gov.uscourts.nysd.447706.1332.10.pdf

Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 1 of 64 EXHIBIT 1 (FILE UNDER SEAL)  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 2 of 64 1 H2G8GIUC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 Cv. 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. 8 ------------------------------x 9 February 16, 2017 12:45 p.m. 10 Before: 11 HON. ROBERT W. SWEET 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY 16 MEREDITH L. SCHULTZ 17 PAUL G. CASSELL S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH 18 HADDON MORGAN AND FOREMAN, P.C. 19 Attorneys for Defendant BY: JEFFREY S. PAGLIUCA 20 LAURA A. MENNINGER TY GEE 21 RANDAZZA LEGAL GROUP, PLLC 22 Attorneys for Intervenor Cernovich Media BY: JAY M. WOLMAN 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 3 of 64 2 H2G8GIUC 1 (Case called) 2 THE COURT: I think we have got to try to bring a 3 little order out of this chaos. Chaos being, by my 4 approximation, five feet of paper, maybe I am wrong, it might 5 be four, but it's between four and five, and myriad motions and 6 so on. 7 There are some preliminaries I would like to ask you 8 about. 9 How do you all feel about our trial setting of March 10 13. Is that real? 11 MS. McCAWLEY: We are set for March 13 right now, and 12 we actually had on the agenda, Jeff and I spoke about wanting 13 to talk to you about this today. We had originally anticipated 14 a two-week trial. We have set aside our experts, other 15 individuals that need to be here for that time period, so we 16 are planning to go to trial during that time period if it works 17 with the Court's schedule. 18 There is a concern that we may run long. So one 19 thought we had, I had, was whether or not it would be amenable 20 to the Court to possibly pick our jury on the Friday before, 21 which would be the 10th, so that by the time Monday rolls 22 around we can start the actual trial. Mr. Pagliura has a 23 family wedding the third weekend, so if we roll into that third 24 week that may become problematic for him. So we want to try to 25 find a way to keep the trial date and get through it, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 4 of 64 3 H2G8GIUC 1 hopefully we can work with the Court on that. 2 I will let them speak on that as well, but that's our 3 position, is we would like to go forward on the 13th and 4 proceed forward. 5 MR. PAGLIUCA: We actually conferred with Mr. Edwards 6 about this last week, and I advised Mr. Edwards that we were 7 going to be filing a motion to continue the trial that's 8 presently scheduled. 9 The Court can see from the pretrial order that we 10 filed, there is some roughly, by my count, 80 witnesses that 11 have been identified as trial witnesses. When you actually try 12 to tally up the recorded testimony that's been designated, I 13 don't think you could play that testimony within a two-week 14 time frame. So, in my view, this case as currently postured 15 would roughly take about a month to try as currently postured. 16 When we originally scheduled the case, we all agreed it would 17 be a two-week time frame. My daughter's wedding is not the 18 issue in this case. So I don't want that to be an issue. 19 THE COURT: When is it? 20 MR. PAGLIUCA: It is before the trial, shortly before 21 the trial, your Honor. So it is not the third week. There was 22 some discussion about opening up the trial, moving it earlier, 23 which is why I said I really need to be at my daughter's 24 wedding, which is March 4, but that's not the issue. The issue 25 is the two weeks that have been set aside are not sufficient to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 5 of 64 4 H2G8GIUC 1 try this case, number one. 2 There is another real problem and a prejudicial 3 problem to the defense, should it go as the plaintiffs have 4 currently postured it, which is we have witnesses in England, 5 South Africa, Colorado, and these people all have to come here 6 on a date certain. And the pretrial order, the plaintiff's 7 statement suggests that they may need 10 to 15 trial days, but 8 I can't schedule international witnesses and Colorado witnesses 9 and expert witnesses on a rolling basis because they have to 10 get here and be available to testify. 11 So there are a plethora of problems with this case 12 proceeding on March 13. And that's sort of the tip of the 13 iceberg, your Honor, because then there are all these other 14 discovery and evidentiary issues that, frankly, I don't believe 15 will be resolved in sufficient time to have an orderly trial 16 here. If we go through all of the deposition designations and 17 then end up with designations, I don't see how anyone can cut 18 together that much designation testimony in a short time before 19 trial in the case. So I predict, if we were to go to trial, we 20 would end up with massive delays, massive juror problems, and 21 delay of time and waste of court resources. 