                                                                                          11/13/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 July 18, 2019 Session

                RODNEY KILGORE v. STATE OF TENNESSEE

                   Appeal from the Tennessee Claims Commission
                 No. T20180132    William A. Young, Commissioner


                             No. E2018-01790-COA-R3-CV


This appeal arose from a claim filed with the Tennessee Claims Commission against the
State of Tennessee (“the State”), seeking an award of damages for defamation allegedly
committed by two attorneys employed by the State during the course of a separate federal
litigation involving the claimant. The State filed a Tennessee Rule of Civil Procedure
12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted,
and the claimant filed, inter alia, a response objecting to the motion. Following a
hearing, the Claims Commission dismissed the claim upon finding that the litigation
privilege applied to protect the statements at issue and that the statements were not
defamatory. The claimant has appealed. Having determined that the litigation privilege
applies, we affirm.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                           Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Arthur F. Knight, III, Knoxville, Tennessee, for the appellant, Rodney Kilgore.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; and Amber L. Seymour, Assistant Attorney General, for the appellee,
the State of Tennessee.

                                        OPINION

                          I. Factual and Procedural Background

       The claimant, Rodney Kilgore (“Claimant”), is the owner of Monteagle Wrecker
Service. Claimant was a co-plaintiff in two federal actions (“the federal litigation”) filed
in the United States District Court for the Eastern District of Tennessee against officers of
the Tennessee Highway Patrol (“THP”).1 The defendants in the federal litigation were
represented by, as relevant here, two attorneys employed by the State of Tennessee:
Deputy Attorney General Dawn Jordan and Assistant Attorney General Rebecca Lyford.
During the discovery phase of the federal litigation, the defendants scheduled the
deposition of Gregory Ruth, who had previously been employed by Claimant as a driver,
for November 29, 2016. Mr. Ruth’s two sons owned an interest in a business known as
R&R Road Service. On November 23, 2016, the R&R Road Service building caught fire,
causing significant damage.

        On the morning of November 28, 2016, Ms. Jordan sent an email to Claimant’s
counsel in the federal litigation, Arthur F. Knight, III, and Russell Leonard, which stated
in its entirety:

       Good morning, Art and Rusty.

       In case you have not already heard, someone torched Greg Ruth’s
       children’s business, R&R Road Service Wednesday night. This came after
       one of Mr. Kilgore’s emissaries told Mr. Ruth to “watch out” for what said
       [sic] in this case. The timing does not seem to be coincidental.

       This is serious. I hope that your clients were not involved in this act. As
       you know, that would be federal witness intimidation, which is a crime
       even in a civil case. That said, we will be asking for a full investigation
       from the TBI and the US Attorney’s Office.

       We have no intentions of stopping our discovery efforts in this matter. In
       fact, they will be stepped up. All future depositions, including the ones that
       WILL take place tomorrow, and will be held at a secure location with metal
       detectors and officers in attendance.

       We look forward to the motion hearing this afternoon.

       Dawn Jordan

Within minutes, Ms. Lyford sent an email to Claimant’s counsel, stating:




1
 These cases were Christine Adair et al. v. Johnny Hunter et al., No. 1:16-cv-00003 (E.D. Tenn.), and
Rodney Kilgore et al. v. Johnny Hunter et al., No. 1:16-cv-340 (E.D. Tenn.).
                                                     2
        Gentlemen, Given what has happened, I am attempting to find a location
        with a metal detector for everyone who will show up at the depositions
        tomorrow. I am calling the Winchester Federal courthouse now.

These two email messages constitute the communication at issue in this defamation
action (“the Emails”). Also on the morning of November 28, 2016, Mr. Knight
responded to Ms. Jordan by sending an email message, asking, “Are you accusing me of
something?” Ms. Jordan replied: “No, sir. I just did not know if you were aware. We
will be calling various agencies this afternoon.”

