Arizona Judge Lets Revenge-Porn Suit Against Law Firm Proceed, Ruling State Privilege Can't Shield Federal Civil-Rights Claim

PHOENIX (LN) — A federal judge on Monday refused to dismiss a civil-rights lawsuit brought by Stacy Cole against Phoenix law firm Tiffany & Bosco, P.A. and attorneys Lance R. Broberg and Tiffany Broberg, ruling that Arizona's absolute litigation privilege cannot extinguish a federal cause of action under the Violence Against Women Act's nonconsensual intimate-image statute, and that whether Lance Broberg acted in good faith when he emailed Cole's nude photographs to all counsel in a state insurance case is a question that requires a trial record to answer.

The ruling by U.S. District Judge John J. Tuchi addresses what the order describes as an unsettled question: no federal appeals court has yet established the threshold required for the good-faith litigation exception in 15 U.S.C. § 6851, the federal civil remedy Congress created in the Violence Against Women Reauthorization Act of 2022 for victims of nonconsensual intimate-image disclosure.

The underlying dispute traces to a $600,000 Allianz life insurance policy taken out by Cole's then-husband Robert Swortzel, which Allianz approved in February 2020. Robert later signed a change-of-beneficiary form naming Cole as the primary beneficiary, but after he died in an aviation accident on November 21, 2021, his children — Jacob, April, and Caleb Swortzel — contested the payout, alleging the divorce between Cole and Robert disqualified her as a beneficiary and that the signature on the form was not Robert's.

Cole sued the Swortzels in Arizona state court. During that litigation, on May 2, 2023, Lance Broberg — acting as counsel for the Swortzels — transmitted a disclosure statement by email to all counsel of record that included two nude photographs Cole had taken of herself and sent to Robert during their marriage. Cole was identifiable in the photographs by her face, by the surrounding text message chain, and by her identification in the disclosure statement itself.

The same day, Lance Broberg sent a separate settlement offer letter to all counsel describing the disclosed evidence as "concerning to say the least" and warning that "discovery may lead to even more concerning evidence." Cole alleged Lance Broberg never claimed the photographs were disclosed inadvertently, refused to remove them from the disclosure statement, and left open the threat of using them at trial.

Tuchi rejected the defendants' argument that Arizona's absolute litigation privilege — which protects judges, parties, lawyers, witnesses, and jurors from civil liability for statements made in judicial proceedings regardless of motive or purpose — bars Cole's federal claim. Citing Ninth Circuit precedent, he noted that "[a] state absolute litigation privilege purporting to confer immunity from suit cannot defeat a federal cause of action." He went further, holding that allowing the state privilege to operate alongside Section 6851 would render the statute's own good-faith condition void: Congress deliberately chose to immunize only disclosures "made in good faith" as part of a legal proceeding, not all litigation disclosures, and a blanket state privilege that forecloses any inquiry into motive would nullify that condition.

On the good-faith question itself, Tuchi declined to resolve it at the pleading stage. The defendants argued that because Cole herself intended to rely on the text message thread to prove the legitimacy of the change-of-beneficiary form, the entire thread — intimate photographs included — was subject to mandatory disclosure under Arizona Rule of Civil Procedure 26.1. Tuchi acknowledged the broad scope of Arizona's disclosure rules but drew a line: even if the surrounding text messages were relevant to the parties' competing narratives about Cole and Robert's relationship, it does not necessarily follow that the nude photographs embedded within that thread were themselves relevant to the central question — the legitimacy of the change-of-beneficiary form. That determination, he wrote, "requires further factual development that the Court cannot resolve on the allegations at the Motion to Dismiss stage."

Tuchi also denied the defendants' request for Rule 11 sanctions and attorneys' fees, which they had sought on the ground that Cole's amended complaint contained claims that "do not amount to colorable claims." With the motion to dismiss denied, he found that basis moot.

Defendants must file an answer to the amended complaint within the time set by the Federal Rules of Civil Procedure.