What Is the Anticipation of Litigation Privilege in California?

What Is the Anticipation

If you’re involved in or anticipating litigation in California, you may be wondering, “What is the anticipation of litigation privilege in California?” This rule of law is used to protect and shield against liability for certain types of communication and preparation made anticipating litigation. Several rules and regulations that surround this state civil code, as well as adherence to these guidelines, can provide serious protection.

The anticipation of litigation privilege essentially allows litigants or other individuals authorized by law to pursue investigations, litigations, and all related happenings without legal repercussions as long as it is within the scope of their applicable case and intended to promote the effective administration of justice. This privilege should be understood and employed appropriately and knowingly, as it is stated in the California Civil Code section 47(b).

This privilege is unique, as it provides absolute immunity from liability for conduct and communication made in connection to a judicial proceeding. Absolute immunity is a legal doctrine that provides individuals with complete protection from civil liability, regardless of the circumstances or merits of claims against them. This offers parties a complete defense against any legal action against them if they are within the anticipation of litigation privilege guidelines.

The main goal of this litigation-related privilege is to offer related parties full access to the case without fear of future legal repercussions. Therefore, it encourages complete and truthful testimony. This promotes open communication and vigorous advocacy, with subsequent goals of quicker proceedings and final judgments.

The Difference Between Anticipation of Litigation Privilege and the Litigation Privilege

While anticipation of litigation privilege and the litigation privilege are very similar, there are certain distinctions. The anticipation of litigation privilege applies to conduct and communication that was made in anticipation of litigation before formal proceedings begin. This encourages a full and free investigation to gather evidence and commence pre-litigation negotiations without fear of how this may impact them in the future.

The litigation privilege, alternatively, applies to the conduct and communications that are made during the course of litigation after formal proceedings have begun. This provides immunity from civil liability for certain actions and communications during proceedings, like statements in pleadings, briefs, affidavits, and other court filings.

These two privileges serve similar purposes but operate at different stages in the litigation process and have slightly altered scopes and applications. An Orange County business litigation lawyer can explain more.

Who Can Invoke the Litigation Privilege in California?

In California, several parties and participants involved in judicial proceedings can invoke the litigation privilege to protect their conduct and communication made in relation to litigation, such as the following:

  • Parties Involved in Litigation: This can include plaintiffs, defendants, and other related parties involved in legal disputes. The privilege can protect communication and conduct in pleadings, affidavits, briefs, and other documents filed with the court. It can also include statements in court hearings, depositions, and other formal proceedings.
  • Representing Attorneys: Attorneys who are representing parties in litigation can assert this privilege on behalf of their clients.
  • Witnesses: Witnesses can call upon this privilege to offer protection of their testimony and other communication made through litigation.
  • Experts and Consultants: Experts, consultants, and other professionals called upon to assist in litigation can invoke this right to protect their work and communication while preparing for or during litigation.
  • Court Officials and Personnel: Court judges, officials, reporters, and other personnel involved in the administration of justice can also invoke this privilege when engaging in their official duties connected to judicial proceedings.

The goal of this privilege is to encourage and protect the effective administration of justice by encouraging open communication and candor among all parties involved in litigation. It hopes to protect the integrity of the legal process and encourage involved parties to participate without fear of legal consequences.


Q: What Is the Anticipation of Litigation Privilege?

A: The anticipation of litigation privilege protects individuals preparing for litigation from the consequence that their preparations will be used against them in court proceedings or other legal settings. There are settings where this privilege will not be upheld, depending on the specific circumstances of each case, such as the crime-fraud exception.

Q: What Is the Litigation Privilege Statute in California?

A: The litigation privilege statute in California is in the state civil code, section 47b. It is a common law doctrine that offers immunity from any civil liability regarding specific communications and conduct made in preparation or connection with judicial proceedings.

This privilege hopes to offer an incentive for parties involved in litigation to freely participate in legal proceedings without fear. It encourages open communication and promotes fairness and equity through the freedom its protection offers.

Q: What Isn’t Covered by the Litigation Privilege?

A: Communication and conduct made outside of judicial proceedings, specific criminal conduct, communication made with improper motives, and more are not covered by the litigation privilege. It is important to review specific jurisdiction rules, as they vary from jurisdiction to jurisdiction. This privilege can often be misunderstood or misconstrued, and it is vital to remember there are limitations and exceptions to its use.

Q: What Is the Litigation Privilege Defense?

A: The litigation privilege defense invokes the litigation privilege as a legal defense against claims of slander, defamation, libel, and other civil actions that resulted from communications and conduct made in connection with judicial proceedings. This is the use of this common law doctrine: if a party’s actions were viewed as unlawful and are legally pursued to account for their actions, they claim immunity from civil liability due to the protection of the litigation privilege.

Contact a Local Orange County Business Litigation Lawyer Today

At Scheer Law Group, LLP, our attorneys have extensive experience in business litigation, and we are prepared to use the necessary means to protect your business. If necessary, we can use the litigation privilege defense to defend you from civil actions. We employ vigorous, tireless efforts to support your goals and those of your company. Contact our office today and learn how we can assist you in your legal matter.

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