Introduction
Litigation privilege in Florida has traditionally afforded broad protection to parties, lawyers, and witnesses engaged in judicial proceedings. It exists to facilitate the unrestrained exchange of information within litigation by shielding participants from defamation claims arising out of their statements. Yet this doctrine is not boundless. In Grippa v. Rubin, 23-11714, 2025 WL 1459550 (11th Cir. Apr. 3, 2025), the Eleventh Circuit clarified the contours of this privilege, particularly where allegedly defamatory statements are disseminated outside the four corners of a legal action. This case provides a timely opportunity to reevaluate the scope and limits of both absolute and qualified litigation privilege in Florida, especially in light of evolving procedural norms and the Florida Supreme Court’s recent emphasis on judicial efficiency and proportionality in litigation conduct.
The Historical Framework of Florida’s Litigation Privilege
Florida’s litigation privilege doctrine finds its origin in common law protections of judicial actors. Over the last several decades, Florida courts have defined two categories of privilege—absolute and qualified—to shield statements made in or about judicial proceedings.
In Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co., 639 So. 2d 606, 608 (Fla. 1994), the Florida Supreme Court held that statements made during judicial proceedings were absolutely immune from defamation actions so long as the act has some relation to the proceeding. This immunity was justified on public policy grounds: to ensure full and frank communications during litigation, even at the cost of potentially defamatory remarks.
However, Florida courts have recognized limits. In an earlier case, Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla. 1992), the Court distinguished between absolute privilege applicable to in-court statements and qualified privilege, which applies to out-of-court communications made under a duty and without malice. Notably, the Court held that even where a qualified privilege might apply, a showing of express malice would defeat it. Thus, the issue of express malice was arguably left partially open by the holding in Levin as to whether express malice would be sufficient to overcome the “some relationship to the proceeding” bar, even though the case suggested that only other remedies remained open for pursuit.
The limits of privilege became more pronounced in DelMonico v. Traynor, 116 So. 3d 1205, 1219 (Fla. 2013), where the Florida Supreme Court refused to extend absolute privilege to pre-suit interviews conducted by a lawyer with non-party witnesses. The Court observed that pre-suit, out-of-court, defamatory statements to a potential witness are not absolutely privileged, underscoring a concern that such immunity could be abused to inflict reputational harm under the guise of litigation.
Likewise, in Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323, 1326 (Fla. 4th DCA 1983), the court extended privilege only to statements necessarily preliminary to judicial proceedings, but not to communications made to third parties unconnected to the suit.
The Facts and Procedural Posture in Grippa v. Rubin
The Grippa dispute arose from a defamation claim filed by Kimberly Grippa against Ronald Rubin, who had previously sued state officials and named Grippa as a participant in an alleged criminal enterprise within the Florida government. Rubin’s attorney mailed letters, including copies of the complaint, to various state officials. Grippa alleged these letters contained defamatory accusations beyond those stated in the complaint.
Rubin moved for summary judgment, invoking both Florida’s absolute and qualified litigation privileges. The district court denied his motion in full. On interlocutory appeal, the Eleventh Circuit addressed whether it had jurisdiction to consider the denial of litigation privilege and, if so, whether the privilege applied. The court held that the denial of absolute litigation privilege was immediately appealable under the collateral order doctrine but dismissed Rubin’s claims involving qualified privilege and vicarious liability for lack of jurisdiction. Ultimately, the appellate court affirmed the district court’s denial of absolute privilege, concluding that the letters went beyond the bounds of judicial advocacy. Grippa, 2025 WL 1459550, at *1–2.
Eleventh Circuit Analysis and Doctrinal Contribution
The Eleventh Circuit held that Florida’s absolute litigation privilege does not extend to extrajudicial communications sent to third parties who are not directly involved in the litigation. The court found the mailed letters were not integral to the litigation process but were distributed in a manner inconsistent with the protective scope of the privilege. These letters contained commentary and language beyond the allegations in the complaint and were sent to state officials in a way that appeared designed to prompt external action.
In doing so, the court reinforced the DelMonico distinction between in-proceeding conduct and pre- or post-litigation communications to outsiders. Importantly, the decision reaffirmed that absolute privilege must be narrowly applied to protect only those statements that are functionally necessary to the litigation process. The court declined to address the issue of qualified privilege and vicarious liability, holding that such rulings were not immediately appealable. Grippa, 2025 WL 1459550, at *6.
Florida Litigation Privilege: Absolute vs. Qualified
Absolute privilege in Florida applies to statements made in judicial proceedings and to those necessary and relevant to the case. The classic example is a lawyer’s statement in pleadings or during a deposition. The policy underpinning the privilege is to protect access to the courts and the candid pursuit of claims or defenses. Levin, 639 So. 2d at 608.
Qualified privilege, by contrast, applies to statements made to interested parties outside the litigation, such as investigators, regulatory officials, or journalists—if made without express malice. Fridovich, 598 So. 2d at 69. The privilege is forfeited if the plaintiff proves express malice, defined as ill will or intent to harm unrelated to the litigation’s legitimate objectives.
