Case 0:17-cv-60426-UU Document 169 Entered on FLSD Docket 06/04/2018 Page 6 of 22
proceedings “open to the public,” and although there is one case suggesting that Florida courts
might extend the privilege to cover non-public information in some circumstances, it is not clear
that confidential or classified materials are protected. See Restatement (Second) of Torts § 611
(1977); Ortega v. Post-Newsweek Stations, Florida, Inc., 510 So. 2d 972 (Fla. Dist. Ct. App.
1987). In New York, by contrast, the law is well established that the privilege applies to
confidential and even privileged materials. See Fair Report Privilege, infra. Finally, in Florida,
the privilege is qualified; in New York, it is absolute. Compare Woodard, 616 So. 2d at 502,
with Cholowsky v. Civiletti, 69 A.D.3d 110, 114 (N.Y. App. 2009). As to the neutral report
privilege, at least one Florida court recognizes it; New York courts do not. Compare Thomas v.
Patton, No. 162005CA003777XXXXMA, 2005 WL 3048033, at *3 (Fla. Cir. Ct. Oct. 21, 2005),
with Hogan v. Herald Co., 84 A.D.2d 470, 446, aff’d, 58 N.Y.2d 630 (N.Y.S.2d 1982).
Accordingly, the Court must conduct a choice-of-law analysis.
A federal court sitting in diversity must apply the conflict-of-laws rules of the forum
state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). As a preliminary matter,
the court must characterize the legal issue before it and determine whether it sounds in tort,
contract, property law, etc. Acme Circus Operating Co., Inc. v. Kuperstock, 711 F.2d 1538, 1540
(11th Cir.1983). Once it has done so, the court determines the choice of law rule that the forum
state applies to that type of issue. Id.
Here, the issues before the court are the applicability of two affirmative defenses to
defamation; these issues, therefore, arise in tort. With respect to issues in tort, Florida applies the
“most significant relationship” test outlined in the Restatement (Second) of Conflict of Laws
section 145. Grupo Televisa, S.A. v. Telemundo Commc’ns Grp., Inc., 485 F.3d 1233, 1240
(11th Cir. 2007) (citing Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980)).
6