Giuffre v. Maxwell

Filing 872

OPINION: Because of the existence of triable issues of material fact rather than opinion and because the pre-litigation privilege is inapplicable, the motion for summary judgment is denied. For the reasons set forth above, the motion for summary judgment is denied. The parties are directed to jointly file a proposed redacted version of this Opinion consistent with the Protective Order or notify the Court that none are necessary within one week of the date of receipt of this Opinion. Motions terminated: denying #540 MOTION for Summary Judgment, filed by Ghislaine Maxwell. (Signed by Judge Robert W. Sweet on 4/27/2017) (ap) Modified on 4/28/2017 (ap).

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rr-- --nl ;y usnc : 1 D' ct rt:. r i. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK l ELI:CT 1 i, DOC #: ----------------------------------------1 i T< '/\ f .1_,Y FILED ~ VIRGINIA GIUFFRE, Giuffre, 15 Civ. 7433 -againstOPINION GHISLAINE MAXWELL, Maxwell. ----------------------------------------x A P P E A R A N C E S: Counsel for Giuffre BOIES, SCHILLER & FLEXNER LLP 401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301 By: Sigrid S. Mccawley, Esq. Meredith L. Schultz, Esq. Counsel for Maxwell HADDON, MORGAN AND FOREMAN, P.C. 150 East Tenth Avenue Denver, CO 80203 By: Laura A. Menninger, Esq. Jeffrey S. Pagliuca, Esq. l _ 1 D/\ 'FiLS _;_~Z1l .-I i / ------- / Sweet, D.J. The defendant Ghislaine Maxwell ("Maxwell" or the "Maxwell") has moved pursuant to Rule 56, Fed. R. Civ. P., for summary judgment dismissing the complaint of plaintiff Virginia L. Giuffre ("Giuffre" or the "Giuffre") alleging defamation. Upon the facts and conclusions set forth below, the motion is denied. The contested facts derived from discovery subject to the Protective Order of March 17, 2016 have been redacted. I. Prior Proceedings Since the filing of the complaint on September 21, 2015 , setting forth Giuffre's claim of defamation by Maxwell, this action has been vigorously litigated, as demonstrated by the 704 docket entries as of March 8, 2017. At issue is the truth or falsity of a January 2015 statement issued by Maxwell. Discovery has proceeded, a joint pretrial order has been filed, and the action is set for trial on May 15, 2017. The instant motion was heard and marked fully submitted on February 16, 2017. 2 II. The Facts The facts have been set forth in Maxwell ' s Memorandum of Law in Support of Maxwell ' s Motion for Summary Judgment , Southern District of New York , Local Rule 56.1 ; Giuffre ' s Statement of Contested Facts and Giuffre's Undispu t ed Facts ; and Maxwell ' s Reply to Giuffre ' s Statement of Contested Facts and Giuffre's Undisputed Facts pursuant to Local Civil Rule 56 . 1 . They are not in dispute except as noted below . • I ." , . • • 4 L --- i I ------- 5 • I • 6 7 -· 8 • 9 - 10 11 12 I I I I 13 • - 14 • 15 16 17 .................... ·- 18 19 - 20 21 .. --.. ---1-22 23 - 24 25 .. 26 27 28 29 30 - 31 - 32 - 33 34 - 35 36 37 • 38 - 39 - 40 41 42 43 - 44 45 46 47 48 49 i 50 51 •• III. The Applicable Standard Summary judgment is a ppr o priate only where "t here is no genuine issue as to any material fact and . . t he moving party is entitled t o a judgment a s a ma tte r of law." Fed. R . Civ . P. 56(c). "[ T]he substantive l a w will ide ntify which facts are material. " Anderson v . Liberty Lobby , Inc. , 477 U.S. 242 , 248 (1986) . A dispute i s "genuine" if ~t he evidence is such that a reasonable jury cou l d re turn a verdict for t h e nonmoving party . " 52 Id. The relevant inquiry on application for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. A court is not charged with weighing the evidence and determining I I its truth, but with determining whether there is a genuine issue for trial. Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F . Supp. 1205, 1212 (S .D.N.Y. 1990) (quoting Anderson, 477 U.S. at 249). "[T]he mere existence of some alleged factual dispute between the parties will not def eat an otherwise properly supported motion for surrunary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247- 4 8 (emphasis in original). While the moving party bears the initial burden of showing that no genuine issue of material fact exists, Atl. Mut. Ins . Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005) , in cases where the non-moving party bears the burden of persuasion at trial, "the burden on the moving party may be discharged by 'showing' -that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "It is ordinarily sufficient for the movant to point 53 to a lack of evidence . on an es sential element o f t he non- movant' s c l aim . [T]he n onrnoving party must [t hen ] come forward with admissible evidence sufficient to raise a genuine issue of fact for trial " 53 6 F . 