22 So I think for all of those reasons, your Honor, I am 23 anticipating filing a motion to continue, but that's as I see 24 the lay of the land here. If we had planned for this to be a 25 month long case, I think we would have approached this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 6 of 64 5 H2G8GIUC 1 differently, but we didn't. 2 THE COURT: What do you think is a reasonable trial 3 date under your view of the matter? 4 MR. PAGLIUCA: I would say sometime this summer would 5 be fine, your Honor. June would be fine. We are talking about 6 90 days from the original trial date. Believe me, we all want 7 to resolve this case, and my client wants to resolve this case. 8 I am not looking for any tactical delay here. I am just 9 looking for a reasonable solution to what I see as a global 10 problem. 11 THE COURT: OK. Let me ask you this. Would anybody 12 have any problem if we were to start this on April 10? 13 MS. McCAWLEY: Your Honor, I don't believe at this 14 very moment that that would be a problem. My only issue is I 15 cleared all of my experts. They had to set aside their 16 schedule to be here for that date. So I would hate to commit 17 to something and have one of my critical experts say they have 18 already scheduled something in that time period. The earlier 19 the better for us. We want to get this case tried, but I would 20 have to double-check before I committed our group to that 21 because I just don't know at this point. 22 THE COURT: I think based on the joint pretrial order, 23 and the outstanding problems that we have, which we will get 24 to, I think we are probably talking about a four-week trial. 25 How about the defense, April 10. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 7 of 64 6 H2G8GIUC 1 MS. MENNINGER: Your Honor, I have a trial scheduled 2 in federal court in Colorado beginning on April 24. 3 THE COURT: When? 4 MS. MENNINGER: April 24, your Honor. And I have 5 another state court trial scheduled on May 8. So I would ask 6 to set it past those two dates. 7 THE COURT: That sounds like May 15. 8 MS. MENNINGER: That's fine, your Honor. We haven't 9 checked with our experts either. 10 THE COURT: I understand the problem of witness 11 availability and so on, I have got that, but that's something 12 we can work out, hopefully. How about May 15 then? 13 MS. McCAWLEY: Yes, your Honor. Again, we have two of 14 the partners trying the case with us as well. 15 THE COURT: Let's do this then. Let's plan on May 15, 16 and I would direct counsel not to take any other commitments, 17 trial counsel, so that we can go forward with that. 18 So that's first order of business. 19 MS. McCAWLEY: Your Honor, could I ask one question, 20 just so I am clear when we are scheduling witnesses. Do you 21 typically run your trials five days through or take off 22 Thursdays? In other words, do we get five full days straight 23 or do you usually have a break where we won't be on trial on 24 Thursday, for example? 25 THE COURT: I don't understand the question. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 8 of 64 7 H2G8GIUC 1 MS. McCAWLEY: If we start trial on a Monday, do you 2 typically run the full week or do you take a break on Thursdays 3 for these hearings? 4 THE COURT: No. We would probably run a full week. 5 Friday has sort of a sacrosanct atmosphere, but that's not 6 written down anywhere. It will depend. See how we go and 7 whatever. 8 MS. McCAWLEY: Thank you, your Honor. 9 MR. PAGLIUCA: Your Honor, might I ask one other 10 question on the scheduling matter? 11 THE COURT: Yes. 12 MR. PAGLIUCA: One of the things that would be very 13 helpful in scheduling would be if we had a system where the 14 plaintiff had a start date and an end date so that I could then 15 contact witnesses and say, here's your day. 16 THE COURT: There's a lot of things that have to be 17 ironed out. Let's start with a couple. 18 The Flores motion, I think we should probably have a 19 hearing on the admissibility of the challenged document -- I am 20 calling it that -- because if the document doesn't get in, 21 there is no sense worrying about Flores. So that's one thing. 22 Secondly, we have got to figure out how you all want 23 to handle the confidential material, any materials that have 24 been designated as confidential, when we get to the trial. And 25 we have got to have some kind of a protocol as to how that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 9 of 64 8 H2G8GIUC 1 going to be done. 2 So I would say counsel should get together and decide 3 when you want to have a hearing on the admissibility issue, the 4 Rodriguez materials, and then, also, how you would propose that 5 we handle the question of confidentiality. Because I hope we 6 are not going to be opening and closing the courtroom. It 7 should be open all the time, as far as I am concerned. 