Is there a legal reason that organizations often refuse to comment on an issue citing &quot;ongoing litigation&quot;? In news articles, I often read that some organization refused to comment on an issue because it is the subject of &quot;ongoing litigation&quot;. This is also mentioned in many guides on public relations, for example this article, How to Control Your Message During a Media Interview, says: If there are legal reasons why you can’t respond, explain that you are unable to answer the question because it involves ongoing litigation or personal information about a patient. But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as &quot;We believe we acted correctly, but this will be decided in court&quot;? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? I'm most interested in answers about the US or Germany, but other jurisdictions are fine.
united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as &quot;We believe we acted correctly, but this will be decided in court&quot;? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as &quot;We believe we acted correctly, but this will be decided in court&quot; are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are &quot;forces of nature&quot; who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say &quot;no comment&quot; across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority.
Your belief in the truth of a statement is of only limited value in a defamation suit. Saying that a person is incompetent in that person's profession can certainly be defamation, and may even be defamation per se, depending on the jurisdiction. If the person sues and the speaker asserts truth as a defense, the speaker may have to prove that the statement is true. Why would one need to say anything at all in such a situation? Whether such a statement was a factual statement or a statement of opinion would depend very much on the detailed circumstances. But it is at least possible that a suit might be filed and won on this fact pattern. See this answer for more on defamation under US law.
If the lawyer has legitimate concerns, his first port of call would be the ICO https://ico.org.uk/. Before the ICO will take his complaint further he'll have had write to you expressing his concerns and received a written response that presumably he is unhappy with, and wants to take the issue further. Most companies have a data compliance team who will have policies and procedures to log breaches like this and decide what course of action to take in response. Not every breach needs to be brought to the attention of the ICO, and they have a handy self assessment tool to see if you should report the breach. https://ico.org.uk/for-organisations/report-a-breach/ In your situation, I don't think this constitutes a serious breach which will require investigating. It's simply an admin error. If it is unlikely to pose a risk to any of the individuals they will say something like: You should keep an internal record of the breach as detailed in Article 33 (5) of the GDPR, including what happened, the effects of the breach and remedial actions taken. The definition of risk according to the ICO is: "This risk exists when the breach may lead to physical, material or non-material damage for the individuals whose data have been breached". So in this case I'd assume a simple apology (Bcc'd :) ) and a record of what happened, how it happened, and the action taken to prevent it happening again should suffice.
united-states Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay). A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies. A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased. A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. &quot;on which day of the week did you beat your wife?&quot;). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer.
If I may paraphrase the scenario: The customer has a contract with the insurer The customer is contemplating undergoing a certain procedure and is unsure if it is covered under the contract The customer calls the insurer to ask this specific question The insurer says "yes" The customer undergoes the procedure The insurer refuses to pay on the ground that it is not covered under the contract. Let's put aside issues of evidence and what can be proved and assume these facts are not in dispute. There is no question that the contract has been renegotiated; it hasn't. This avoids the necessity of considering if the insurer's employee has the authority to do this or it the customer can rely that they do even if they don't. There are two possibilities: The procedure is covered and the insurer must pay under contract The procedure isn't covered and the insurer must pay under the tort of negligent misstatement. The insurer is vicariously liable for the actions of its employee. The insurer owes a duty of care to a customer who asks such a question to answer it correctly. It is foreseeable that the customer would act on the insurer's advice and incur costs that they may have avoided if the correct advice had been given. Nothing is ever certain in the law but this is as close as you can get.