3d 14 0 , 145 ( 2d Cir . 2008) Jaramillo v . Weyerhaeuser Co ., ( i nternal citations omitted) ; see also Goenaga v. March of Dimes Birth Defects Found., 14, 18 (2d Cir. 1995 ) 51 F. 3d ("Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact , the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in his favor"). IV. The Motion for Summary Judgment on Republication Grounds is Denied Maxwell has moved for s ummary judgment dismissing Giuffre ' s complaint on the grounds that Maxwell is not liable for the repub l ication of her Press Release by the media. Because as a matter of law the issuer of a press release is responsible for its publication, the motion is de n ied. In New York , liab ility for a republication "must be based on r eal authority to influence the final product ." Davis 54 v . Costa - Gavras, 580 F . Supp. 1082, 1096 (S . D. N. Y. 1984) ; see also Hoffman v . Landers , 146 A.D.2d 744, Dep ' t 1989) 747 (N.Y. App. Div . 2d ("One who makes a defamatory statement is not responsible fo r its recommunication without his authority or request by another over whom he has no control ."). Where a defendant "had no actual part in composing or publishing," he cannot be held l iable "without disregarding the settl ed rule of law that no man is bound for the tortious act of another ove r whom he has not a master 's power of control ." Davis , 580 F . Supp . at 1096 (internal quotation marks and citation omi tted) . The New York Court of Appea ls surruna ri zed New Yo r k's republica t ion liability standard in Geraci v . Probst , 938 N.E.2d 917 (N .Y. 2010) , stating that one who . . prints and publishes a libel[] is not responsible for its voluntary and un justifiable repetition , without his authority or request, by others over whom he has no control and who th ereby make themse lves liab l e to the person injured , and that such r epet ition cannot be co nsidered in law a necessary, natural an d probable consequence of the original slander o r libel . 938 N. E . 2d at 921 (internal quotation marks and citation omitted) . Thus , "concl usi v e evidence of l ack of a ctual authority [is] sufficiently dispositive that the [court ] but to dismiss the case . . '" Davis, 55 ' ha[s ] no option 580 F . Supp. at 1 096 (quoting Rinaldi v . Viking Penguin, Inc., 420 N.E.2d 377, 382 (N . Y . 1981)). However, New York law assigns lia bil i ty to individuals for the media's publication of press releases . New York appellate courts have held that an individual is liable for the media publishing that individual's defamatory press release. See Levy v . Smith , 132 A.D.3d 961, 962-63 (N . Y. App . Div. 2d Dep ' t 2015) ("Generally, [ o] ne who makes a defamatory statement is not responsib le for its recommunication without his authority or request by another over whom he has no control . however, . Here, . . the appellant intended and authorized th e republication of the allegedly defamatory content of the press releases in the news articles."); see also RESTATEMENT (SECOND) OF TORT S § 576 (1977) ("The publication of a li bel or slander is a legal cause of any special harm resulting from its repetition by a th ir d person if . . . the repetition was authorized or intended by the original defamer, or . the repet iti on was reasonably to be expected.") The facts as set forth above establish that Maxwell approved the Press Release. The Press Release was sent to between six and 30 media representatives by Gow as an employee 56 of Acuity Reputation, the public relations firm hired by Maxwell. The initial sentence of the Press Release - "Please find attached a quotable statement on beha lf of Maxwell" communicates Maxwell 's authorization for the media recipients of the Press Release to publish it. See Nat 'l Puerto Rican Day Parade , Inc . v. Casa Pubs., Inc., 79 A.D.3d 592 , 595 Div. 1st Dep ' t 2010) (N.Y. App. (affirming the refusal to dismiss defamation counts against a defendant who '' submitted an open letter that was published in [a] newspaper , and that [t he defendant] paid to have the open letter pub lis hed," finding that t h e defendant "authorized [the newspaper] to recornmunicate h i s statements ." ) . Maxwell has cited Geraci v. Probst i n support of her position, but Geraci is distinguishable from the instant action . In Geraci, the defendant sent a letter to the Board of Fire Commi ssioners , and, more t h an three years later , a newspaper pub lished the letter. The court held that the defendant was not liab le for t hat belated publi cation, "made years later wit ho ut his knowledge or partici pation ." 