"Communications which are made on a proper occasion, from a proper motive, in a proper manner, and which are based upon reasonable cause are privileged.'" Thompson, 631 F.Supp.2d at 686 (quoting Moore v. Cobb-Nettleton, 889 A.2d 1262, 1268 (Pa. Super. Ct. 2005) (citing Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. Ct. 1996); RESTATEMENT (SECOND) OF TORTS § 595 (Protection of Interest of Recipient or a Third Person)). If a defendant carries its burden to show that a communication is conditionally privileged, the burden shifts to the plaintiff to establish that the defendant abused its conditional privilege. Miketic, 675 A.2d at 329.

"Communications which are made on a proper occasion, from a proper motive, in a proper manner, and which are based upon reasonable cause are privileged."Miketic v. Baron, 450 Pa.Super. 91, 675 A.2d 324, 329 (1996) (quoting Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583, 588 (1980)). Because Mr. Ralston is a private figure, we now return to application of Pennsylvania law.

If a defendant carries its burden to show that a communication is conditionally privileged, the burden shifts to the plaintiff to establish that the defendant abused its conditional privilege. Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. 1996). An abuse of privilege occurs if "the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or included defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose." Moore v. Cobb-Nettleton, 889 A.2d at 1269.

The question of whether a privilege applies is an issue of law for the court to decide. Miketic v. Baron, 675 A.2d 324, 327 (Pa. Super. Ct. 1996) (citing Agriss v. Roadway Exp. Inc., 483 A.2d 456, 463 (Pa. Super. Ct. 1984)). The Pennsylvania Superior Court in Maier v. Maretti held that statements among management-level personnel concerning an employee's job performance are privileged communications necessary for the operation of a business.

In an action for defamation, the plaintiff must prove: (1) the defamatory character of the communication; (2) publication by the defendant; (3) its application to the plaintiff; (4) understanding by the recipient of its defamatory meaning; (5) understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm to the plaintiff; and (7) abuse of a conditionally privileged occasion. Miketic v. Baron, 450 Pa. Super. 91, 675 A.2d 324, 327 (1996); Furillo v. Dana Corp. Parish Div., 866 F. Supp. 842, 847 (E.D.Pa. 1994); 42 Pa.C.S.A. § 8343. When relevant to the defense, the defendant has the burden of proving (1) the truth of the defamatory communication; (2) the privileged character of the occasion; and (3) the character of the subject matter of defamatory comment as of public concern.

Additionally, although the Pennsylvania Supreme Court has yet to speak to the issue, other courts in Pennsylvania, both state and federal have recognized that an absolute privilege based on consent currently exists in Pennsylvania. See Johnson v. Resources for Human Development, Inc., 860 F. Supp. 218, 222 (E.D.Pa. 1994) (absolute privileges are granted by consent); Frymire v. Painewebber, Inc., 87 B.R. 856, 859 (Bankr.E.D.Pa. 1988) (same); Miketic v. Baron, 450 Pa.Super. 91, 675 A.2d 324, 328 (1996) (same). The Court finds these decisions persuasive and plaintiff has not argued convincingly why they should not be followed.

We observe that Pennsylvania case law reflects a narrow scope intended for the grant of an absolute privilege. See Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. 1996) (citations omitted). The Pennsylvania Supreme Court explained the reasons for the absolute privilege:

. See also Miketic v. Baron, 675 A.2d 324, 327 (Pa. Super. 1996) (“One who publishes defamatory matter within the scope of an absolute privilege is immune from liability regardless of occasion or motive.”) (citation omitted).

Once Guardant shows its communications are privileged, it is Mr. Carroll's burden to show it abused the privilege.Miketic v. Baron , 450 Pa.Super. 91, 675 A.2d 324, 329 (1996) (citing Beckman v. Dunn , 276 Pa.Super. 527, 419 A.2d 583, 588 (1980) ). Pennsylvania recognizes a conditional privilege "when the speaker and recipient share a common interest in the subject matter and both are entitled to know the information," including "when an employer's workers communicate with each other in connection with the discipline, including termination, of a fellow employee."

Thus, a properly stated defense of conditional privilege will relieve a defendant of liability even where the court concludes that a communication is capable of a defamatory meaning. Miketic v. Baron, 450 Pa.Super. 91, 675 A.2d 324, 329 (1996). Communications are privileged when they are “made on a proper occasion, from a proper motive, in a proper manner, and based upon reasonable cause....” Choi v. Sohn, Civ. No. 01–1782, 2004 WL 627060, *3 (E.D.Pa. Mar. 1, 2004) (quoting Davis v. Resources for Human Dev., 770 A.2d 353, 358 (Pa.Super.Ct.2001)).