The Grippa ruling narrows the application of the absolute privilege by requiring a close nexus between the statement and the litigation purpose. It also implicitly warns litigants and counsel that strategic repackaging of pleadings into advocacy tools sent to uninvolved third parties will not enjoy automatic immunity.
Intersection With Recent Civil Rule Reforms
Florida’s civil litigation reforms, effective January 1, 2025, under Rules 1.200 and 1.280, emphasize early judicial control, discovery proportionality, and streamlined litigation. These reforms are consistent with the cautionary tone of Grippa. The Florida Supreme Court, in its commentary to the 2025 amendments, noted that it intended for Rule 1.280 to be construed and applied in accordance with the federal proportionality standard. In re Amends. to Fla. R. Civ. P., No. SC2023-0962, slip op. at 2–3 (Fla. Dec. 5, 2024).
This cultural shift away from litigation-as-warfare toward focused, ethical, and proportionate conduct further undercuts attempts to leverage pleadings for collateral reputational or political objectives.
Ethical Considerations for Counsel
Rule 4-4.1 of the Florida Rules of Professional Conduct prohibits attorneys from making false statements to third parties. Rule 4-3.3 mandates candor toward the tribunal. While privilege may immunize statements from defamation claims, it does not excuse ethical breaches. A lawyer who uses privileged documents to strategically defame a party outside of litigation risks not only a defamation suit (absent immunity) but also disciplinary action.
Sending a complaint to third parties does not automatically cloak the letter in absolute privilege. Florida courts look at the purpose, recipient, and content of the statement. Editorializing or augmenting allegations can pierce the privilege veil. Always ask: Was this necessary to advance the litigation or simply to damage an opponent’s reputation? If it’s the latter, the privilege may not apply—and exposure grows.
Practice Point: When the Privilege Fails
Sending a complaint to third parties does not automatically cloak the letter in absolute privilege. Florida courts look at the purpose, recipient, and content of the statement. Editorializing or augmenting allegations can pierce the privilege veil. Always ask: Was this necessary to advance the litigation or simply to damage an opponent’s reputation? If it’s the latter, the privilege may not apply—and exposure grows.
Litigation Privilege in Florida and Federal Courts: Scope and Functional Limits
Florida courts recognize a broad absolute litigation privilege for statements made in connection with judicial proceedings, even if those statements are false or malicious. The doctrine protects participants in litigation—including parties, attorneys, and witnesses—when the allegedly defamatory statement is made during or in the course of a judicial proceeding and bears some relation to the proceeding. See DelMonico, 116 So. 3d at 1219.
This privilege is not limited to in-court utterances. It extends to pre-suit demand letters, presuit notices, and other out-of-court communications made in anticipation of litigation, provided they are closely related to the litigation and serve a legitimate litigation purpose. See Fridovich, 598 So. 2d at 66; Levin, 639 So. 2d at 608; Pledger, 432 So. 2d at 1326.
Federal Adoption of Florida’s Privilege
Federal courts sitting in diversity generally follow Florida’s articulation of the litigation privilege. The Eleventh Circuit and district courts within Florida have consistently held that Florida’s absolute privilege doctrine applies in defamation and tort claims arising from litigation-related speech. See, e.g., Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1274–75 (11th Cir. 2004); Klayman v. City Pages, 650 F. App’x 744, 749 (11th Cir. 2016); American Nat’l Title & Escrow of Fla., Inc. v. Guarantee Title & Trust Co., 810 F. Supp. 2d 958, 965 (S.D. Fla. 2011).
Functional Limits and Federal Nuance
While federal courts often honor the privilege as defined by state law, they may take a more functionally analytical approach, especially at early procedural stages (e.g., Rule 12(b)(6) motions or summary judgment). In such cases, the court may scrutinize the purpose and audience of the communication to determine whether the privilege should apply—particularly if the statement was republished to third parties or the public and lacks a direct relation to the litigation’s adjudicative function. See Mazurek v. Volusia Cty. Sch. Bd., 766 F. Supp. 2d 1243, 1253–54 (M.D. Fla. 2011); Hope v. BSI Fin. Servs., Inc., No. 20-61974, 2021 WL 2712312, at *8 (S.D. Fla. July 1, 2021); contrast with Sun Sentinel Co. v. Bonanni, 995 So. 2d 940, 942 (Fla. 4th DCA 2008).
Narrowing the Shield
Grippa v. Rubin marks a significant reaffirmation of the limits of litigation privilege in Florida. The Eleventh Circuit’s refusal to extend absolute immunity to extrajudicial letters accompanying a complaint underscores the principle that privilege exists to protect the integrity of the judicial process—not to facilitate reputational attacks under the veil of advocacy. In the context of Florida’s modernized procedural rules emphasizing proportionality, early disclosures, and active case management, this decision serves as both a doctrinal clarification and a strategic warning. Counsel would do well to reevaluate their litigation communications policies and ensure alignment with both ethical norms and procedural expectations.