938 N.E . 2d at 919 . Here , unlike in Ge ra ci , the Press Release was not published "w ithout [her] authority or request, " but rather with Maxwell's authority and 57 by her express request. Gow's testimony establishes Maxwell's authority and control over the Press Release: Q. When you sent t hat email were you acting pursuant to Ms. Maxwell's retention of your services? A. Yes, I was *** Q. The subject line does have "FW" which to me indicates it 's a forward. Do you know where the rest of this email ch ain is? A. My understanding of this is: It was a holiday in the UK, but Mr. Barden was not necessarily accessible at some point in time, so this had been sent to him orig inall y by Ms . Maxwell, and because he was unavailable , she forwarded it to me for immediate action. I therefore respond, "Okay, Ghislaine, I'll go with this." It is my understanding that this is the agreed statement because the subject of the second o ne is "Urgent, this is the statement" so I take that as an instruction to send it out, as a positive command : "This is the sta t ement ." Maxwell also cites Davis v. Costa-Gavras, involving a libel claim against an autho r who wrote a book about a mi lita ry coup in Chile . 580 F . Supp. at 1085. Years after the author published the book , a third - party publishing house republished the book in paperback form and a third-party filmmaker released a movie based on the book. The book author did not actually participate in the republications , though h e was aware of the 58 projects. The court held that t he author of the book could no t be held liable for the republications, explaining that a "party who is 'i nnocent of a ll complic ity' in the publication of a libel cannot be held accountable." 580 F. Supp. at 1094 (internal citations omitted) . The court further noted that "active participation i n impleme nting the republication resurrec ts the liability." Id. Likewise , i n Karaduman v. Newsday, In c ., 416 N.E . 2d 557 (1980), also cited by Maxwell, the court held that reporters of a series of articles on narcotics trade "cannot be held personally l iab le for injuries arising from [the] subsequent republication in book form absent a showing that they approved or participated i n some other manner in the activities of the thir d -party republisher." Id. at 559560. However, the court exp l icitly noted th at this resu l t was required because "the record [wa]s barren of any concrete evidence of the reporters' involvement in the republication of the newspaper series ." Id. at 540. Here, there is evidence in the record that Maxwell "actively participatedn in inf luencing the media to publish the Press Release, Davis, 580 F. Supp. at 1094, and "approved" of and sought the publication of the press release, Karaduman, N.E.2d at 560 . Maxwell retained a public rela t ions media 59 416 specialist. The Press Release was sent by Maxwe l l 's express reques t . Gow's testimony about the process lead i ng up to the dissemination of the Press Release indicates that Maxwell did , indeed, " authorize or intend" for the media recipients to publish the statement . Because there are sufficient facts to demonstrate Maxwell's authority and control over the publication of the Press Release, Max well's l iability for the Press Re l ease ' s publication survives the motion for summary judgment. Maxwell has additionally asserted that subjecting her to liabil ity for republication is "particularly unfair " because excerpts of the Press Release, rather than the who l e statement, were published . Def .'s Reply at 9 . Maxwell cites to Rand v . New York Times Co ., 75 A.D.2d 417 (N.Y. App. Div . 1st Dep't 1980) , in which a newspaper paraphrased the defendant's opinion, essentially "excis[ing] the opinion from the context in which it was given." Id. at 424. No similar alteration, sanitization, hyperbolizing , or paraphrasing of Maxwell's statements has been established here. Nor does the record establish that any statements of Maxwell 's were taken out of context; rather , they were directly quoted, accurately and unchanged . The publicat ion of Maxwell's statement that Giuffre's claims are "obvious lies" 60 does not distort or misrepresent the message Maxwell intended to convey to the public with the Press Release. Because the purpose of the issuance of the Press Release was publication , Maxwell is liab le for its content and t h e motion for sumrnary judgment on the grounds of n on-liability fo r republica tion is denied . V. The Motion for Summary Judgment to Dismiss the Defamat ion Claim on the Ground of Substantial Truth is Denied Maxwell has asserted that the Press Release is substanti a l ly true and that the defamation claim s hould t h e r efore be dismi s sed . See Def .' s Br. at 39 . Whether or no t Giuffre l i ed about Maxwell 's involvement in the events that Giu f fre h a s alleged took place is t h e intensely contested factual i s sue that is the foundation of t h is act i on . Accordingly , summa r y judgme n t is not appropriate . See Mitre Sports Intern . Ltd . v . Home Box Office , Inc ., 22 F . Supp . 