¶1dissenting.
¶2I would not begin constructing qualified privileges (as the majority does here) and I would not superimpose the law of ex*1221press malice into this area of the law. I would analyze the present case within our current legal framework and address whether the conduct is within the litigation privilege. Next, I would evaluate whether the alleged statements were inherently related to or connected with the underlying litigation.
¶3I would first conclude that inquiry made as part of the litigation investigation and discovery is within the concept of litigation and can be absolutely privileged. Second, however, there are genuine issues of material fact that must be resolved by a jury concerning what statements were actually made and only then can it be determined whether the alleged statements were inherently related to or connected with the underlying litigation or beyond the litigation to be subject to relief.