       On November 29, 2016, the scheduled date of the deposition, Claimant, along with
the other plaintiffs in the federal litigation, filed a motion requesting a protective order on
all discovery of the “Mr. Kilgore” and any unnamed “emissaries” referenced in Ms.
Jordan’s November 28, 2016 email message. The plaintiffs attached to the motion the
Emails. In the motion, Claimant’s counsel noted that in the initial email message, Ms.
Jordan did not specify the “Mr. Kilgore” to which she referred. The deposition
proceeded as scheduled.2

       On July 27, 2017, Claimant filed a notice of claim with the Division of Claims
Administration, alleging that he had been defamed by Ms. Jordan and Ms. Lyford
through the statements made in the Emails. See Tenn. Code Ann. § 9-8-307(a)(1)(R)
(Supp. 2019) (providing the Claims Commission with “exclusive jurisdiction to
determine all monetary claims against the state based on the acts or omissions of ‘state
employees’” with regard to “[c]laims for libel and/or slander where a state employee is
determined to be acting within the scope of employment.”)3 In the initial claim, Claimant
included as a co-claimant his father, William Kilgore, who was also a plaintiff in the
federal litigation and owned a different wrecker service. Claimant then filed an amended
claim on August 9, 2017, removing his father as a claimant and adding details concerning
alleged publication of purportedly defamatory statements made by Ms. Jordan and Ms.
Lyford.

       The Division of Claims Administration transferred the claim to the Claims
Commission (“the Commission”) on October 25, 2017. See Tenn. Code Ann. § 9-8-
402(c) (Supp. 2019) (“If the division fails to honor or deny the claim within the ninety-
day settlement period, the division shall automatically transfer the claim to the

2
  In an affidavit filed with the Claims Commission in this action, Claimant’s counsel noted that in the
federal litigation, the district court ultimately denied Claimant’s and the other plaintiffs’ motion for a
protective order.
3
  “Libel and slander are both forms of defamation; libel being written defamation and slander being
spoken defamation.” Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001).
                                                 3
administrative clerk of the claims commission.”). The Commission entered an order
governing the proceedings on November 2, 2017.

        The State filed a motion to dismiss Claimant’s defamation claim and a
memorandum of law in support of the motion on November 30, 2017, asserting that the
Emails were protected by the litigation privilege and that they were not defamatory.
Claimant filed a response to the motion to dismiss on February 2, 2018, asserting that the
litigation privilege did not apply in this case because the Emails were not sent in the
course of a judicial proceeding and were unrelated to the subject matter of the federal
litigation. His response to the motion to dismiss included a memorandum of facts and
law with an attached appendix of exhibits, including, inter alia, a transcript from a
preliminary hearing held in the Marion County General Sessions Court on February 22,
2017.

       In his amended notice of claim, Claimant averred that during this preliminary
hearing, “a Phillip Hamilton testified that Ms. Lyford informed him that [Claimant]
burned a building and threatened someone’s life.” The transcript supports this
description of the pertinent testimony presented by Mr. Hamilton, who had previously
been employed by Claimant. The transcript indicates that the preliminary hearing was
conducted upon the State’s allegation that Claimant had intimidated a witness, Mr.
Hamilton, following a deposition taken during discovery in the federal litigation.
Claimant vehemently denies that any such witness intimidation occurred.4

        Also included in these exhibits was a letter written by Knoxville attorney, Michael
P. McGovern, which Claimant asserted evinced the damage done to his reputation by the
allegedly defamatory emails. Mr. McGovern had sent the letter on February 28, 2017, to
the president of the Tennessee Tow Truck Association (“TTTA”), offering his services in
filing a separate lawsuit against the THP concerning the procedure that should be
followed when the THP revised its Towing Services Manual. At the conclusion of the
letter, Mr. McGovern mentioned the federal litigation involving Claimant, stating:

        One final comment: The Monteagle Wrecker Service litigation which was
        filed last year in federal court in Chattanooga, which I sent you a copy of,
        has absolutely nothing to do with the THP Manual or the UAPA [Uniform
        Administrative Procedures Act]. It is a very personal dispute between non-
        member [Claimant] and certain members of the THP. During the course of
        the litigation there have been serious allegations raised of sexual
        harassment, witness intimidation and the retaliatory arson of a business.
4
  Although the transcript demonstrates that the general sessions court bound the criminal charge over to
the grand jury, an affidavit subsequently filed in this action by Mr. Leonard indicates that the charge was
ultimately dismissed.
                                                      4
       Last week, the court banned [Claimant] from attending further discovery
       depositions due to his disruptive behavior. I would urge, in the strongest
       terms, against TTTA intervening in that case in any manner. Even if
       [Claimant] is successful in his lawsuit, it will not resolve the issue to be
       addressed in the lawsuit I have proposed.

