina Court of Appeals affirmed the dismissal of a slander lawsuit brought against an attorney and his firm under the following facts:

In November 2006, defendant approached Bobby Bracken (“Bracken”), a potential witness in the action originally filed 8 September 2005, while he was eating breakfast in a public place, and either asked Bracken, “Did you hear that [plaintiff] got run out of town for drugs?” or stated, “[Plaintiff] got run out of town for drugs.” Plaintiff filed the instant action on 11 May 2007, alleging defendants (defendant, and his law firm, through the doctrine of respondeat superior) had defamed (slandered) plaintiff through defendant's remarks to Bracken; had intentionally inflicted emotional distress; and had acted negligently...

The court found that the allegations were insufficient to sustain the claim:

Upon these allegations in plaintiff's complaint, we hold that the trial court did not err in dismissing plaintiff's defamation suit, as plaintiff's own evidence is that defendant approached Bracken as a witness, in an attempt to gather evidence for an ongoing suit. Regardless of the accuracy of the alleged statement, we hold that it was not “so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety[,]” and it was “so related to the subject matter of the controversy that it may [have] become the subject of inquiry [e.g., plaintiff's credibility. See N.C. R. Evid., Rule 609.] in the course of the trial,” and thus, “the rule of absolute privilege is controlling.” (citations omitted)

(Mike Frisch)


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