United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE
Judge Lincoln D. Almond filed a Report and Recommendation
(“R&R”) (ECF No. 83), in which he recommends
that the Court grant both Motions for Summary Judgment (ECF
Nos. 35, 41) filed by Defendants. Plaintiff Jason Boudreau
(“Plaintiff” or “Boudreau”) filed a
timely Objection to the R&R (“Objection”)
(ECF No. 86). After careful consideration, the Court ACCEPTS
the R&R and GRANTS Defendants' Motions for Summary
Steve Lussier, John Lussier, and Steve Sorel (collectively
“ATC Defendants”) filed a Motion for Summary
Judgment (ECF No. 35), arguing that res judicata bars
Boudreau's claim. In his Objection, Boudreau claims
“[t]he Magistrate erred . . . on the issue of res
judicata applying to the instant case.” (Obj. 21.)
Boudreau avers that every use of the intercepted
communications after the start of the 2013 litigation
“can be separate causes of action under the [Rhode
Island Wiretap Act (“RIWA”)] and the Federal
Wiretap Act.” (Id. at 13.) He further contends
that, because res judicata does not bar his claim, and no
exception to the RIWA applies, Defendants maintain liability.
(See id. at 21.) Moreover, he argues that Magistrate
Judge Almond “erred in finding the use and disclosure
was permitted under the RIWA” and in “fail[ing]
to acknowledge the plaintiff's privacy concerns.”
(Id. at 28, 31.)
arguments - each of which he set forth in his original
Response to the Motion for Summary Judgment (ECF No. 54) -
are no more persuasive at this stage. Nevertheless, the Court
undertakes a de novo review.
doctrine of res judicata requires three elements: “(1)
a final judgment on the merits in an earlier action; (2) an
identity of parties or privies in the two suits; and (3) an
identity of the cause of action in both the earlier and later
suits.” Aunyx Corp. v. Canon U.S.A., Inc., 978
F.2d 3, 6 (1st Cir. 1992). Here, there is both a final
judgment on the merits and an identity of parties. See
Boudreau v. Lussier, No. 13-388 S, 2015 WL 7720503, at
*1, *7 (D.R.I. Nov. 30, 2015). Judge Almond correctly noted
that the addition of new defendants does not vitiate res
judicata. See Manego v. Orleans Bd. of Trade, 598
F.Supp. 231, 235 (D. Mass. 1984), aff'd, 773
F.2d 1 (1st Cir. 1985), cert. denied, 475 U.S. 1084
the transactional test governs the third prong, which Judge
Almond properly applied. See Manego, 773 F.2d at 5.
The First Circuit has noted that “it necessarily
follows that a particular legal theory not pressed in the
original suit will nonetheless be precluded in the subsequent
one if it prescinds from the same set of operative
facts.” Kale v. Combined Ins., 924 F.2d 1161,
1166 (1st Cir. 1991). Indeed, the case at hand turns on the
same set of facts as its previous iteration: the alleged
interception which occurred in 2011. For all the other
reasons Judge Almond noted, these two suits are sufficiently
related that the former precludes the latter. Therefore, the
Court adopts Judge Almond's reasoning and grants the
Motion for Summary Judgment (ECF No. 35) as to the ATC
Defendants. II. The SHS Defendants.
Douglas Giron, Jessica Papazian-Ross, and Shectman Halperin
Savage, LLP (collectively “SHS Defendants”) filed
a Motion for Summary Judgment (ECF No. 41), arguing that the
litigation privilege bars Boudreau's claim. Boudreau
faults Magistrate Judge Almond for “holding that a
‘litigation privilege' provides blanket immunity to
the Defendants [sic] use and disclosure of intercepted
communications during judicial proceedings.” (Obj.
1-2.) Specifically, he contends that Magistrate Judge Almond
“did not cite any Rhode Island case law that held that
a ‘litigation privilege' trumps the . . . RIWA . .
. nor . . . any case law from any jurisdiction that held that
a ‘litigation privilege' trumped either a [s]tate
wiretap [a]ct or the Federal Wiretap Act.”
(Id. at 2.)
Plaintiff is correct that Magistrate Judge Almond did not
cite any Rhode Island case that held that the litigation
privilege trumps the RIWA, that's because there is no
such case. As a matter of first impression in Rhode Island,
the Court looks to other jurisdictions to inform its holding.
advances several cases to support his argument, none of which
proves persuasive. He relies primarily on Babb v.