3d 24 0 , 255 (S . D. N. Y. 20 1 4) (denying summa r y judgment because it wo uld require the Cou r t to decide di s puted facts to determine whethe r the s tatemen t at is s ue wa s substantially t r ue) ; Da Silva v . Time I nc ., 9 08 F . Supp . 1 84 , 187 (S . D. N. Y. 1995) (denying mot i on fo r summa ry judgmen t becaus e there was a genuine issue of 61 material fa c t as to whether defamatory photo and caption were true). Under New York law, "truth is an absolute, unqualified defense to a civil defamation action" and "'substantial truth' suffices to defeat a charge of libel." Jewell v. NYP Holdings, Inc . , 23 F. Supp. 2d 348, 366 (S . D.N . Y. 1998) (internal quotation marks and citations omitted). A statement is substantially true if the statement would not "have a different effect on the mind of the reader from that which the pleaded truth would have produced . " Id. (quoting Fleckenstein v. Friedman , 193 N. E . 537, 538 (N . Y. 1934)). Thus, " i t is not necessary to demonstrate complete accuracy to defeat a charge of libel. I t is only necessary that the gist or substance of the challenged statements be true . " Printers II, Inc . v . Professionals Publishing , Inc ., 784 F.2d 141, 146 (2d Cir. 1986) ; see also Korkala v. W. W. Norton & Co., 155 ( S . D. N. Y. 198 5) 618 F .Supp . 152, ("Slight in ac curacies of expression are immaterial provided that the defamatory charge is true in substance . " ) (internal quotation marks and citation omitted); Sharon v . Time, Inc., 609 F . Supp. 1291, 1294 (S.D . N. Y. 1984) ("Defe ndant is permitted to prove the substantial truth of this statement by estab l ishing any other proposition that has the 62 ~------------------- --- ------···········-· same 'gist' or 'sti ng ' as the original libel , that is , the same effect on the mind of the reader."). The Honorable Lo retta A . Preska has noted that cases addressing whether a statement is substantially true "fall along a broad spectrum." Je ivell, 23 F. Supp. at 367. There are cases in which a statement is non-actionable because it is completely true. See, e.g., Carter, 233 A. D.2d 473 , 47 4 (N .Y. App. Div. 2d Dep ' t 1996 ) (cl aim that defendant committed libel by i nforming the authorities that p l aintiff was endorsing checks made payable to the defendan t a nd depositing them in plaintiff's account held non-actionable where plaintiff had in fact endorsed checks made payable to the defendant). There are cases where "o ne struggles to identify any area of ambiguity as to truth." Jewell, 23 F. Supp. at 368; see, e.g., Miller v . Journal-Ne1vs, 211 A.D.2d 626 , 627 (N . Y . App . Div. 2d Dep' t 1995) (statement that plai n tiff was "suspended" substantially true where p l aintif f was placed o n "administrative leave"). There are cases where the line between the statement and th e admitted truth is more tenuous, but the overall "gi st" cannot be said to be substantially different. See, e.g., Guccione v . Hustler Magazine, Inc., 800 F.2d 298, 302-03 (2d Cir. 1986) (holding that statement which implied that . plaintiff was then currently an adulterer was substa ntially true 63 where plaintiff h ad ceased being an adulterer but had "unabashedly commi tt ed adultery" for thirteen of seventeen years) . Finally , there are " those cases in which a defendant simply asks too much in asserting that a statement is substantially true because the differe n ce between the t wo is plainly substantial ." Jewell, 23 F. Supp. at 368 . For example, the court in Da Silva , 908 F. Supp . at 186-87 , held that a pho t ograph of plaintiff which identified he r as a prostitute was not s ubst antially true where the plaintiff had been a prostitut e for some six years but was not at the time of pub l ica ti on . After reviewin g this spectrum of cases , the facts upon which Maxwell b as es her argument are insufficient to allow this Court to find substantial truth as a mat ter of law. A ma t erial dispute of fact exists as t o t h e "admitted trut h" or the "real i ty" in this case . The details and significance of the f a cts offered are highly contested, and therefore cannot e stablish the "substantial truth" of the Pres s Release . "[R ] easonable jurors could conclude that the statements 64 are not sub s tantially true. " Boehner v. Heise, 734 F . Supp . 