8 Let me put it this way. I would certainly urge that 9 we remove the confidential designation for any material that's 10 going to be submitted to the jury. 11 MR. PAGLIUCA: Your Honor, I think that's what our 12 protective order contemplates. 13 THE COURT: Well, work out how we are going to deal 14 with it. The mechanics are not easy. 15 Having said all of that, I think what I should do 16 right now, I think we might hear briefly on the motion to 17 intervene and then hear the motion for summary judgment. My 18 sense of that at the moment is that some of the issues that are 19 involved in that motion for summary judgment have to be decided 20 before you really come to grips with the seven experts that 21 have been de-expertized, if that's a word. 22 So that's the way I would suggest we proceed. So you 23 meet and confer and decide when you want to have a hearing on 24 the Rodriguez documents, and if you can agree on how we are 25 going to handle the confidential materials, bring it back to me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 10 of 64 9 H2G8GIUC 1 if you can't agree. And at the moment, I will hear the motion 2 to intervene. 3 Anybody for it? 4 MR. WOLMAN: Good afternoon, your Honor. Jay Wolman, 5 Randazza Legal Group, on behalf of putative intervenor Michael 6 Cernovich, d/b/a Cernovich Media. 7 Consistent with how your Honor is approaching trial, 8 saying that it should be open all the time, summary judgment is 9 a proceeding -- 10 THE COURT: I didn't make a decision on that. I said 11 that would be my preference. We have a confidentiality 12 agreement and that's controlling. 13 MR. WOLMAN: I understand, your Honor. 14 The orders already here did not require the Court to 15 analyze any material submitted to be sealed. The parties were 16 given the opportunity to freely submit in support of judicial 17 documents. There is no question summary judgment papers are 18 judicial documents. They can determine the outcome of the 19 case. The Second Circuit is quite clear on this. It's 20 settled. 21 So then the only question becomes whether or not the 22 plaintiffs, or whomever would want the materials sealed, 23 because the motion for summary judgment itself was filed by the 24 defendants who didn't say why it should be sealed. 25 THE COURT: Let's talk about the motion to intervene. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 11 of 64 10 H2G8GIUC 1 MR. WOLMAN: Yes, your Honor. It's to intervene for 2 the purposes of unsealing. My client is a member of the media. 3 The Fourth Estate has a First Amendment right to review 4 judicial documents, a common law right of access to the court 5 proceedings as to what is going on, because the Court may find 6 for the defendants. The court may say, no, it has to go to 7 trial. But that is an adjudication and the standard for 8 sealing any of these documents has not been met because nobody 9 has asked the Court for a finding on any of the materials. 10 THE COURT: Thank you. 11 MS. SCHULTZ: This is Meredith Schultz for the 12 plaintiff. 13 This Court has already ruled that the protective order 14 should not be disturbed by a proposed intervenor seeking to 15 unseal and publish self-selected, piecemeal portions of the 16 record. The latest attempt at intervention by a party line 17 defendant failed on the applicable law, as it is little more 18 than an attempt to taint the jury pool and malign the plaintiff 19 in the eyes of the public immediately prior to trial. 20 This Court's analysis can begin and end with the 21 Second Circuit's presumption against modifying protective 22 orders on which the parties have reasonably relied. The Second 23 Circuit test on this is clear. It's articulated in In re 24 Teligent, 640 F.3d 53, and In re Sep. 11 Litig., 262 F.R.D. 25 274. Courts can only set aside protective orders if they are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 12 of 64 11 H2G8GIUC 1 improvidently granted or if there is some extraordinary 2 circumstance or compelling need. The proposed intervenors fail 3 to make any showing whatsoever for either prong of this test. 4 The Second Circuit has been hesitant to permit -- 5 THE COURT: Forgive me, but we are talking about the 6 motion to intervene. You're talking about the substance of 7 unsealing. But do they get in to make that motion? 