gov.uscourts.nysd.447706.1325.18.pdf

Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 1 of 23 Exhibit 4 (File Under Seal)  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 2 of 23 1 GlETGIUA 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 New York, N . Y. 9 January 14, 2016 12:00 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER 15 Attorneys for Plaintiff BY: SIGRID McCAWLEY 16 HADDON, MORGAN & FOREMAN 17 Attorneys for Defendant BY: LAURA MENNINGER 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P . C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 3 of 23 2 GlETGIUA 1 (In open court) 2 THE COURT : I will hear from the movant. 3 MS . MENNINGER : Thank you, your Honor, Laura Menninger 4 on behalf of the defendant Maxwell. We are the movant for the 5 purposes of today's hearing . I filed both a motion to dismiss 6 the complaint, which is based on one claim of defamation, as 7 well as a motion to stay discovery during the pendency of our 8 motion to dismiss the complaint. 9 At the heart of this case, your Honor, defamation is 10 about words, specifically false and defamatory words, about the 11 plaintiff published to another by the defendant with a certain 12 level of culpability and resulting injury. Depending on the 13 context of the words, the content of the statement, the 14 relationship of the speaker and the listener, depending on the 15 time, place and manner of the statement, the Court may find the 16 words to be actionable or not, privileged or not, defamatory in 17 meaning or not. 18 The central problem with this particular complaint, 19 your Honor, is that all of the key elements of defamation are 20 conspicuously absent. Cutting through the hyperbole and the 21 rhetoric contained in the complaint, one is still left 22 wondering what words are actually at issue . Is it the three 23 sentence fragments contained in paragraph 30 against Ghislaine 24 Maxwell are untrue, shown to be untrue, claimed or obvious 25 lies, or does it include some additional or extra false SOUTHERN DISTRICT REPORTERS, P . C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 4 of 23 3 GlETGIUA 1 statements that are referenced but never explained in 2 paragraphs 31 and 34? In what context were any of these 3 sentence fragments published? What , if anything, were they in 4 response to? 5 Your Honor has found in previous cases, such as 6 Hawkins v . City of New York, that the failure to identify the 7 individuals to whom the statement allegedly was made and the 8 content of that statement is fatally defective to an attempt to 9 state a libel or slander cause of action. 10 In this case, in this complaint, plaintiff has barely 11 even attributed a few sentence fragments to my client, 12 Ms. Maxwell . She stripped them of any context. She hasn't 13 provided the entire statement in which those sentence fragments 14 were contained, nor the articles in which any of those 15 sentences might have appeared. She has not pled facts, which, 16 as this Court knows, post-Twombly, must be included, not just 17 legal conclusions. She has not pled facts demonstrating actual 18 malice, nor any special damages or facts that would support 19 defamation per se . Because of the many pleading failures , your 20 Honor , I do not believe this complaint should stand. 21 The Second Circuit made quite clear that your Honor 22 has an important gatekeeping function in a defamation case. 23 The Court must ascertain whether the statement, when judged in 24 context, has a defamatory meaning, and also whether it is 25 privileged . SOUTHERN DISTRICT REPORTERS, P.C . (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 5 of 23 4 GlETGIUA 1 As your Honor also found in Cruz v. Marchetto, you 2 cannot rely, as the plaintiff tries to do here, on the less 3 stringent pleading requirements that predated Twombly and 4 Igbal, and furthermore, that the plaintiff must plead facts 5 which support either defamation per se or special damages. 6 Here, your Honor, while there are statement fragments 7 contained in the complaint at paragraph 31, there's not even a 8 complete sentence attributed to my client, Ms. Maxwell. That, 9 your Honor, has been found on numerous occasions to be 10 insufficient to state a cause of action for defamation . 11 Furthermore, the complaint does not state to whom any 12 such statements were made. There is a general allegation that 13 the statements were made, quote, to the media and public, but 14 no media is identified, no publications are identified . While 15 the complaint states at one point that it was published and 16 disseminated around the world, not a single publication is 17 mentioned or attached to the complaint . 