       On March 6, 2018, the State filed a motion to exclude evidence outside of the
pleadings, seeking to exclude three exhibits that had been attached to Claimant’s
response to the motion to dismiss: the preliminary hearing transcript with Mr.
Hamilton’s testimony, Mr. McGovern’s letter, and an affidavit executed by Claimant’s
counsel. The State then filed a reply, reasserting its argument that the Emails were
protected by the litigation privilege. On March 26, 2018, Claimant filed a motion for
leave to file a second amended notice of claim, in which he addressed procedural
arguments made by the State and reasserted his argument that the litigation privilege was
not available to the State. He noted in this motion that his first amended notice was filed
when the claim was still with the Division of Claims Administration, with the effect that
this proposed amendment would be the first since the transfer to the Commission.
Claimant then filed a motion requesting leave to file a sur-reply.

        On June 1, 2018, the Commission conducted a hearing on all pending motions. In
an order entered July 2, 2018, the Commission granted Claimant’s motions for leave to
file a second amended notice of claim and a sur-reply; overruled, without prejudice, the
State’s motion to exclude evidence outside the pleadings; allowed the State time to file
any supplemental response to Claimant’s sur-reply; and took the State’s motion to
dismiss under advisement. Claimant’s second amended notice of claim, ultimately filed
with his sur-reply on July 19, 2018, was substantially the same as his previous notice of
claim with the additional assertion that Ms. Jordan and Ms. Lyford were acting within the
course and scope of their employment with the State when they sent the Emails. He also
attached, inter alia, the transcript of the preliminary hearing in general sessions court and
the letter sent by Mr. McGovern. The State filed a “Motion to Dismiss Second Amended
Complaint And/or Response to Sur Reply,” and Claimant filed a response.

       On September 17, 2018, the Commission entered an order granting the State’s
motion to dismiss. The Commission specifically found that it was not necessary for the
State’s motion to dismiss to be converted to a motion for summary judgment and
accordingly excluded from consideration some exhibits concerning the federal litigation
that had been attached to pleadings. The Commission considered the following exhibits
that had been attached to Claimant’s Second Amended Notice of Claim: the Emails, the
preliminary hearing transcript from general sessions court, and the letter written by Mr.
McGovern. The Commission also considered the two complaints initially filed in the
federal litigation, which, as the Commission noted, were specifically referenced in
                                             5
Claimant’s Second Amended Notice of Claim. In dismissing this defamation action, the
Commission found that the Emails were protected by the litigation privilege and were not
defamatory. Claimant timely appealed.

                                    II. Issues Presented

       Claimant has presented two issues on appeal, which we have restated as follows:

       1.     Whether the Commission erred in determining that the Emails were
              protected by the litigation privilege.

       2.     Whether the Commission erred in determining that the Emails were
              not defamatory.

                                 III. Standard of Review

       Neither party has raised an issue concerning which items attached to the pleadings
the Commission considered or the Commission’s decision to proceed with the State’s
motion as a Rule 12.02(6) motion to dismiss. Generally, “[i]f matters outside the
pleadings are presented in conjunction with either a Rule 12.02(6) motion [to dismiss] or
a Rule 12.03 motion [for judgment on the pleadings] and the trial court does not exclude
those matters, the court must treat such motions as motions for summary judgment and
dispose of them as provided in Rule 56.” Patton v. Estate of Upchurch, 242 S.W.3d 781,
786 (Tenn. Ct. App. 2007).

       In determining that it was not necessary to convert the State’s motion to dismiss to
a motion for summary judgment, the Commission specifically found that all of the items
it considered were “incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, items appearing in the record of the case,
or an exhibit attached to the Complaint whose authenticity is unquestioned.” In so
finding, the Commission quoted Western Express, Inc. v. Brentwood Servs., Inc., No.
M2008-02227-COA-R3-CV, 2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26, 2009)
(quoting Ind. State Dist. Council of Laborers v. Brukardt, No. M2007-02271-COA-R3-
CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009) (delineating exceptions to
the general rule). Upon review, we determine that the Commission properly considered
the items noted and that such consideration did not necessitate converting the motion to
dismiss to a motion for summary judgment.

      As our Supreme Court has explained with regard to motions seeking dismissal of a
complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6):

                                             6
             A Rule 12.02(6) motion challenges only the legal sufficiency of the
      complaint, not the strength of the plaintiff’s proof or evidence. The
      resolution of a 12.02(6) motion to dismiss is determined by an examination
      of the pleadings alone. A defendant who files a motion to dismiss “‘admits
      the truth of all of the relevant and material allegations contained in the
      complaint, but . . . asserts that the allegations fail to establish a cause of
      action.’”