8 MS. SCHULTZ: No, your Honor, and this is why. 9 The First Amendment does not give the proposed 10 intervenor standing to intervene in this case. Nonparties 11 cannot claim a First Amendment infringement on their freedom of 12 speech. The right to speak in public does not carry with it an 13 unrestrained right to gather information. Moreover, the 14 proposed intervenor's brief is completely silent on how the 15 public access to pretrial proceedings would play a significant 16 positive role in the functioning of the judicial process. And 17 under the test set forth by the Second Circuit in Newsday LLC, 18 730 F.Supp.2d, at page 417, he makes no showing of that 19 whatsoever. So already there is no standing to intervene based 20 on the Second Circuit test. 21 Finally, this Court has already ruled that it's 22 appropriate for these materials to be sealed, and nothing in 23 either the purported intervenor or Professor Dershowitz's 24 joining of that brief put forth any evidence that the law 25 should be disturbed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 13 of 64 12 H2G8GIUC 1 THE COURT: Anything further? 2 MS. SCHULTZ: Before you are going to reach the merits 3 going to the sealing order, the protective order, there is no 4 standing to intervene in this case. 5 THE COURT: Thank you. Anything else? 6 MS. SCHULTZ: Yes, if you don't mind, your Honor. 7 It fails for other reasons under the law. In the 8 entire motion and reply brief, it is wholly bereft of case law 9 in which a motion to intervene and publish confidential 10 information has been granted in a case with circumstances like 11 this at all. 12 Here, there are clear and compelling reasons for the 13 sealed documents to remain sealed. They involve the sexual 14 abuse and sexual trafficking of minors. Both parties in this 15 case and the Court in its March 17, 2016 hearing articulated 16 clear and compelling reasons why these records should be 17 sealed. 18 Contrary to the Bernstein case cited by the purported 19 intervenor, where records were unsealed after settlement, not 20 weeks prior to trial, these documents were not sealed because 21 of some pedestrian reason like an alleged kickback scheme. 22 There can hardly be a more compelling reason to seal documents 23 than those that depict the sexual abuse and sexual trafficking 24 of plaintiff, other minors and other young women. 25 Here, there is no showing why some unspecified SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 14 of 64 13 H2G8GIUC 1 interest in revealing documents concerning sexual assault 2 should disturb the protective order. Moreover, there is prima 3 facie evidence here that there is an illegitimate purpose. 4 There are two purported intervenors -- one intervenor 5 and one purported intervenor moving the Court to unseal these 6 documents right now. Under Nixon v. Warner, Supreme Court 7 case, 435 U.S. 598, and Amodeo, 71 F.3d at 1044, the purported 8 intervenor's history of being, as New York Magazine termed, a 9 rape apologist and attacking victims of sexual abuse point to a 10 highly illegitimate purpose to get these unsealed documents 11 that relate to sexual assault. Also, Dershowitz's now official 12 joining of this motion shows that both directly and by proxy 13 are acting to ratify Dershowitz's private spite. 14 Courts in this district and others routinely seal 15 summary judgment materials, such as in Louis Vuitton v. My 16 Other Bag, wherein the court held that privacy interests of 17 business figures were sufficient to keep summary judgment 18 documents sealed. Here, the privacy interests are those of 19 underage victims of sexual assault. If this Court can extend 20 protection to summary judgment materials related to business 21 figures, it can certainly protect documents surrounding sexual 22 assault of minors. 23 Again, I don't think the Court needs to reach the 24 merits because I don't think there is standing to intervene. 25 Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 15 of 64 14 H2G8GIUC 1 THE COURT: Anything further? 2 MR. WOLMAN: I am surprised by the question of 3 standing. Nothing in any of the opposition suggests that my 4 client is not a member of the Fourth Estate. Nothing in the 5 opposition suggests that this is not a newsworthy case. There 6 have been plenty of articles about Mr. Epstein, about this 7 entire proceeding. This has been in the media. So my client 8 is just another journalist looking to find out here what's 9 going on. 10 Honestly, I am litigating a little bit with one arm 11 tied behind my back because I am being told that the summary 12 judgment motions and papers have information about all these 13 other minors. I wouldn't know that, your Honor. The motion 14 for summary judgment is redacted, pages 1 to 68. Every single 15 exhibit, the opposition, the reply, this is all redacted. This 16 is not part of the public record. The public cannot examine 17 it. 18 Regardless of my client's relationship with Professor 19 Dershowitz does not negate his standing as a member of the 20 media looking to report on a newsworthy case. If there are 21 particular materials in the summary judgment motion or 22 opposition that are proper to be sealed, we recognize that, but 23 we don't know what they are in order to make that analysis. 