18 And furthermore, the complaint fails to state where in 19 fact the statements were made. Although it does state the 20 statements were made in the Southern District of New York, it 21 attributes those sentence fragments to a press agent who is 22 admittedly located in London. 23 Finally, your Honor, there is a lot of confusion 24 contained in the paperwork with regard to the standard of 25 malice that must be pled . Again your Honor has found, and SOUTHERN DISTRICT REPORTERS, P.C . (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 6 of 23 5 GlETGIUA 1 numerous other Southern District Courts have found likewise, 2 that malice in this context is malice in the sense of spite or 3 ill will. Looking to the complaint, your Honor, there's not a 4 single conclusory or factually-supported allegation that would 5 give rise to a finding of malice. And that, your Honor, 6 likewise is fatal to the complaint . 7 Finally, in terms of pleading deficiencies, plaintiff 8 in this case has tried to allege defamation per se by claiming 9 her profession is as a professional victim. In other words, 10 ten days before she claims my client made statements about her, 11 plaintiff founded a nonprofit through her organization, through 12 her attorneys in Florida, called Victims Refuse Silence, and 13 thereby states that any attempt to impugn anything she says is 14 defamation per se . 15 There is no support in the case law for a profession 16 of being a victim, your Honor. And likewise, there's no 17 factual support to suggest, and the cases require, that the 18 statements attributed to my client, Ms. Maxwell, have anything 19 to do with her nonprofit organization, nor that my client was 20 even aware of an organization founded a mere ten days earlier 21 and which doesn't appear to have any actual business conduct 22 related to it . 23 So your Honor, I think for all those reasons, the 24 complaint is insufficiently pled and should be dismissed. 25 Our papers go on a little bit further, your Honor, to SOUTHERN DISTRICT REPORTERS, P.C . (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 7 of 23 6 GlETGIUA 1 also argue that to the extent any of these sentence fragments 2 can be pieced together, the statements, at most, are a general 3 denial. In other words, plaintiff admits in the complaint that 4 she started a media campaign against my client, she issued some 5 very salac i ous allegations against my client in the British 6 press and in some pleadings that she filed in Florida. And 7 after having done that, my client, she says, issued a statement 8 that the allegations are quote, unquote, untrue . 9 Repeatedly, cases both in New York State and federal 10 courts have found general denials are not actionable, that 11 individuals have a right, when they have been accused of 12 misdeeds in the press, to respond, so long as they don ' t abuse 13 that privilege. And by abuse of privilege, that means 14 including numerous defamatory extraneous statements about the 15 person to whom they are responding and/or excessively 16 publicizing their response. 17 In this case, your Honor, the statement the 18 allegations are untrue is about as plain vanilla as one can 19 find. There's no better way to issue a general denial than to 20 just say that the allegations are untrue, without more. 21 There's not a single reference to plaintiff herself. 22 Although, in opposition, plaintiff claims to have been 23 ca l led a liar, complains that she was called dishonest, she 24 doesn't actually point to any statement which contains those 25 words, nor any statement which actually refers to her as a SOUTHERN DISTRICT REPORTERS, P . C . (212) 805 - 0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 8 of 23 7 GlETGIUA 1 person, simply to the allegations which her client had issued, 2 and frankly, allegations which had been circulated in the 3 press . 4 So saying the allegations are untrue is tantamount to 5 a general denial, and that is one additional reason, your 6 Honor, that I think the complaint should be dismissed. 7 Thank you . 8 MS. McCAWLEY : Good morning, your Honor. May I 9 approach with a bench book? 10 THE COURT : Sure . 11 MS. MCCAWLEY : Thank you. 12 THE COURT: I think in duplicate . Do you have another 13 copy? 14 MS . MCCAWLEY : Sure, of course. 15 Good morning, your Honor, my name is Sigrid Mccawley, 16 I'm with the law firm of Boies, Schiller & Flexner representing 17 the plaintiff in the case, Virginia Giuffre. 18 With all due respect to my colleague, I think she read 19 a different complaint than the one submitted in thi s case. She 20 left out significant factual details from the complaint that 21 plead actual defamation. 