Eagleton, 616 F.Supp.2d 1195 (N.D. Okla. 2007), and
Pyankovska v. Abid, No. 2:16-CV-2942 JCM (PAL), 2017
WL 5505037 (D. Nev. Nov. 16, 2017). These cases involved
violations of Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. §§ 2510-2520,
otherwise known as the Federal Wiretap Act, and both courts
held that the litigation privilege did not trump the Act. The
courts in both cases, however, went to great lengths to
emphasize that the litigation privilege has no bearing on
federal claims. See Pyankovska, 2017 WL 5505037, at
*4; Babb, 616 F.Supp.2d at 1207. Those courts, in
fact, distinguished Title III liability from state wiretap
law liability. Pyankovska, 2017 WL 5505037, at *4
(“The court [in Babb] based its holding [in
part] on . . . cases applying the litigation privilege
applied it to state law claims, not federal claims . . .
.”); Babb, 616 F.Supp.2d at 1207
(“[C]ourts applied the litigation privilege as a
defense to claims arising solely under state
law.” (emphasis added)). Because the instant case
involves a violation of the RIWA, these cases are inapposite.
Plaintiff's reliance on Nix v. O'Malley, 160
F.3d 343 (6th Cir. 1998), is misplaced. While Nix
deals with violations of Title III and the relevant Ohio
wiretap statute, that court was partially persuaded because
the attorney disclosed information unrelated to his or her
client's defense. See id. at 352-53. Here, and
in the 2013 litigation, the action hinged on the ATC
Defendants' alleged unlawful interception and disclosure
of the screenshots. Therefore, the screenshots themselves
certainly related to the proceedings, and Nix is not
jurisdictions also inform this Court's analysis. In
Rich v. Rich, the Superior Court of Massachusetts
held that “the absolute privilege applies to . . . the
Wiretap Act.” No. BRCV200701538, 2011 WL 3672059, at *8
(Mass. Super. Ct. July 8, 2011). That court described the
Massachusetts litigation privilege as follows: “written
or oral communications made by a party, witness, or attorney
prior to, in the institution of, or during and as part of a
judicial proceeding involving said party, witness, or
attorney are absolutely privileged even if uttered
maliciously or in bad faith.” Id. Rhode
Island's litigation privilege is similarly sweeping.
See Kissell v. Dunn, 793 F.Supp. 389, 392 (D.R.I.
1992) (“[L]ibelous matter in pleadings filed in
judicial proceedings are absolutely privileged where the
statements are material, pertinent or relevant to the issues
thereon.” (quoting Vieira v. Meredith, 123
A.2d 743, 744 (R.I. 1956))); Francis v. Gallo, 59
A.3d 69, 71 (R.I. 2013) (“[S]tatements made in judicial
proceedings are privileged, and thus cannot form the basis
for a defamation claim.” (quoting W. Mass. Blasting
Corp. v. Metro. Prop. & Cas. Ins., 783 A.2d 398, 403
n.3 (R.I. 2001))).
the policy reasons that underscore the Superior Court of
Massachusetts' reasoning also persuade this Court.
See Rich, 2011 WL 3672059, at *8 (“A privilege
which protected an individual from liability for defamation
would be of little value if the individual were subject to
liability under a different theory of tort.” (quoting
Correllas v. Viveiros, 572 N.E.2d 7, 13 (Mass.
1991))). Indeed, an attorney must be allowed “complete
freedom of expression and candor in communications in their
efforts to secure justice for their clients.” Mack
v. Wells Fargo Bank, N.A., 41 N.E.3d 323, 327 (Mass.
App. Ct. 2015) (quoting Sriberg v. Raymond, 345
N.E.2d 882, 883 (Mass. 1976) (quotation marks omitted).
According to the Restatement of Torts, Second, the absolute
privilege applicable in defamation cases applies “to
the publication of any matter that is an invasion of
privacy.” Restatement (Second) Torts § 652F
(1977). Therefore, the Court is satisfied that the litigation
privilege also applies in the context of the RIWA.
above reasons, and because Magistrate Judge Almond correctly
applied the litigation privilege,  this Court ACCEPTS the
R&R (ECF No. 83) and adopts its reasoning and
recommendations. Defendants' Motions for Summary Judgment
(ECF Nos. 35, 41) are GRANTED. IT IS SO ORDERED.
Lincoln D. Almond, United States Magistrate Judge
before the Court are Defendants' Motions for Summary
Judgment filed pursuant to Fed.R.Civ.P. 56. (ECF Doc. Nos. 35
and 41). Plaintiff Jason Boudreau filed Objections. (ECF Doc.
Nos. 54 and 62). This matter has been referred to me for
preliminary review, findings and recommended disposition. 28
U.S.C. § 636(b)(1)(B); LR Cv 72(a). After reviewing the
Memoranda submitted and ...