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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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T< '/\ f .1_,Y FILED

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VIRGINIA GIUFFRE,
Giuffre,

15 Civ. 7433

-againstOPINION
GHISLAINE MAXWELL,
Maxwell.

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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.

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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.

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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 .

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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

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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

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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
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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

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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