22 This is an old story . A woman comes forth and finally 23 gets the courage to tell about the sex ual abuse she endured, 24 and her abusers come public and call her a liar and say her 25 claims are, quote, obvious lies. That quote is in our SOUTHERN DISTRICT REPORTERS , P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 9 of 23 8 GlETGIUA 1 complaint . 2 Your Honor, this is an actionable defamation case . 3 Fortunately for women who have been abused in this manner, the 4 law of defamation stands by their side . It does not allow 5 someone to publically proclaim they're a liar and issue 6 character assaults on them without ramifications. 7 After those statements were made, we filed this 8 defamation lawsuit . Virginia Giuffre was only 15 years old 9 when she was recruited by Maxwell to be sexually abused by both 10 Maxwell and Jeffrey Epstein, who is a convicted pedophile and 11 billionaire . She was harmed for many years before she finally 12 found her way to Thailand and escaped clear to Australia where 13 she hid out for ten years before the FBI interviewed her and 14 she made her statement public. 15 Your Honor, this is a very serious case of abuse. My 16 client never sued Ms. Maxwell until she came out and called her 17 a liar publically for claiming her allegations of sexual abuse 18 were false. That's actionable defamation. We have seen that 19 in cases recently, and I will walk you through those . 20 Now while this story may sound hard to believe, it 21 happened, and there were over 30 female childhood victims in 22 Florida alone that came forward and gave statements to law 23 enforcement about this same type of abuse. 24 Unfortunately, due to Epstein's vast wealth and power, 25 he was able to get off with a very light sentence . And his SOUTHERN DISTRICT REPORTERS, P . C. (212) 805 - 0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 10 of 23 9 GlETGIUA 1 co-conspirators were also part of that plea agreement, that 2 non-prosecution agreement, and were not prosecuted. That 3 agreement is being challenged by two other victims in Florida 4 in a case in front of Judge Marra case called the Crime 5 Vic t ims' Ri ghts Act case. 6 I want to mention that while my colleague didn't 7 mention it in her opening, she does mention it in her papers, I 8 contend that the order she referenced in her papers by Judge 9 Marra, which we included a copy of for you, has been 10 misrepresented. That order did allow my client -- on page 6 it 11 says, quote, Jane Doe 3 is free to assert factual allegations 12 through proper evidentiary proof should she identify a basis 13 for believing such details are pertinent to the matter. 14 So while the paper suggested she was deemed to have 15 impossible allegations or that those allegations were untrue, 16 that ' s absolutely not what the court said in Florida, so I want 17 to correct that for the record before we begin. 18 What we have here is a defamation case . As the Court 19 well knows, defamation -- this is a libel per se case where the 20 words were published in writing. And as you know, libel per se 21 is when a word tends to expose another to public hatred, shame, 22 contempt or ridicule . I see no other allegation that could be 23 worse than calling a sex abuse victim a liar . To lie about 24 sexual abuse has to be one of the most scornful things 25 available, and that is subject to defamation . SOUTHERN DISTRICT REPORTERS, P . C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 11 of 23 10 GlETGIUA 1 Now in the papers -- and I will just touch on this 2 briefly because my colleague did not touch on it significantly 3 here and I don't want to waste the Court's time, but she 4 alleged a number of privileges that she believes Ms . Maxwell 5 should be able to hide behind in order to preserve these 6 defamatory statements . 7 I impart on your Honor that a determination as to 8 whether any of those privileges apply would be premature at 9 this stage. That's your case, which is Block v . First Blood, 10 691 F . Supp . 685 . In that case you dealt with one of the 11 privileges she is asserting here, the prelitigation privilege, 12 and you found that it would be premature, even at the summary 13 judgment stage, to be analyzing whether or not that was 14 applicable . 15 So what we have here is qualified privileges being 16 asserted as to defamatory statements. The two qualified 17 privileges she asserts are the self-defense privilege and the 18 prelitigation privilege. So in other words, if the defamatory 19 statements survive, she says, nevertheless the privileges 20 preclude the case from going forward. 