Judge Sweets Order Denying Maxwell's Request For Summary Judgement Against Virginia (Part 7)

0:00Most people would rather assemble a 300-piece cabinet than search for insurance. That's why the Zebra searches for you, comparing over 100 insurance companies to find savings no one else can. Compare today at the Zebra.com. Here at the Zebra, research shows people would rather teach their kids to drive than search for auto and home insurance. Or attend a corporate team-building workshop. Go team, feel that synergy. Or be regaled by Uncle Frank's conspiracy theories. They're listening to us right now. That's why the Zebra searches for you, comparing over 100 insurance companies to find savings no one else can. Compare today at the Zebra.com. We do the searching. You do the saving. Shhh, they're here. What's up everyone and welcome back to the Epstein Chronicles. In this episode, we're diving right back in to Judge Sweet's opinion, denying Elaine Maxwell's request for a summary judgment. So let's dive right back in and let's finish this bad boy off.

1:03Maxwell acknowledges that the court properly applied Davis at the motion to dismiss stage, but argues that the third factor, especially benefits from the evidence presented in the motion for summary judgment. See defense, briefing at 32. In other words, Maxwell argues that the court did not have the full context of the press release or the broader social context and surrounding circumstances of the statement. At the motion to dismiss stage, the text of the press release had not yet been produced, nor had there been reduction of emails 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 publication was intended by Maxwell to reach the average reader, not simply the reporters, Barton's intent, a factual issue in contest, notwithstanding. The issue of truth or falsity is a factual determination, not a matter of opinion.

2:05See Roberts 165 f dot supp 3d at 152 statements that claim Roberts claims against Maxwell are untrue have been shown to be untrue and our obvious lies have a specific and readily understood factual meaning. 2. The pre litigation privilege is inapplicable. Maxwell has contended that the pre litigation privilege as enunciated in front incorporated Burst Khalil 28 and E3D 15 16 and Y 2015 applies. See defense briefing at 33. A privileged communication is one which but for the occasion on which it is uttered would be defamatory and actionable. Park Noll Associates v. Schmidt 451, NE2D 182 184 and Y 1983. It is well settled that statements made in the course of litigation are entitled to absolute privilege, front 28 and E3D at 18.

3:06The privilege that protects statements made in the course of litigation can extend the preliminary or investigative stages of the process, particularly where compelling public interests are at stake. Rosenberg vs. MetLife Incorporated 866 and E3D 439443 and Y 2007. In front the New York Court of Appeals ruled that the privilege for statements made by attorneys prior to the commencement of litigation is qualified rather than absolute ID at 16. Specifically the court held that an attorney's statements made before litigation has commenced or privileged if one, the attorney has a good faith basis to anticipate litigation and two, the statements are pertinent to that anticipated litigation, ID at 20. The anticipated litigation according to the press release was redress at the repetition of such old defamatory claims, see press release. According to Barton Maxwell's lawyer, he participated in the preparation of the press release,

4:09the purpose of the press release was to dissuade the media from publishing Robert's allegations, and the implication of the press release was that any redress sought by Maxwell would be against the media. Roberts has disputed Barton's claim that the press release was his own statement. Certain of the cases cited by Maxwell in support of the privilege can be distinguished according to Roberts in that they involve communications to or from parties to the ultimate litigation, C-E-G Kirk vs. Hept 532-F-S-U-P-P.2-D-586-593-S-D-N-Y-2008. The communication at issue was made by an attorney's client to the attorney's malpractice carrier concerning the client's justifiable controversy against the attorney over which the client's actually sued, Black vs. Green Harbor, homeowner's association incorporated 19AD-3D-962-963-New York Appeals Division 3rd Department 2005.

5:11Privilege applied to a letter sent by a homeowner's association board of directors to the association's members, informing them of the status of litigation to which the association was a party. Roberts contends that there was no statement made by anyone before the commencement of litigation because litigation never commenced. Here the communication 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 statements between parties and their lawyers, while the communications at issue in front were among lawyers and potential parties, the New York Court of Appeals did not explicitly require the recipient of the challenge statements to be a lawyer or a potential party. Vice-versus-packs fire incorporated, number 11-CIV-5436-LGS-2017-WL-177-652-5-SDNY-J-17-2017-C-Front-28-N.E.3D-At-16-17.

6:19The second circuit rejected this interpretation when it applied front to an attorney's communication to the press. See Takapena vs. O'Keefe, 645-F.APPX-7NA, second circuit 2016. Even crediting the plaintiff's allegation that the attorney shared the avid David with the Daily News before filing it in court, Takapena has still not sustained his burden of showing that the statements were not pertinent to a good faith-anticipated litigation. Although a statement made to a non-party may be privileged, the pre-litication 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, Barton, had a hand in drafting the press release in the extent to which he may have been involved, is a disputed issue effect. The record evidence establishes that, regardless, the press release is properly attributable to Maxwell.

7:19Maxwell retained a public relations firm and center representatives there, Gal, a forwarded email, with the statement that were to be used in the press release. Maxwell instructed Gal to send it, as he testified in his deposition, while Maxwell herself did not disseminate the email to the media recipients, neither did Barton. The statement was sent by Gal. Here at the Zebra, research shows the average person would rather endure a root canal than search for auto and home insurance. Or be trapped in a car for eight hours with toddlers on a sugar high, or remove a nest of irate hornets. That's why the Zebra searches for you, comparing over 100 insurance companies to find savings no one else can, compared today at the zebra.com. We do the searching you to the saving. I think I'll wait inside. Additionally, the alleged defamatory statements in the press release were attributed to Maxwell and not a attorney or his agents.

8:20The email stated that the press release was a statement on behalf of Maxwell and notify the media recipients that no further communication will be provided by Maxwell on this matter. There is no evidence in the email that the press release was anything near an attorney's statement. Barton was not even copied on the email. The pre-litigation privilege is intended to protect attorneys from defamation claims so that those discharging a public function may speak freely to zealously represent their clients 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, there 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. Roberts 165 f dot supp 3d at 155 internal quotation marks and citation omitted.

9:26It is Roberts' contention that Maxwell knew the statements were false because she engaged in and facilitated the sexual abuse of Roberts. Therefore according to Roberts, they were not made in good faith anticipation of litigation, but instead were made for the inappropriate purpose of bullying and harassment and intimidation. See front 28 and dot E 3d at 19 2015. According to Roberts, there is ample record evidence that Maxwell acted with malice in issuing the press release thereby making the pre-litigation privilege in applicable. Because of the existence of trial issues of material fact rather than opinion and because of the pre-litigation privilege is in applicable, the motion for summary judgment is denied. The conclusion for the reason set for the above, the motion for summary judgment is denied. The parties are directed to jointly file a proposed redacted version of this opinion consistent with a protective order or notify the court that none are necessary within one week of

10:30the date of receipt of this opinion. It is so ordered on March 22nd, 2017 and it is ordered by Judge Roberts Wheat. Alright folks, so that concludes our look at the decision denying Glenn Maxwell's request for a summary judgment. As you can imagine, much more is on the way. All of the information that goes with this episode can be found in the description box.