              In considering a motion to dismiss, courts “‘must construe the
      complaint liberally, presuming all factual allegations to be true and giving
      the plaintiff the benefit of all reasonable inferences.’” A trial court should
      grant a motion to dismiss “only when it appears that the plaintiff can prove
      no set of facts in support of the claim that would entitle the plaintiff to
      relief.” We review the trial court’s legal conclusions regarding the
      adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(internal citations omitted).

                                 IV. Litigation Privilege

       Claimant contends that the Commission erred by determining that the Emails were
protected from a defamation claim by the litigation privilege. The State contends that the
Commission properly found that the litigation privilege applied because the Emails were
sent during the course of a judicial proceeding and were relevant to that proceeding.
Upon careful review of the record and applicable authorities, we conclude that the
Commission properly found that the Emails were absolutely protected by the litigation
privilege.

      As our Supreme Court has explained concerning defamation claims generally:

              To establish a prima facie case of defamation in Tennessee, the
      plaintiff must establish that: 1) a party published a statement; 2) with
      knowledge that the statement is false and defaming to the other; or 3) with
      reckless disregard for the truth of the statement or with negligence in failing
      to ascertain the truth of the statement. See Restatement (Second) of Torts §
      580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978).
      “Publication” is a term of art meaning the communication of defamatory
      matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co.,
      876 S.W.2d 818, 821 (Tenn. 1994).

                                            7
Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571-72 (Tenn. 1999).

        However, “[t]here are two types of privileges that can be raised as a defense in a
defamation case, absolute and qualified.” Simpson Strong-Tie Co., Inc. v. Stewart, Estes
& Donnell, 232 S.W.3d 18, 22 (Tenn. 2007). The litigation privilege at issue here is
absolute, meaning that it is “in effect, a complete immunity” and “is not defeated by the
defendant’s malice, ill-will, or improper purpose in publishing the defamatory
communication.” Id. (contrasting the litigation privilege with a qualified or conditional
privilege, which “may be defeated if the defamatory publication was made with malice,
ill-will, or for an improper purpose”) (footnote omitted).

       Our Supreme Court recently described the rationale for the development of
privileges providing defenses to defamation as follows in relevant part:

             This appeal demonstrates the tension that exists between two
      competing social commodities: reputation and information. Protecting the
      first commodity are defamation lawsuits, which enable aggrieved
      individuals to seek redress from false statements of fact that impugn their
      reputations. In the 1966 case Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S. Ct.
      669, 15 L. Ed. 2d 597 (1966) (Stewart, J., concurring), former United States
      Supreme Court Justice Potter Stewart emphasized the importance of
      protecting individuals from reputational harm, noting that: “The right of a
      man to the protection of his own reputation from unjustified invasion and
      wrongful hurt reflects no more than our basic concept of the essential
      dignity and worth of every human being—a concept at the root of any
      decent system of ordered liberty.” The danger posed by defamation
      lawsuits is that, if unrestrained, these lawsuits may obstruct access to the
      second commodity, information. For this reason, courts have developed a
      variety of privileges that provide defenses to defamation claims even when
      the accused actually defamed the accuser. See generally Restatement
      (Second) of Torts §§ 583-612 (1977).

Funk v. Scripps Media, Inc., 570 S.W.3d 205, 211 (Tenn. 2019) (proceeding to analyze
application of the fair report privilege as a qualified privilege).

       In this case, the Commission particularly relied on our Supreme Court’s decision
in Jones v. Trice, 360 S.W.2d 48 (Tenn. 1962), and this Court’s decision in Issa v.
Benson, 420 S.W.3d 23 (Tenn. Ct. App. 2013), in finding that the litigation privilege
applied. In Issa, this Court quoted with approval the following summary of the litigation
privilege in Tennessee as provided in Jones and its progeny:

                                            8
             This state further recognizes that “statements made in the course of
      judicial proceedings which are relevant and pertinent to the issues are
      absolutely privileged and therefore cannot be used as a basis for a libel
      action for damages.” Jones, [360 S.W.2d at 50]; see also Myers v.
      Pickering Firm, Inc., 959 S.W.2d 152, 159 (Tenn. Ct. App. 1997). This is
      true even if the statements are “known to be false or even malicious.”
      Jones, 360 S.W.2d at 50 (citing Hayslip v. Wellford [195 Tenn. 621], 263
      S.W.2d 136 (Tenn. 1953)). The policy underlying this rule is

             that access to the judicial process, freedom to institute an
             action, or defend, or participate therein without fear of the
             burden of being sued for defamation is so vital and necessary
             to the integrity of our judicial system that it must be made
             paramount to the right of an individual to a legal remedy
             where he [or she] has been wronged thereby.