2d 389 , 399 (S . D. N.Y . 2010). The motion for summary judgment to dismiss the defamation on the ground o f substantial truth i s denied as not having been e s tabli s hed by und i sputed material f a cts . VI. The Defamation Claim is Not Barred by New York Law Maxwell has moved to dismiss t h e complaint on the ground that the Press Release i s opinion and protected by the pre-litigation privilege under New York law. Because New York law does not support Maxwell ' s pos i tion , t h e motion for summary judgment based on the characterization o f the Pre ss Re l ease as opinion and as protec t ed by a p r e-litigat ion privilege is denied . 1. The Press Release is Not Opinion . As previously held , M xwell 's s tatement that Giuffre ' s a claims of sexual assault are lies is not a n exp r e ss ion of opinion : 65 First, statements that Giuffre ' s claims ' against [Maxwell] are untrue ,' have been ' shown to be untrue,' and are 'obvio u s l ies' have a specific and readily unders tood factual meaning : that Giuffre is not telling the truth about her histo r y of se xua l abuse and [Maxwel l ]'s r ole , and that some verifiable investigation has occurred and come to a defin itive c on c lusion proving t ha t fact . Second , these statements (as they themse l ves a l lege), are capabl e of being p ro ven true or fals e, and therefore constitute ac ti o n ab le fact and not opinion. Thi rd, in t hei r f u ll context , whi l e [Maxwe l l] 's statements have the effect of generally de n ying Giuffre 's story, they also clearly con sti tute fact to t he reader. Giuffre v. Maxwell , 165 F. Supp . 3d 147 , 152 (S . D. N.Y. 2016) . This Court further concluded that [Gi uff re] ca nno t be making c l aims shown t o be untrue th a t are obvious lies without being a liar. Furthermore, to suggest an individu a l is not t elling the truth abou t her history of havi ng b e en sexua ll y assau lted as a minor constitutes more than a general denial, i t al leges something deeply distu rb ing about the character of an indiv i dua l wil li ng to be publ ic ly di sh onest a bout such a reprehensible crime . [Maxwe ll] 's statements clear l y imply that the denial s are based on facts separate and contradi c tor y to those tha t [Giuffre] ha s alleged . Id. Maxwell argues that th e " con text " of the ent i re statement "tested against the understanding of the average reader " should be that of a pr ess rele ase as a whole being read only by journalists . Def.'s Br . at 22 (quoting Aronson v . Wiersma , 483 N.E.2d 1138 , 1139 (1985)). Ho wever , the ultimate 66 aud ience for a press release is th e publ i c. The motion to dismiss op i nion clearly addressed this issue: Sexual assault of a minor is a clear-cut issu e ; either transgression occurred or it did not . Either Maxwell was involved or she was not. The issue is not a matter of opinion, and there cannot be differing unde rstandings of the same facts that justify diametrically opposed opinion as to whether Maxwell was involved in Giuffre's abuse as Giuffre has claimed. Either Giuffre is telling the trut h about her story and Maxwell's involvement, or Maxwell is telling the truth and she was not involved in the trafficking and ultimate abuse of Giuffre . Giuffre , 165 F. Supp. at 152 . Maxwell has urged that these conclusions at the motion to dismiss stage should be revis ited and revised when considering the surrunary judgment motion sinc e t he standard for decid ing a Rule 12(b) (6) motion is different from the standard for deciding a Rule 56 mo t ion . In deciding a 12(b) (6) mo t ion, the court must accept as true the factual allegations and draw all inferences in the plaintiff's favor ; a plaintiff need only state a claim that is "plausible on its face ." Id . at 149 (internal quotation marks and citation omitted). In co n trast, for a Rule 56 motion, the pl aintiff defending th e mo tion may not " rest o n [the] allegations" in her complaint. Anderson, 47 7 U.S. at 249 . 