21 The self-defense privilege has been addressed by the 22 highest court of New York just as recent as this year, and 23 that ' s in the case of Davis v . Boeheim . And that was case 24 where the Syracuse basketball coach was accused by two victims 25 that were childhood victims who later as adults came forward SOUTHERN DISTRICT REPORTERS, P.C. (212) 805 - 0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 12 of 23 11 GlETGIUA 1 and set forth their allegations against him. One of his 2 colleagues came forth and called those victims liars publicly, 3 same thing that happened in this case . And the court there 4 said that the case cannot be dismissed, it has to proceed 5 forward, and they are entitled to prove those allegations were 6 false, that the victims were not liars, and indeed they were 7 subject to the abuse they were subject to . 8 Another case that is recent which I supplemented with 9 your Honor is the Cosby case. It ' s recent out of 10 Massachusetts, and very similarly there -- in fact, the 11 statements weren't even as strong as Ms. Maxwell's statements 12 here. In our complaint, Ms. Maxwell calls our client's 13 allegations of sexual abuse, quote, obvious lies, issued by 14 press release nationally and internationally to the media . And 15 we do cite to the media that it is sent to. That's in 16 paragraph 30, 36 and 37, international media, national media 17 and the New York Daily Post, who interviewed Ms . Maxwell on a 18 New York street. So that is alleged in detail in our . 19 complaint. 20 But in Cosby the court said, quote, suggestions that a 21 plaintiff intentionally lied about being sexually assaulted 22 could expose that plaintiff to scorn and ridicule, and 23 therefore, Bill Cosby ' s statements could be found to have a 24 defamatory meaning, and the court allowed the case to proceed 25 past the motion to dismiss stage. SOUTHERN DISTRI CT REPORTERS, P . C . (212) 805 - 0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 13 of 23 12 GlETGIUA 1 We also have the McNamee v. Clemens case which you may 2 be familiar with. It's another New York case involving Roger 3 Clemens where he had been alleged to have engaged in steroid 4 use. His trainer stated that publicly. He came forward and 5 called his trainer a liar publicly, and the court found that 6 that statement that he is a liar was actionable defamation that 7 survived the motion to dismiss, because publicly proclaiming 8 someone a liar is actionable defamation. It is not mere 9 denial, it is actionable defamation . 10 So those are the cases I would like to direct the 11 Court's attention to. Again, on page 10 of our opposition we 12 have a litany of cases that deal with the issue of calling 13 someone a liar and that being actionable defamation. 14 She also asserts the prelitigation privilege, and that 15 is a privilege addressed in your Block v . First Blood case. 16 That privilege is intended to protect communications between 17 parties, typically attorneys, in advance of litigation in order 18 for them to narrow the scope of the litigation or to negotiate 19 a resolution in advance of litigation. That prelitigation 20 privilege does not cover public statements by Ms. Maxwell's 21 hired press agent that are given to the national and 22 international media for the purposes of defaming my cl i ent, 23 calling her allegations of sexual abuse untruths and cal l ing 24 them, quote, obvious lies. So that prelitigation privilege 25 does not apply. SOUTHERN DISTRICT REPORTERS, P . C. (212) 805 - 0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 14 of 23 13 GlETGIUA 1 The Khalil case, which is cited in the defendant's 2 brief, actually has a great passage in there that describes if 3 the allegation is made for an improper purpose, in other words, 4 if it is made for a wrongful purpose or to harass or seek to 5 press or intimidate the victim, then it is not something that 6 the defendant can avail themselves to as a privilege . 7 Now, just briefly, the opposition also stated that our 8 complaint is deficient in other manners; for example, that we 9 haven't properly alleged the to whom, as I referenced . You can 10 look at paragraphs 30, 36 and 37 to see that. That is a 11 technical pleading deficiency that she is raising there. We do 12 meet the standards of Twombly. We have pled detailed facts 13 that our client was sexually abused as a minor child. We pled 14 other facts about that abuse . And Ms. Maxwell intentionally 15 and maliciously came out and called her a liar in order to 16 protect her own self . 17 So that is what we have put in our complaint. The 18 Hawkins case that she references and the Cruz case that she 19 references are vastly different . In Cruz there wasn't even an 20 . allegation of defamation, and the court was reading into the 21 complaint whether or not there could have been defamation. 