      Jones, 360 S.W.2d at 51. Myers also expressly stands for the proposition
      that “communications preliminary to proposed or pending litigation” are
      absolutely privileged. Myers, 959 S.W.[2d] at 161 (quoting Restatement of
      Torts § 587).

Issa, 420 S.W.3d at 28-29 (quoting Phillips v. Woods, No. E2007-00697-COA-R3-CV,
2008 WL 836161, at *7-8 (Tenn. Ct. App. Mar. 31, 2008)). See Jones, 360 S.W.2d at 52
(“[A] statement by a judge, witness, counsel, or party, to be absolutely privileged, must
meet two conditions, viz: (1) It must be in the course of a judicial proceeding, and (2) it
must be pertinent or relevant to the issue involved in said judicial proceeding.”).

      In this action, the Commission specifically found as follows in pertinent part:

      The Commission finds and concludes that the litigation privilege applies to
      [the Emails]. Giving careful consideration to the “motion to dismiss”
      standard, the Commission, therefore respectfully concludes that, based
      upon the litigation privilege, as relates to [the Emails], the Claimant can
      prove no set of facts in support of the claim that would entitle Claimant to
      relief as against the [State] based upon these communications, and that the
      Second Amended Notice of Claim fails to state a cause of action upon
      which relief can be granted.

             In this claim, the [E]mails related to and were relevant and pertinent
      to the federal litigation, namely discovery. The discovery process is an
      integral part of our judicial system and the administration of justice is
                                            9
dependent upon, among other things, the discovery process working
smoothly, safely, and efficiently. Certainly, in the opinion of this
Commissioner, the discovery process, including matters preliminary to it
(for instance, logistical decisions and arrangements, including those
potentially related to safety concerns) are so involved in the judicial process
such that the litigation privilege should and does clearly apply to
“discovery” matters or related issues or concerns, whether ultimately those
issues or concerns are determined to be well-founded or not. In the opinion
of the undersigned, this concept would apply to, as well, the arranging for
and preparation for depositions and any communications relating thereto.
Discovery and depositions are generally and specifically addressed in the
Federal Rules of Civil Procedure and the Tennessee Rules of Civil
Procedure, as well as being addressed in various iterations of local rules of
court. The courts have ultimate control over discovery. Greg Ruth was
subpoenaed as a witness. The [E]mails complained of and alleged to be
defamatory related directly to “our discovery efforts in this matter.” They
related to logistics in regard to upcoming depositions. They related to
concerns of safety in upcoming depositions, whether those concerns were
ultimately determined to be well-founded or not. The [initial] email stated
that the depositions “will be held at a secure location with metal detectors
and officers in attendance.” The [E]mails were directed by [the State’s]
counsel to other counsel in the federal litigation.

        Using the Jones standard, the Commission concludes that the
communications complained of, [the Emails], are clearly not “so palpably
irrelevant to the subject matter of the controversy that no reasonable man
can doubt its irrelevancy and impropriety.” Jones, [360 S.W.2d at 54],
[quoting] 33 Am. Jur. Page 146, Section 150. The [E]mails are related to
the litigation and to the portion of the litigation concerning discovery and
depositions.

       Giving careful consideration to the applicable legal authorities,
especially to the Jones case, the undersigned concludes that this is exactly
the type of situation to which Jones is applicable. The policy reasons
espoused in Jones and its progeny support the proposition that counsel
should be able to communicate openly, frankly, and even aggressively with
each other without fear of being sued. The communications in this claim
fall within the parameters of the policy which has been consistently
articulated by the courts of this State.



                                      10
(Internal citations to record and footnote omitted.) We agree with the Commission on
this issue.