24 They are putting the cart before the horse saying it should be 25 sealed or remain sealed when they haven't made a showing of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 16 of 64 15 H2G8GIUC 1 what it is that should be sealed. So we can't address that 2 issue. 3 With respect to the Second Circuit precedent, this is 4 not about tainting the jury pool or self-selecting. This isn't 5 even about discovery materials. Mr. Dershowitz's motion was 6 about discovery materials. This isn't. This is about a 7 judicial document, the motion for summary judgment. 8 Now, the case they relied upon, the documents weren't 9 at issue until after settlement. Well, this is actually more 10 important because this is about what the Court will or will not 11 decide on the ultimate outcome potentially of this case, 12 because defendants could walk out of here winning summary 13 judgment based upon these very papers that the public has no 14 idea what is in them. That distinguishes Martindale. It fits 15 as seen in Agent Orange. Just because, unfortunately, it does 16 involve allegedly the sexual assault of minors, that does not 17 in and of itself mean there should be a blanket sealing order 18 in all cases. 19 In fact, Globe Newspaper was the Supreme Court case 20 that specifically held that a Massachusetts statute that 21 automatically sealed material relating to sexual assault of 22 minors does not pass muster. We have to look at an 23 individualized, particularized basis as to why these particular 24 materials should be sealed. Maybe they should be, some of 25 them. We are not looking to embarrass or expose the plaintiff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 17 of 64 16 H2G8GIUC 1 We are looking to publicize about a defendant who is now sued 2 in multiple cases relating to a pedophilia ring. This is the 3 news. This is what the public is interested in. This is about 4 there is justice in the courts and there is justice in the 5 court of public opinion. 6 THE COURT: Thank you all. I will reserve decision. 7 Now I would like to hear on the motion for summary 8 judgment. 9 MR. PAGLIUCA: Your Honor, this Mr. Gee who will be 10 arguing this motion. I think it might be prudent at this 11 point, given that I think we are likely going to be talking 12 about information that is subject to the protective order -- 13 THE COURT: I think you won't. 14 MR. PAGLIUCA: OK. 15 MR. GEE: Good afternoon, your Honor. My name is Ty 16 Gee. The Court granted my PHV motion last week. -- 17 18 We have 80-some-odd witnesses and the Court has talked about four to five feet of material. I think the summary -- 19 20 judgment motion, your Honor, might cut to the chase, and the Court has suggested that perhaps it could, at least with regard 21 22 -- to the pending 702 motions. I am here to suggest to the Court that the disposition 23 24 -- of this motion for summary judgment, at least with regard to issue number one, certainly can narrow the issues considerably. 25 - There would not necessarily need to be 80 witnesses. SOUTHERN DISTRICT REPORTERS, P.C. And with (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 18 of 64 17 H2G8GIUC •1 regard to the other three issues raised on the motion for •2 summary judgment, they would resolve the case entirely. •3 I would like to talk in order of the issues that I •4 think require the least amount of facts in order for the •5 defendant to prevail on summary judgment. The first had to do •6 with republication. •7 Your Honor, this Court decided the Davis case in 1984, •8 which, frankly, has been consistent with all of the •9 republication law in the state of New York. It requires that -- 10 11 for there to be liability for republication, it must be based on real authority to influence the final product. So that's -- 12 13 what we, the defense, have been focusing on with regard to this issue. Was there real authority to influence the final -- 14 15 product? Authority has a specific meaning. In Davis, the Court said that authority means the authority to decide upon or 16 17 -- implement the republication. And the Court further said that acquiescence or peripheral involvement in any republication is 18 19 -- legally insufficient. Of course, I have read the response and the plaintiff 20 21 -- chafes at this idea that an original publisher should not be liable for republication. Your Honor, I guess I have a couple 22 23 -- of responses to that. One is that this disagreement with that rule is directed to the wrong forum. The New York Court of 24 25 -- Appeals and the New York law, of course, is what applies here. The New York Court of Appeals already has spoken on this topic. