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Can you use deposition testimony from a Virginia civil suit in a defamation case?

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russharv63

Junior Member
What is the name of your state (only U.S. law)? Virginia
My wife has just settled her American with disabilities act suit in a Virginia federal court against a fast food restaurant. The suit did not go to trial. She was a employee at the restaurant. The defendant, who is the owner, and his four employee's all said enough at the deposition's to file a defamation suit in a Virginia circuit court. Can you use their deposition testimony in a defamation suit or is it deemed privileged and can not be used in a civil suit in a Virginia circuit court?
 


Taxing Matters

Overtaxed Member
What is the name of your state (only U.S. law)? Virginia
My wife has just settled her American with disabilities act suit in a Virginia federal court against a fast food restaurant. The suit did not go to trial. She was a employee at the restaurant. The defendant, who is the owner, and his four employee's all said enough at the deposition's to file a defamation suit in a Virginia circuit court. Can you use their deposition testimony in a defamation suit or is it deemed privileged and can not be used in a civil suit in a Virginia circuit court?
The terms of the settlement might itself preclude litigating the defamation case. If your wife is claiming that what was said in the deposition proceeding itself was defamation she will be barred from that claim by the absolute privilege accorded to any testimony given in a judicial proceeding in Virginia.

The trial court, in deciding in favor of the defendants below, ruled that “discovery deposition procedures undertaken within the purview of the Rules of Court of the Supreme Court of Virginia constitute a judicial proceeding.” The court further found that “testimony given therein is absolutely privileged if material to the subject matter involved in the action to which the discovery procedure is a part.” He thus found that Hogan and Calicott, as well as McKelvie, were immune from liability to the plaintiff for the republication of McKelvie's 1975 statements which occurred during the 1976 deposition hearing.

On appeal, plaintiff does not dispute that Hogan and Calicott were protected from civil liability, as the result of their deposition testimony, by the absolute privilege which attaches to the relevant testimony of a witness during a judicial proceeding. See Elder v. Holland, 208 Va. 15, 21, 155 S.E.2d 369, 374 (1967); Penick v. Ratcliffe, 149 Va. 618, 140 S.E. 664 (1927).​

Watt v. McKelvie, 219 Va. 645, 648, 248 S.E.2d 826, 828 (1978). The court went on to hold that even republication of a deposition within a later separate litigation matter was protected by the privilege.
 

quincy

Senior Member
What is the name of your state (only U.S. law)? Virginia
My wife has just settled her American with disabilities act suit in a Virginia federal court against a fast food restaurant. The suit did not go to trial. She was a employee at the restaurant. The defendant, who is the owner, and his four employee's all said enough at the deposition's to file a defamation suit in a Virginia circuit court. Can you use their deposition testimony in a defamation suit or is it deemed privileged and can not be used in a civil suit in a Virginia circuit court?
An absolute privilege (or immunity) covers defamatory statements made in depositions. When lies are told during sworn testimony, however, perjury potentially could be charged.

Were the (defamatory) statements that were made by owner and the four employees in their depositions limited to what was said in the depositions or during the course of or in relation to the ADA judicial proceedings? Or have the same (defamatory) statements been repeated to others elsewhere?

Did the settlement agreement include a provision that states something like "any and all additional claims related to or arising from the ADA action are forever barred?"

Defamatory statements made in court are immune from suit but the same defamatory statements communicated elsewhere potentially could support a defamation action. More facts are necessary to determine if there is any claim possible or worth pursuing.
 

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