       The first condition that must be met for the statements within the Emails to be
absolutely privileged is that they must have been made “in the course of a judicial
proceeding.” See Jones, 360 S.W.2d at 52. While acknowledging that the Emails were
“somewhat related to the overarching legal proceeding,” Claimant asserts that the
statements in the Emails were not made as part of a judicial proceeding because they
“were not made during the course of a trial, hearing, or the deposition itself.” We find
this position unavailing.

       As noted in Issa, this Court previously has found that “Myers also expressly stands
for the proposition that ‘communications preliminary to proposed or pending litigation’
are absolutely privileged.” Issa, 420 S.W.3d at 29 (quoting Phillips v. Woods, No.
E2007-00697-COA-R3-CV, 2008 WL 836161, at *7-8 (Tenn. Ct. App. Mar. 31, 2008)
(in turn quoting Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 161 (Tenn. Ct. App.
1997). In Myers v. Pickering Firm, Inc., this Court held that the defendant firm’s report,
which had been prepared as a consultant’s review of the plaintiff architectural firm’s
projects, was protected by the litigation privilege because the report was “an assimilation
of the information compiled by various representatives of [the defendant firm] in their
role as expert witnesses in the chancery court litigation and in anticipation of their
upcoming testimony in that proceeding.” 959 S.W.2d at 160-61. Consequently, although
the consultant’s report in Myers, which had been commissioned by the projects’ owner
approximately one month after the owner filed suit against the architectural firm, had not
been compiled during a trial, hearing, or deposition, the fact that the report was produced
in preparation for upcoming litigation meant that it had been prepared in the course of a
judicial proceeding and thereby satisfied the first condition to bring it under the
protection of the litigation privilege. See id.

       In Issa, this Court determined that the litigation privilege applied to protect an oral
statement made by the defendant, a City of Chattanooga councilman, in response to a
warning that the limited liability corporation, in which the plaintiff was a shareholder,
would sue the city and the city council. Issa, 420 S.W.3d at 29. (“[The defendant’s]
statement was a communication preliminary to proposed litigation, and as such fell
within the litigation privilege.”). As a point of contrast, this Court determined in Phillips
v. Woods, No. E2007-00697-COA-R3-CV, 2008 WL 836161, at *10 (Tenn. Ct. App.
Mar. 31, 2008), that the filing of a deed “clearly made with the hope that no judicial
proceeding would occur” “was not a part of a judicial proceeding so as to clothe the
statements made in the deed with absolute immunity from suit for libel of title.”



                                             11
        In the case at bar, when the Emails were sent by Ms. Jordan and Ms. Lyford to
Claimant’s counsel, the federal litigation had already been initiated by Claimant, and the
litigation had entered the discovery phase with a deposition scheduled for the next day.
Claimant is essentially positing that discovery related to litigation occurs outside of a
judicial proceeding. We disagree. See, e.g., B & B Enters. of Wilson Cty. v. City of
Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010) (“[T]he judicial proceedings began when
[the petitioner] filed its petition for common-law writ of certiorari.”); Ballard v. Herzke,
924 S.W.2d 652, 657 (Tenn. 1996) (analyzing the intervening plaintiffs’ request to seek
modification of a protective order covering discovery responses as a request for access to
“judicial proceedings or records”); Swift v. Campbell, 159 S.W.3d 565, 575 (Tenn. Ct.
App. 2004) (addressing, inter alia, “the question of whether the courts of this state should
allow the public records statute to be used to circumvent the rules of discovery governing
civil and criminal judicial proceedings”); Caldwell v. Baptist Mem’l Hosp., No. W2015-
01076-COA-R10-CV, 2016 WL 3226431, at *2 (Tenn. Ct. App. June 3, 2016) (noting
that “Tennessee Code Annotated § 29-26-121(f) allows for the disclosure of protected
health care information in ex parte interviews conducted during judicial proceedings”).

       In support of his argument that the Emails were not sent during the course of a
judicial proceeding, Claimant relies on this Court’s decision in Moore v. Bailey, 628
S.W.2d 431 (Tenn. Ct. App. 1981). In Moore, this Court affirmed a jury verdict in favor
of the plaintiff, an environmentalist with the Tennessee Department of Public Health, on
his defamation claim concerning statements the defendant had made when he contacted
the state inspector general with allegations against the plaintiff and subsequently
conveyed accusations of misconduct against the plaintiff to investigators. Moore, 628
S.W.2d at 432. The Moore Court determined that the litigation privilege did not apply to
protect the statements at issue because those statements were made during an
“investigatory situation[] . . . so very preliminary in nature.” Id. at 436. We find the
factual situation and procedural posture in Moore to be highly factually distinguishable
from this case because the Emails at issue here were sent during the discovery phase of
the federal litigation already initiated by Claimant. We agree with the Commission’s
reasoning that in this case, “the arranging for and preparation for depositions and any
communications relating thereto” were part of the discovery process and were therefore
made in the course of a judicial proceeding, specifically the federal litigation related to
this case.