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 19 of 64 18 H2G8GIUC •1 And in Geraci, the court said that Davis is right, that you •2 need control and authority over the republication in order for •3 a defendant to incur liability. •4 I would also say, Judge, that the plaintiff's •5 disagreement with this rule fails to acknowledge the unique •6 history and the robust protection of free speech that the New •7 York Constitution has afforded speakers in the state of New •8 York. G case cited in our This is discussed in the Immuno AG • - 9 papers. At the end of the day, Judge, the plaintiff chose to -- 10 sue in New York, chose to have New York State law apply. The -- - 11 plaintiff doesn't have to like it. They just have to live with 12 it. And the law is very clear as stated in Davis. 13 Now, with regard to the undisputed facts on this 14 15 -- question, Judge, there is no question that Mr. Barton, Ms. Maxwell's lawyer, as her agent, caused the January 2015 16 17 -- statement to issue. The e-mail that accompanies that January 2015 statement says, in effect, here is a quotable statement. 18 19 -- Here is what it does not say, Judge. It does not say, you are hereby commanded to reprint and republish what we say 20 21 -- here. It doesn't say, if you do not print this quotable statement, we will sue you. It does not say that if you 22 23 -- republish the joinder motion allegations, you must also republish the statement. Ultimately, what the e-mail does is 24 25 -- that it leaves totally in the discretion of the media whether to publish this quotable statement or not to publish the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 20 of 64 19 H2G8GIUC •1 quotable statement. •2 There was some discussion in the papers about whether •3 this was a, quote unquote, press release. The plaintiff wants •4 to call it a press release. That's not what the statement •5 calls itself. As we point out in our papers, it would be quite •6 an unusual press release to make these arguments about how the •7 plaintiff has told falsehoods and then threatened to sue the •8 very people to whom this quotable statement is submitted. •9 The dispositive fact for Davis purposes and for Geraci -- 10 11 purposes, Judge, is that we have uncontested testimony from the defendant, Ms. Maxwell, from Mr. Barton and Mr. Gow that they -- 12 13 did not control the republication of this quotable statement, and they had no decision-making authority over any of the -- 14 15 media. You did not see a contest on that question. In Davis, this Court held that if there is no evidence 16 17 -- that the defendant controlled republication or made the decision to republish, the trial court has "no option" but to 18 19 -- dismiss the case. judgment. And here, your Honor, to grant summary 20 21 -- There was some confusion, I believe, in the plaintiff's papers with regard to the question of republication 22 23 -- and the separate question of republication of excerpts from the quotable statement. These are two different points, your 24 25 -- Honor, and we submit that the plaintiff loses on both of these issues. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 21 of 64 20 H2G8GIUC •1 It loses on the first issue because it has not •2 produced any admissible evidence that Ms. Maxwell or her agent •3 had any control or authority over the media or making a •4 decision about the republication of the quotable statement. •5 On the second issue, with regard to excerpts, we •6 pointed out that, as bad as it is to hold a defendant liable •7 for the republication of a statement, it must ever so be wrong •8 to make that defendant liable for someone else's decision to •9 republish portions of a statement she has issued. -- 10 11 Now, the New York state law on this is set out in the Rand v. New York Times case. The undisputed facts with regard -- 12 13 to this second point with regard to republication, Judge, is that Mr. Barton drafted the bulk of this statement. If you -- 14 15 look at the Barton declaration, paragraphs 13 to 20, this makes it absolutely clear. I understand from the plaintiff that 16 17 -- there is some dispute about whether Mr. Barton drafted the bulk of the statement. That's not true at all. If the Court looks 18 19 -- at the papers cited by the response, there is no contradiction of Mr. Barton's testimony. Mr. Barton said that, I drafted the 20 21 -- vast majority of it. He said that it's possible that someone else may have contributed, but, ultimately, I'm the one who 22 23 -- drafted it, and I adopted all of these statements in the January 2015 statement. 