67 In deciding its moti on to dismiss opinion, the Court relied on Davis v . Boeheim, 22 N. E.3d 999 (2014), and held that the three allegedly defamatory statements in the Press Release have a specific and readily understood factual meaning , are capable of being proven true or false, and "clearly constitute fact to the reader." Giuffre, 165 F. Supp . at 152 . The Court determined that "[t] he dispositive inquiry" for purposes of deciding whether an allegedly defamatory statement is fact or nonactionable opinion is whether "a reasonable reader could have concluded that the statements were conveying facts about the plaintiff ." Id. at 151 (internal quotation marks and citation omitted) . To answer th at inquiry, three factors enumerated in Davis were applied. See id . Thes e three factors are the same as the four factors in Immuno AG v. Moor - Jankowski, 567 N.E.2d 1270 (N . Y. 1991) ; the difference is that the Davis court collapsed the Immuno AG's third and fourth factors into one. See Davis, 22 N. E.3d at 1005 . "[T]he critical aspect of the inquiry, as articulated in the third factor set forth above , is to view the statements in context. " Jewell, 23 F . Supp. 2d at 377. This contextual analysis "proceeds on two levels, the 'broader social setting' of the statements, as well as their 'immediate context."' Id . (cit ing Immuno, 567 N. E.2d at 1280). 68 Maxwell acknowledges that the Court properly applied Davis at the motion to dismiss sta ge, but argues that the third factor, especially , benefits from the evidence presented in the motion for summary judgment. See Def.'s Br. at 32. I n other words, Maxwell argues t ha t "the Court did no t have the 'ful l con te xt '" of the Press Release or t he "broader social context and su rr ounding circumstances of the statement." Id . At the motion to dismiss stage , the text of the Press Release had not yet been produced , nor had there been production of emai l s or deposition testimony regarding the Press Release. The developed record necessitates the same conclusion as at the motion to dismiss stage. The context and surrounding circumstances remain the same . The pub lica t io n was intended by Maxwell to reach the average reader, not simply the reporters, Barden's i ntent, a factual issue in contes t, notwithstanding. The issue of truth or falsity is a factual determination, not a matter of opinion. See Giuffre, 1 65 F. Supp. 3d at 152 ("[S]taternents that Giuffre's claims 'against [Maxwell] are untrue ,' have been 'sh own to be u nt rue,' and are 'obviou s lies' have a specific and readily understood factual meaning."). 69 2. The Pre-Litigation Privilege is Inapplicable . Maxwell has contended that the pre -li t igation privilege as enunciated i n Front, Inc. v . Khalil, 28 N. E . 3d 15 , 16 (N . Y. 2015) , applies. See Def. ' s Br. at 33. " A pr i vileged communication is one whic h , but for the occasion on which it is uttered, would be defamatory and actionable ." Park Knoll Assocs. v. Schmidt , 451 N. E .2 d 182 , 184 (N.Y. 1983) . "[I ]t is well-settled that statements made in the course of litigat i on are ent i tl e d to absolute privilege." Front, 28 N. E.3d at 18 . The privilege that protects statemen t s made in the course of lit i gat i on "can extend to preliminary or investigative stages of the process, p ar t ic ula r ly where compelli ng public int erests are at stake." Rosenberg v. MetLi .fe , Inc ., 866 N.E . 3d 439 , 443 (N . Y. 2007) . In Front, the New York Cou rt of Appeals ruled that the pr i vilege for "statements made by attorneys prior to the corru~e nc ement qualifie d rathe r than absolute. of litigation " is Id. at 16. Specifically , the Cour t held t hat an attorney's st a tements made before litigation has commenced are privileged if (1 ) the attorney has "a good fait h basis to a n ticipate li ti gation" a n d (2) the stateme nts are "pert inent to t h at anticipated litigation ." Id . at 20 . 70 - - - - -- - - - -- - - - -··------- The ant icipat ed lit igat ion , according to the Pre ss Re l ease , was "redress at the repetition of such old defamatory c laims ." See Press Rele ase . Accor d ing to Barden , Maxwell's lawyer , he participated in t he pr e paration of the Press Rele ase, t he purpose of t he Pre ss Release was to dissuade t he medi a from publ i shing Giu ffre 's al l egati ons , and the i mpl icati on of t he Press Release was tha t an y r edress sought by Maxwel l would be a ga inst the media . Giuf fre has disputed Barden's c l aim that the Press Re l ease was his own statement. Certain of the cases cited by Maxwell in supp ort of the privilege can be distinguished, according to Gi uf fre, in th a t th ey involve communications to or from parties to the u l timate l itigati on . See, e.g., Kirk v . Heppt, 586 , 593 (S . D. N. Y. 2008) 532 F . Supp. 2d (the communic at ion at issue was made by an attorney 's c l i ent to the attorney's ma l practice carrier concerning the client 's jus tic i ab l e controversy again st t h e att orney over which the c l ient s act u al ly sued) ; Black v . Green Harb our Home owners' Ass ' n , In c ., 1 9 A.D.3d 962 , Div. 3d De p' t 2005 ) 963 (N . Y. App. (privi l ege a pp l ied to a le tt e r sent by a home own er 's association board of directors to