22 Here we stated specifically who made the statement, when she 23 made the statement, where she made the statement, why she made 24 the statement. That is all we need to do. It's more than 25 sufficient to plead a case of defamation in this instance. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 15 of 23 14 GlETGIUA 1 With respect to the allegations that we haven ' t pled 2 properly libel per se, I want to be clear we pled that in two 3 ways. And the case law is a case cited in the defendant's 4 brief, and it's Jewell, and it does a very good job of parsing 5 out the difference between slander and libel, and there is a 6 difference in the case law, as your Honor knows. 7 In the instance of libel, the written words, Cardozo 8 has said, it stings, it stings longer, so therefore, in 9 pleading libel per se, you don ' t have to plead special damages 10 in the way that you do for slander. 11 The Matherson case, which is out of New York, also 12 articulates that . The difference, it says, quote, on the other 13 hand, a plaintiff suing on libel need not plead or prove 14 special damages if the defamatory statement tends to expose the 15 plaintiff to public contempt, ridicule, aversion, or disgrace. 16 And that is exactly what we have pled in this case, that the 17 statements that our client lied about the sexual abuse she 18 endured as a minor were statements that exposed her to that 19 public contempt and ridicule. 20 She has also pled libel per se with respect to her 21 profession. While my colleague may make light of the fact that 22 she is involved in helping victims that -- people who are 23 victims of sexual trafficking, that is what she has dedicated 24 her life to doing. And to come out and publicly proclaim her a 25 liar about sexual abuse harms the nonprofit and harms the work SOUTHERN DISTRICT REPORTERS, P . C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 16 of 23 15 GlETGIUA 1 she has been doing. She has been harmed personally by saying 2 her claims are, quote, obvious lies, and she has been hurt 3 professionally in that manner, and we allege both things in our 4 complaint . 5 Your Honor , Virginia has been beaten down many times 6 in her life, but the law of defamation stands at her side. I 7 pray upon you that you will consider the complaint and not 8 dismiss it , because her claims should be able to be proven in 9 this Court . Thank you. 10 THE COURT: Thank you very much. 11 Anything further? 12 MS . MENNINGER : If I may, your Honor . 13 Again, plaintiff comes before you claiming she has 14 been called a liar . There is no statement attributed to my 15 client, in the complaint or elsewhere, in which my client has 16 called plaintiff a liar . There are three sentence fragments 17 contained in the comp laint, the allegations against Ms . Maxwell 18 are untrue , and that her claims are obvious lies. 19 Your Honor, it is a meaningful distinction . I can 20 explain a little bit of the background here. Plaintiff came 21 forward and gave an interview in the press in 2011 claiming 22 that my client was somehow involved with Mr . Epstein's sexual 23 abuse of her. She gave an exclusive interview to a British 24 newspaper in which she made that allegation, plaintiff did, and 25 was paid for it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 17 of 23 16 GlETGIUA 1 My client issued a general denial in 2011 saying that 2 the allegations were untrue. At that time, plaintiff said 3 that, although she had been in contact with the likes of Prince 4 Andrew in London and Bill Clinton and other famous people, 5 there was no suggestion that those people had engaged in any 6 kind of improper sexual contact with her . 7 Fast forward a few years . Some other women who 8 claimed they were victims of Mr. Epstein ' s abuse filed a 9 lawsuit in Florida and they asked the court to undo a plea 10 agreement that had been entered into by the U. S . attorney's 11 office down in Florida or that the U. S . attorney's office 12 somehow worked with the state authorities in crafting, and 13 those two other women, not plaintiff, litigated for I think 14 seven years now whether or not they should have been informed 15 earlier about whatever plea agreement was going to go on with 16 Mr. Epstein. 17 Well, December 30 of 2015, plaintiff filed a motion to 18 join that Victims' Rights Act litigation, and in her motion to 19 join the Victims' Rights Act litigation she filed a 20 declaration, in which, as I understand it thirdhand based on 21 the judge down there's order, she claimed to have been involved 22 in sexual relations with Prince Andrew, with world leaders, a 23 former prime minister of some country or other, Mr. Alan 24 Dershowitz . She made a number of spurious allegations, and one 25 of them involved my client, Ms. Maxwell. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 18 of 23 17 GlETGIUA 1 Well, within minutes of filing that motion to join 2 that action, lo and behold, her story hits the British press. 3 Whether or not that was at her lawyer's instigation, I don't 4 know, but they have been courting the press in a number of 5 ways, so I wouldn't be surprised . 6 The press comes calling and asked my client and 7 Mr . Dershowitz and Prince Andrew and everyone else whether any 8 of the allegations contained in this legal pleading are true. 9 Buckingham Palace issued a statement flatly denying the claims 10 made by plaintiff here. Mr. Dershowitz came out even stronger 11 and not only flatly denied it but did in fact call her a liar 12 and said, among other things, if she lied about me, she 13 probably lied about all these other world leaders that she 14 claims she was involved with at the age of 17 and 18, and that 15 the story dates back to '99 when she claims these activities 16 occurred. And so he came out and actually called her a liar . 17 Buckingham Palace said her claims were absolutely 18 untrue. At the end of one article, in which the two comments 19 about plaintiff were contained , is a statement attributed to my 20 client, Ms. Maxwell, and her statement reads, the claims 21 against Ghislaine Maxwell are untrue . She has now made 22 additional statements about world leaders, and those claims are 23 obvious lies. So that part about obvious lies come after the 24 part about claims against world leaders and famous politicians 25 and the like . SOUTHERN DISTRICT REPORTERS, P.C . (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 19 of 23 18 GlETGIUA 1 Well, I tried to go to the Florida action to find 2 where these allegations were that apparently plaintiff believes 3 my client's statement was in relation to . And guess what? 4 Judge Marra down in the Southern District of Florida has 5 stricken the declaration from public access. He has stricken 6 the actual paragraphs making all of these allegations, and has 7 restricted from public access the documents that contained the 8 allegations . And he issued an order, and I attached that 9 order, because I believe the Court can consider it taking 10 judicial notice, to my declaration here on the motion to 11 dismiss . 12 In the order, just so we ' re all clear, I'm not 13 misrepresenting what happened, as I was just accused doing, 14 Judge Marra held, after describing what he called lurid 15 allegations, he found they were impertinent and immaterial to 16 the motion to join the Victims' Rights Act filed by plaintiff . 17 He said that they concerned non-parties, including my client, 18 who was not there and able to defend herself within the 19 litigation, and he denied her request to join that action 20 finding that she waited a long time . While she may be a 21 witness to things that are concerned down there, she does not 22 need to join the action in order to assert rights that the 23 other plaintiffs down there are already asserting. 24 Then he goes on in the order to remind her counsel of 25 their Rule 11 obligations to only include pertinent materials. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 20 of 23 19 GlETGIUA 1 And he was not denying they would ever be able to, but seems to 2 seriously question whether or not admissible non-cumulative 3 evidence of the things that were claimed would ever be heard in 4 his court . 5 So I don't actually have a copy of whatever it is that 6 was claimed down there because it ' s not publicl y available, and 7 it certainly was not mentioned in the complaint, wasn't 8 attached to the complaint, it's just somewhere out there that 9 the press has picked up on and published . 10 In the meantime, Mr . Dershowitz is now involved in 11 ongoing battles with plaintiff's lawyers down in Florida . They 12 cross claimed one another for defamat i on . And she ' s been 13 participating in that litigation as a non-party as well, 14 although it concerns her attorneys and the same exact 15 allegations. 