24 25 -- It is undisputed, Judge, that Mr. Barton's purposes in drafting the statement on behalf of Ms. Maxwell was two-fold: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 22 of 64 21 H2G8GIUC •1 To mitigate the damage caused by the plaintiff's salacious •2 statements to the media, in the form of that joinder motion in •3 the CVRA case, and the second purpose was to prevent further •4 damage to Ms. Maxwell by issuing this quotable statement. •5 Now, the quotable statement is unique, as I pointed •6 out earlier, because it threatens to sue the very people to •7 whom it is sent. And Mr. Barton says that that was •8 intentional. This quotable statement was intended to be a •9 cease and desist. If you republish this plaintiff's -- 10 11 allegations in that CVRA joinder motion, you do so at your own legal peril. That was the message that Mr. Barton was -- 12 13 delivering in that January 2015 statement. Mr. Barton also testifies -- and this is actually -- 14 15 shown in the statement itself, January 2015 statement -- that he was building, in effect, a syllogism. The syllogism went 16 17 -- something like this, Judge: Premise number one is that this woman has made false 18 19 -- statements in the past, referring to the original allegations from as far back as 2011 and the Sharon Churcher articles. 20 21 -- Premise number two was she is doing it again. allegations, these new allegations in the CVRA joinder motion These 22 23 -- are different from, and more salacious than, and contradictory of the March 2011 statements that were made to the press, for 24 25 -- example, the two Churcher articles attached as Exhibit A and B to our motion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 23 of 64 22 H2G8GIUC •1 The conclusion from these two premises, Judge, is •2 found in the third paragraph of the January 2015 statement, •3 that this plaintiff is uttering, quote, obvious lies, the •4 claims are obvious lies. •5 THE COURT: Meaning all that you have referred to? •6 MR. GEE: I'm sorry? •7 THE COURT: Meaning all that you have referred to, the •8 2011 and the intervenor's claims? •9 MR. GEE: That's a very good question. -- 10 11 THE COURT: MR. GEE: Yes, it is. The recipients of this quotable statement, -- 12 13 of course, are the 6 to 30 journalists to whom Mr. Gow sent e-mails to. There is no indication whatsoever in the January -- 14 15 2015 statement about which allegations are being referred to and the allegation -- there's two references to allegations in 16 17 -- the first paragraph of the January 2015 statement. THE COURT: Original. 18 19 -- MR. GEE: allegations -- Right. If we go back to the original 20 21 -- THE COURT: MR. GEE: Those are 2011. That's right, Judge. 22 23 -- So let's go back to the original allegations. sure exactly what are the original allegations. I'm not I have no 24 25 -- doubt that the recipients of this January 2015 statement had no idea what qualifies as, quote, the original allegations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 24 of 64 23 H2G8GIUC •1 THE COURT: I don't care about that. What I am trying •2 to figure out is what claims are we talking about. •3 MR. GEE: Your Honor, I think that is the problem with •4 the plaintiff's case. Is that we have no idea what we are •5 talking about. Because if we listen to what Mr. Barton is •6 intending, he is not trying to focus -- •7 THE COURT: His intent, it seems to me -- I don't mean •8 to be rude, but I don't know that his intent matters. There is •9 no question but that Ms. Maxwell authorized the issuance of the -- 10 11 statement. So it seems to me it's her statement. MR. GEE: Your Honor, in fact, why don't we just set -- 12 aside Mr. Barton's declaration for purposes of discussion of - 13 this second point about republication. -- 14 15 d point is that you cannot take a statement, an The Rand excerpt from a statement; you, the republisher, cannot choose 16 17 -- which part of a statement to extract from and then republish it and then have the plaintiff choose to sue the person whose 18 19 -- statement was extracted. point, Judge. That's the Rand v. New York Times And we don't need Mr. Barton's support there 20 21 -- because it is uncontested that what happened in this case is that every single one of the republications were excerpts from 22 23 -- that quotable statement. The only point I was trying to make, and I don't