th e associati on 's membe rs informing them of the status of l iti gation to which t he 71 association was a party) . Giuffre contends that nthere wa s no statement made by anyone before the commencement of li tigation because litigation never commenced." See Pl .' s Opp 'n at 42 . Here , the cornmunica tion at issue was sent to members of the media, and no litigation took place between Maxwell and the media recipients of the Press Release. However , the pre-litigation privilege is not limited to sta temen ts between parties and their l awyers. nwhile the communications at issue in Fron t were among lawyers and potentia l parties, the New York Court of Appeals did not explicitly require the recipient of the challenged statements t o be a lawyer or potential party." Feist v. Paxfire r Inc ., No . 11 CIV. 5436 (LGS), 2017 WL 177652, at *5 (S.D . N. Y. Jan . 17 , 2017); see Front, 28 N. E.3d at 16-17. The Second Circuit "summarily rejected this interpretation when it applied Fr ont to an att orney's communications to the press." See Tacopina v . O'Keeffe, 645 E'. App'x 7 , 8 (2d Cir . 2016) ("Even crediting [the plaintiff]'s allegation that [the attorney] shared the affidavit with the Daily News before filing it in court, Tacopina h as still not sustained his burden of showing that the statements were not pertinent t o a good faith anticipated litigation.") . 72 Though a statement made to a non-party may be privileged, the pre - li tigati on privilege does not apply here because the Press Release cannot be considered a "statement [] made by [an] attorney." Front , 28 N. E . 3d at 16. Whether Maxwell's attorney , Barden , had a hand in drafting the Press Release, and the extent to which he may have been involved, is a disputed issue of fact . The record evidence establishes that, regardless, the Press Re l ease is properly attributable to Maxwell . Maxwell retained a public relations firm and sent her representative there, Gow , a forwarded email with the statements that were to be used in the Press Release . Maxwell instructed Gow to send it, as he testified i n his deposi tion. While Maxwell herself did not disseminate the email to the media recipients , neither did Barden . The statement was sent out by Gow. Additionally, t he alleged defamatory statements in the Press Release were attributed t o Maxwell, and not to her attorney or his agents. The email stated that the Press Release was a "statement on beha lf of " Maxwell and notified the media recipients that "[n]o further communication will be provided by her [Maxwel l] on this matter ." There is no evidence in the email 73 • that the Press Release was anything near an attorney's statement; Barden was not even copied on the email. The pre-litigation privilege is intended to protect attorneys from defamations claims "so that those discharging a public function may speak freely to zealously represent their client s without fear of reprisal or financial hazard." Id. at 18 . Where the statement cannot be attributed to an attorney, there is no justification for protecting it by privilege. In addition , as this Court concluded in denying Maxwell's motion to dismiss , "[t]here is no qualified privilege under New York law when such statements are spoken with malice , knowledge of their falsity , or reckless disregard for their truth. " Giuffre , 165 F . Supp . 3d at 155 (internal quotation marks and citation omitted) . It is Giuffre 's contention that Maxwell knew the statements were false because she engaged in and facilitated the sexual abuse of Giuffre . Therefore , according to Giuffre, they were not made in good faith anticipation of litigation, and instead were made for the inappropr iate purpose of "bul ly(ing] ," "harass]ment]," and "intimid[ation]." See Front, 28 N.E.3d at 19 (2015). According to Giuffre, there is ample record evidence that Maxwell acted 74 • with malice in issuing the Press Release , thereby making the pre-litigation privilege inapplicable . Because of the existence of triable issues of material fact rather than opinion and because the pre-litigation privilege is inapplicable , the motion for summary judgment is denied . 75 ; { ···-·-------·· . · -- - ------------------------------- ·- VII. Conclusion For the reasons se t fort h above, the motion for summary j udgment is denied . The parties are directed to jointly file a proposed redac t ed version of this Opinion consistent with the Protective Order or notify the Court that none are necessary within one week of the date of receipt of this Opinion . It is so ordered . New York, NY March")_,J:-- 2017 OBERT W. SWEET U.S.D.J. 76

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