16 So while others have called her a liar, notably 17 Mr. Dershowitz, and others have denied claims that plaintiff 18 has made, including Buckingham Palace, and while Judge Marra 19 down there has found her claims impertinent and immaterial to 20 the allegations going on in Florida, Ms . Maxwell has not 21 actually ever called her a liar. 22 And your Honor, all of these cases that plaintiff 23 cites to, Davis v . Boeheim, McNamee v . Clemens, all of those 24 cases had complaints which had attached to them the actual 25 statements at issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 21 of 23 20 GlETGIUA 1 I think in the McNamee v. Clemens case there were some 2 27 exhibits attached to the amended complaint where Mr . Clemens 3 had been on 60 Minutes and given statements to reporters and 4 gone on at length calling the plaintiff in that case, 5 Mr. McNamee, a liar , calling him a liar 25 ways to Sunday, 6 talking about his financial motives, his potential financial 7 gain, et cetera . 8 Likewise, in the Davis v . Boeheim case, Mr. Boeheim 9 gave a press conference in which he called the accusers liars. 10 He questioned their financial incentives following the Sandusky 11 case to be coming forward then, and he went on at length about 12 all of the reasons why they might be coming forward now with 13 their, quote, unquote lies . 14 In each of those cases, McNamee v. Clemens and Davis 15 v. Boeheim, the New York Court of Appeals, as well as the 16 Federal Court in the Eastern District of New York, made clear 17 that the one thing that is not actionable is a general denial . 18 And then they talk about why Mr. Boeheim's comments and 19 Mr . Clemens ' comments went well beyond what anyone might 20 consider a general denial . And fortunately, those cases 21 actually had records which included the statements, included 22 the articles in which the statements were made, so the Court 23 could engage in the sort of analysis that it must, that is, to 24 decide whether, in context, the statement has a defamatory 25 meaning. SOUTHERN DISTRICT REPORTERS, P . C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 22 of 23 21 GlETGIUA 1 So I think even now, saying that my client called her 2 client a liar is just not supported by a single fact in the 3 complaint. While the complaint makes conclusory statements 4 like it was a campaign questioning her dishonesty and all of 5 that, when you get right down to the actual statements, which 6 this Court has held on numerous occasions must actually be 7 spelled out in a defamation case, the only statements are, 8 quote, sentence fragments like allegations against Ghislaine 9 Maxwell are untrue. 10 And by the way, looking at those news articles, one 11 might see that they actually are talking about allegations that 12 have lodged in the British press. They don't refer to 13 Ms. Roberts, as she was then known, they don't refer to 14 anything about her, they don't call her a liar, they don't 15 question her financial motives, although I ' m sure she has some . 16 So if you look at the cases Davis v . Boeheim, McNamee v. 17 Clemens, you will see Ms. Maxwell's statements, even to the 18 extent they're alleged, fall well within the general denial 19 privilege . 20 I think it's inaccurate to quote, with regard to the 21 prelitigation privilege, the statements attributed to 22 Ms. Maxwell that reserved her right to seek redress from the 23 British press for the repetition of what she said were untrue 24 allegations. And that is something that, under British law, 25 one must assert or waive. So if you don't, under British law, SOUTHERN DISTRICT REPORTERS, P . C . (212) 805-0300  Case 1:15-cv-07433-LAP Document 1325-18 Filed 01/04/24 Page 23 of 23 22 GlETGIUA 1 put the press on notice that you are challenging the veracity 2 of statements that the British press is publishing, then you 3 will have been deemed to have waived your right to do so in the 4 future . 5 We cited Khalil v . Front, which is a New York Court of 6 Appeals case from last year . It was actually affirming the 7 dismissal of a case on a motion to dismiss . So while plaintiff 8 claims that privileges like this can ' t be decided at the motion 9 to dismiss stage, the New York Court of Appeals directly found 10 otherwise . And there they said that if a statement is made in 11 anticipation of litigation, whether or not -- I think they used 12 the word "contemplated" litigation, whether or not the 13 litigation actually occurred is not material, but if they are 14 made in anticipation of potential litigation then they are 15 entitled to the prelitigation privilege. 16 So not only do I believe that the statements 17 themselves are non-defamatory general denials, but insofar as 18 they were issued to put the British press on notice, that 19 repetition of them may g i ve rise to litigation. They also 20 should be afford the prelitigation privilege that the New York 21 Court of Appeals has recognized . Thank you . 22 THE COURT : Thank you very much . I will reserve 23 decision . 24 o0o 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300