Redenburg v. Merritt, A-0110-20

Ah, condos. Without them, how would we have people outside of families living close enough together to fight?

The plaintiff in this case--a New Jersey lawyer--had a condo neighbor, King-Voisin, who complained to the municipality about the noise of his in-wall speakers, leading to the condominium association receiving a municipal violation. This lead to the condominium association, through its lawyer, Merritt--the defendant in this case--sending the plaintiff a cease and desist order demanding the plaintiff restore the wall.

So the parties resolved the issue like mature adults. Ha, ha! Nope. Plaintiff lawyered up and the parties were off to alternative dispute resolution. (To be fair to the condo association, once you've got a municipal violation, your back is pretty much against the wall.) In the course of that alternative dispute resolution, the parties retained an acoustical engineer as a joint expert to test the sound rating of the plaintiff's speaker system. 

And then Merritt wrote the expert, stating, "In speaking with the two parties, please do not copy/forward [King-Voisin] and [plaintiff] on the same email thread as they have criminal complaints filed against each other for harassment. We’d like to minimize the amount of direct contact between them to avoid a disruption." (Emphasis removed.) He copied the plaintiff's lawyer, but not the plaintiff, on that communication.

Deep foreboding voice: He was trying to avoid a disruption.

But there was no criminal complaint against the plaintiff! Presumably, she just hated his guts without filing anything with the government, like a normal, red-blooded American citizen! (The record is silent about whether he filed a complaint for harassment against her.) Oops! 

So the plaintiff, taking the moral high road, initiated this case, suing Merritt for libel. The trial court dismissed based on the litigation privilege. The plaintiff appealed.

This led to the Appellate Division affirming that communications to a joint expert in the course of alternative dispute resolution are subject to the litigation privilege, and hence not a basis for a libel complaint.