need 24 25 -- Mr. Barton to make this for me, is that that quotable statement sets up a legal argument that says, she lied here, she lied SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 25 of 64 24 H2G8GIUC •1 here, these are obvious lies. •2 d point is this. Now, the Rand You can't take one of •3 the premises, or, for example, a conclusion, and then republish •4 that and then make Ms. Maxwell liable for that republication. •5 She didn't choose to say only premise one. She didn't choose •6 just to say premise two. She chose to say all of it. She is •7 building a point. She is making a point to the media that you, •8 media, need to be responsible, you need to be questioning, and •9 you need to make comparisons between her earlier statements and -- 10 11 her new statements, and you figure it out, because if you figure it out wrong, you could be on the wrong end of a lawsuit -- 12 13 filed by my client. What the media did in this case, and, frankly, what -- 14 15 the plaintiffs did in their own complaint, paragraph 30, your Honor, was to take portions, in fact, it was words in the 16 17 -- complaint, the complaint that your Honor ruled on in that 12(b)(6) motion. They didn't even take the sentences; they 18 19 -- literally extracted phrases and stuck it into paragraph 30 of their complaint. But the problem here is, if you do anything 20 -- like what the plaintiffs did, or what the media did in this - 21 case, you can't hold Ms. Maxwell liable for that republication. 22 23 -- You change the meaning. How do you change the meaning? changed the meaning because you excluded premise one or premise You 24 25 -- two or the conclusion or the entire argument that Mr. Barton was trying to make on behalf of Ms. Maxwell. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 26 of 64 25 H2G8GIUC •1 So that's the second republication point, your Honor. •2 Let me move quickly to the pre-litigation privilege. •3 This was argument three in our summary judgment papers, Judge. •4 We know under New York law that if you're in •5 litigation, a lawyer makes a statement that's absolutely •6 privileged. The question in the Front v. Khalil case is what •7 happens if a lawyer makes a statement before litigation has •8 begun? And in that case, litigation did not begin until six •9 months after the allegedly defamatory statements by the lawyer. -- 10 11 So what the New York Court of Appeals says in 2015 is that, because of the possibility of abuse by lawyers -- I can't -- 12 13 imagine that -- what we are going to do instead is we are not going to give you an absolute privilege, we will give you a -- 14 15 qualified privilege. rather carefully, Judge. But it defines a qualified privilege It says that the qualified privilege 16 17 -- that you have is that any statement that a lawyer makes in good faith anticipated litigation, that's pertinent to good faith 18 19 -- anticipated litigation, is privileged. Now, you can look at this as being absolutely 20 21 -- privileged or qualifiedly privileged. It's absolutely privileged, in my view, so long as the lawyer can establish 22 23 -- that there was a good faith anticipated litigation. have established that point, then it is an absolute privilege. Once you 24 25 -- Or you can talk about it in a qualified sense, which is that the lawyer has a privilege to make defamatory statements, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 27 of 64 26 H2G8GIUC •1 the privilege is qualified by whether or not the statement is •2 pertinent to good faith anticipated litigation. •3 Regardless of which way we want to look at this •4 privilege, as articulated in the Khalil case, Judge, it applies •5 here. The elements that Khalil says we must establish in order •6 to prevail on summary judgment on this privilege, Judge, is it •7 has to be a statement by an attorney or an agent under his •8 direction. We have undisputed testimony, paragraphs 7 to 20 of •9 Mr. Barton's declaration, saying that: I'm the one who engaged -- 10 11 Mr. Gow. I am the one who directed Mr. Gow. drafted the vast majority of the statement. I am the one who As to the -- 12 13 possibility that other parts were drafted by someone else, I adopted them as my own before I directed Mr. Gow to send out -- 14 15 the statement. We have satisfied that. The second element is that it had to be pertinent to 16 17 -- good faith anticipated litigation. Well, the test on pertinence, I don't believe that the plaintiff is contesting 18 19 -- this but I will just mention it quickly, which is that in the Flomenhaft case, the appellate court said that the test on 20 21 -- pertinence is "extremely liberal." And for a statement to be actionable it must be "outrageously out of context." 22 23