Three separate districts have taken three different approaches to the applicability of the litigation privilege to constitutional invasion of privacy claims. The first district ruled that the privilege cannot be applied without balancing the interests served by the litigation privilege against the constitutional right to privacy. The fourth district ruled that the interests should be balanced to ascertain whether the alleged invasion of privacy involves communicative or non-communicative conduct. The third district held that the litigation privilege is absolute, even in the context of a constitutional invasion of privacy claim. The Third District Court of Appeal held that the litigation privilege is absolute as applied to parties to a lawsuit.
Plaintiff Annette Wise was a party to a dissolution action. She instructed two clerks at her pharmacy, Payless not to divulge her medical information to Mr. Wise. The next day, another clerk gave Mr. Wise a list of all prescription drugs plaintiff had used in the last year because Mr. Wise requested the information to prepare his taxes.
Mr. Wise then used his wife’s pharmaceutical information in their divorce proceedings. He sought custody of their children on grounds that his wife was a drug-abuser and an unfit mother. He also provided the information to the DMV, which investigated plaintiff to determine whether she was fit to operate a car.
In a separate suit against Payless for disclosing plaintiff’s confidential medical information, the pharmacy argued that since the husband’s use of the information was protected by the litigation privilege, Payless was likewise protected, as a matter of public policy.
The court agreed that Mr. Wise’s conduct was absolutely privileged. In a footnote, the court held that Cutter was “unconvincing” because it predates Silberg and “weighs” plaintiff’s constitutional right to privacy against the litigation privilege, whereas Silberg refers to the litigation privilege as absolute.
The court held, however, that Payless’ conduct was not privileged. The policy of insuring free access to the courts, encouraging zealous advocacy, and giving finality to judgments is not served by immunizing non-participants and non-litigants whose wrongful conduct is not related to the judicial process.
Comment: Whereas Imai and Randall provide for a balancing of interests, Wise does not, on the ground that the litigation privilege is absolute. Consequently, there is a split between the First, Fourth and Third District Courts of Appeal.