         The second and final condition that must be met for the statements within the
Emails to be absolutely privileged is that they must be “pertinent or relevant to the issue
involved” in the judicial proceeding. See Jones, 360 S.W.2d at 52. In Jones, our
Supreme Court further explained the definition of pertinence or relevance in the context
of the litigation privilege as follows:

                                            12
        As to the degree of relevancy or pertinency necessary to make alleged
        defamatory matter privileged, the courts favor a liberal rule. The matter to
        which the privilege does not extend must be so palpably irrelevant to the
        subject matter of the controversy that no reasonable man can doubt its
        irrelevancy and impropriety.

Jones, 360 S.W.2d at 53-54 (quoting 33 Am. Jur. 146, § 150).

       Acknowledging that Attorney Lyford’s email message may be “more relevant” to
depositions in the federal litigation because it provided “the potential new locations for
the depositions,” Claimant asserts that Attorney Jordan’s email message only “vaguely
reference[d] the fact that discovery is ongoing” and that the first two paragraphs of the
message were devoted to “irrelevant” accusations against Claimant. However, as the
Commission noted, Mr. Ruth had been subpoenaed as a witness in the federal litigation.
The State’s counsel’s statements about the fire that damaged Mr. Ruth’s sons’ business
were related to concerns about possible interference with Mr. Ruth as a subpoenaed
witness.

        Upon careful review of the statements in the Emails, we agree with the
Commission that in addition to addressing the logistics of upcoming depositions, the
statements were “related to concerns of safety in upcoming depositions, whether those
concerns were ultimately determined to be well-founded or not.” Given our Supreme
Court’s “liberal application of the absolute privilege accorded to publication of
defamatory matters in connection with judicial proceedings,” Myers, 959 S.W.2d at 161
(citing Jones, 360 S.W.2d at 48), the Commission properly determined that the Emails
were not “so palpably irrelevant to the subject matter of the controversy that no
reasonable man can doubt [their] irrelevancy and impropriety,” see Jones, 360 S.W.2d at
54 (quoting 33 Am. Jur. 146 § 150).5 The Commission did not err in finding that the
litigation privilege was applicable to protect the Emails from this defamation claim.

                           V. Alleged Defamatory Nature of the Emails

        Although the Commission found that the Emails were absolutely protected by the
litigation privilege and stated in its final order that it was “dismissing the claim on the

5
  We further determine Claimant’s partial reliance on a North Carolina federal district court memorandum
opinion, Castro v. Goggins, No. 1:16CV10, 2016 WL 7217282 (M.D.N.C. Dec. 12, 2010), to be
unavailing. Although our review of Castro reveals that the district court’s application of Tennessee
defamation law as to relevance to the judicial proceeding is distinguishable from application of the law in
the instant action, we note also that a federal district court case is but persuasive, not controlling, authority
for Tennessee state appellate courts. See Leggett v. Duke Energy Corp., 308 S.W.3d 843, 871 (Tenn.
2010).
                                                        13
basis of litigation privilege,” the Commission proceeded to address, “for the purposes of
completeness,” whether the Emails were defamatory. The Commission ultimately found
that the messages were “not capable of defamatory meaning.” On appeal, Claimant
asserts that the Commission erred in so finding. Inasmuch as the litigation privilege is
absolute, see Simpson Strong-Tie, 232 S.W.3d at 22, and we have determined that the
litigation privilege applies to protect the Emails, we further determine that the issue of
whether the messages were defamatory in nature is pretermitted as moot.

                                     VI. Conclusion

       For the reasons stated above, we affirm the Commission’s judgment dismissing
Claimant’s defamation action. This case is remanded to the Commission, pursuant to
applicable law, for enforcement of the Commission’s judgment and collection of costs
assessed below. The costs on appeal are assessed against the appellant, Rodney Kilgore.



                                                _________________________________
                                                THOMAS R. FRIERSON, II, JUDGE




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