What's the use of contracts if you can't take a contract violator to court? A clear, thoughtful contract can be a deterrent to misconduct, and Australia is one of many jurisdictions where pro se litigation is allowed. Self-represented litigants certainly have to undergo a steep learning curve and are expected to comply with a code of conduct, procedural law, and so forth, but my point is that hiring a lawyer is not compulsory. Even if for some reason the defrauded party declines to sue the tortfeasor (thereby forfeiting the recovery of the losses), there is a societal obligation to alert others about the tortfeasor's misconduct. Making the contract available to others facilitates alerting them on objective grounds so they don't become the tortfeasor's next victim, and it simultaneously helps for setting the record straight that the damages/losses were not one's own fault. Without a contract, it would be more difficult for others get a sense of whether misconduct occurred at all. Or worst, halfway down the line, you don't have any money left to pay your lawyers, and they leave the case. Hence the importance to litigate in pro per from the start. It is easy for a person retaining a lawyer to postpone (be it due to family obligations, workload, and so forth) his learning of the law. But that postponement only makes the client more vulnerable to his lawyer's subsequent withdrawal when court proceedings are midway: the client would have the dilemma of either finding another lawyer to resume the case --predictably at a higher cost--, or cram the learning curve in trying to keep up with the proceedings.
Is truth the ultimate defense to a defamation lawsuit in the USA? Truth is an absolute defense to defamation lawsuits in modern U.S. law (this was not always the case historically) as a matter of constitutional law in every state. In some kinds of defamation lawsuits (but not all kinds of defamation lawsuits), "actual malice" which means knowing falsity or reckless disregard for the truth, must be shown, so even a negligently stated falsehood is not actionable in those special kinds of defamation cases (mostly cases with public figure plaintiffs, media defendants, and/or case involving matters of public concern). Does a defamation defense vary between states? While most aspects of defamation law are mandated by the U.S. Constitution and a shared common law tradition, there are some slight and subtle differences between the states in defamation law, mostly concerning defamation suits by non-public figures against non-media defendants concerning matters that are not a matter of public concern. This impacts whether "actual malice" must be shown and can influence the burden of proof in defamation cases. Statutes of limitation for defamation suits also vary significantly between states. Even if the release of truthful information results in permanent career damage (i.e. loss of job, reputation, etc.) to someone, the truth would protect the author from a defamation lawsuit, correct? Yes. Keep in mind, however, that a defamation lawsuit is a suit for damage to one's reputation caused by a false statement. Sometimes disclosures of truthful information constitute an actionable tort other than defamation, however. For example, there would potentially be a civil action against someone who had signed a non-disclosure agreement for revealing truthfully information that the person sued contractually agreed not to disclose (e.g. the terms of the settlement agreement in a court case with a non-disclosure/confidentiality term, or the recipe for a restaurant's secret sauce that is a trade secret). Similarly, a doctor who revealed confidential patient medical information that was true could be sued. But, usually, in the absence of a particularlized confidentiality duty, truth is an absolute defense.
What interests me, is if the company that will be fulfilling the &quot;abracadabra&quot; request is able to not provide &quot;hocus pocus&quot; emails (internally — or later in the litigation, if the truth is uncovered — justifying it that the team fulfilling the request does not speak the language and was unaware of the existence of these communications in a foreign language)? Are there legal mechanisms that prevent such defense using &quot;foreign language&quot;? The legal obligation in discovery is to produce compliant documents without regard to their language. Good faith efforts need to be used. Generally speaking, a mere single language boolean or key word search of a database is not a sufficient effort to meet that obligation. Somebody was involved in writing the relevant emails and the lawyer and client representative needs to talk to the people who were involved, not just search a database, to make sure that all relevant materials are disclosed by whatever means are necessary to do so. This is why discovery is often the most expensive part of litigation. This doesn't mean that every good faith mistaken omission from discovery responses results in a court sanction if it is promptly remedied if later discovered. But, compliance requires engagement of the universe of possible documents with much more knowing and intelligent understanding that the question seems to assume. For what it is worth, I have litigated a case in a U.S. court where none of the parties (nor the judge) was fluent in the relevant language (Italian) of most of the documents, but both parties understood and agreed on the meaning of the relevant Italian business documents (invoices and bank statements mostly running to hundreds of pages), and they testified to the judge regarding what those documents meant in English, without the relevant documents ever being actually translated in full by anyone. Language never became a meaningful issue, in part, because the more important issue was understanding the context of how the Italian banking system and commercial transactions were structured and once that was understood, the documents themselves were easily enough understood from context.