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Judge Sweets Opinion Denying Maxwell's Request For Summary Judgement (Part 7) · The Vault: The Epstein Files

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  Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
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  In this episode, we're diving right back in to Judge
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  Sweet's opinion denying Glenn Maxwell's request for a summary judgment.
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  So let's dive right back in and let's finish this
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  bad boy off. Maxwell acknowledges that the court properly applied
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  Davis at the motion to dismiss stage, but argues that
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  the third factor especially benefits from the evidence presented in
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  the motion for some rejudgment see Defense briefing at thirty two.
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  In other words, Maxwell argues that the court did not
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  have the full context of the press release or the
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  broader social context and surrounding circumstances of the statement. At
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  the emotion to dismiss stage. The text of the press
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  release had not yet been produced, nor had there been
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  production of emails or deposition testimony regarding the press release.
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  The developed record necessitates the same conclusion as at the
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  motion to dis misstage. The context and surrounding circumstances remain
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  the same. The publication was intended by Maxwell to reach
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  the average reader, not simply the reporters. Barton's intent a
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  factual issue in contest. Notwithstanding the issue of truth or
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  falsity is a factual determination, not a matter of opinion. C. Roberts,
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  one sixty five Ft. Supp Three d at one fifty two.
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  Statements that claim Robert's claims against Maxwell are untrue have
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  been shown to be untrue, and our obvious lies have
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  a specific and readily understood factual meaning. Sec. Two. The
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  pre litigation privilege is inapplicable. Maxwell has contended that the
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  preltication privilege as enunciated in Front Incorporated vers Khalil twenty
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  eight n e three d. Fifteen sixteen and Y twenty
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  fifteen applies see Defense Briefing at thirty three. A privileged
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  communication is one which, but for the occasion on which
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  it is uttered, would be defamatory and actionable. Parknoll Associates.
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  Verse Schmidt, four fifty one, ne E two d one
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  eighty two, one eighty four, and Y nineteen eighty three.
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  It is well settled that statements made in the course
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  of litigation are entitled to absolute privilege Front twenty eight
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  e three d at eighteen. The privilege that protects statements
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  made in the course of litigation can extend the preliminary
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  or investigative stages. Of the process, particularly where compelling public
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  interests are at stake. Rosenberg versus met Life Incorporated, eight
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  sixty six ne E three D four thirty nine, four
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  forty three and y two thousand seven in front, the
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  New York Court of Appeals ruled that the privilege for
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  statements made by attorneys prior to the commencement of litigation
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  is qualified rather than absolute id at sixteen. Specifically, the
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  court held that an attorney's statements made before litigation has
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  commenced or privileged if one the attorney has a good
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  faith basis to anticipate litigation and to the statements are
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  pertinent to that anticipated litigation Idea twenty. The anticipated litigation,
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  according to the press release, was redress at the repetition
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  of such old defamatory claims see press release. According to Barton,
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  Maxwell's lawyer, he participated in the preparation of the press release.
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  The purpose of the press release was to dissuade the
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  media from publishing Robert's allegations, and the implication of the
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  press release was that any redress sought by Maxwell would
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  be against the media. Roberts has disputed Bardon's claim that
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  the press release was his own statement Certain of the
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  cases cited by Maxwell in support of the privilege can
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  be distinguished, according to Roberts, in that they involve communications
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  to or from parties to the ultimate litigation. Ce g.
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  Kirk versus Hept five point thirty two F. Supp Dot
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  two D. Five eighty six, five ninety three SDNY, two
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  thousand and eight. The communication at issue was made by
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  an attorney's client to the attorney's malpractice carrier concerning the
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  client's justiceable controversy against the attorney over which the clients
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  actually sued. Black versus Green Harbor Homeowners Association, Incorporated, nineteen
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  A D three D. Nine sixty two, nine sixty three
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  New York Appeals Division, Third Department, two thousand and five.
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  Privilege applied to a letter sent by a Homeowner's Association
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  Board of directors to the association's members informing them of
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  the status of litigation to which the association was a party.
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  Roberts contends that there was no statement made by anyone
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  before the commencement of litigation because litigation never commenced. Here,
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  the communication at issue was sent to members of the media,
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  and no litigation took place between Maxwell and the media.
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  Recipients of the press release. However, the pre litigation privilege
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  is not limited to statements between parties and their lawyers.
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  While the communications at issue in Front were among lawyers
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  and potential parties, the New York Court of Appeals did
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  not explicitly require the recipient of the challenge statements to
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  be a lawyer or potential party. Feist versus packs Fire Incorporated.
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  Number eleven CIV fifty four thirty six LGS twenty seventeen,
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  w L one seven seven sixty five two AT five
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  SDNY January seventeenth, twenty seventeen, C Front twenty eight and
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  dot E dot three d at sixteen and seventeen. The
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  Second Circuit rejected this interpretation when it applied Front to
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  an attorney's communication to the press. CE Tacapoina versus O'Keefe
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  six forty five f Dot appx seven eight, Second Circuit
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  twenty sixteen, Even crediting the plaintiff's allegation that the attorney
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  shared the affid David with the Daily News before filing
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  it in court, Takapoena has still not sustained his burden
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  of showing that the state statements were not pertinent to
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  a good faith anticipated litigation. Though a statement made to
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  a non party may be privileged, the pre litigation privilege
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  does not apply here because the press release cannot be
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  considered a statement made by an attorney Front twenty eight
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  and dot E three d at sixteen. Whether Maxwell's attorney
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  Barden had a hand in drafting the press release in
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  the extent to which he may have been involved is
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  a disputed issue. Effect the record evidence establishes that, regardless,
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  the press release is properly attributable to Maxwell. Maxwell retained
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  a public relations firm and Center representatives there. GAO affwarded
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  email with the statement that were to be used in
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  the press release. Maxwell instructed Gau to send it, as
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  he testified in his deposition. While Maxwell herself did not
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  disseminate the email to the media recipients, neither did Barden.
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  The statement was sent by GOO. Additionally, the alleged offamatory
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  statements in the press release were attributed to Maxwell and
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  not her attorney or his agents. The email stated that
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  the press release was a statement on behalf of Maxwell
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  and notified the media recipients that no further communication will
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  be provided by Maxwell on this matter. There is no
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  evidence in the email that the press release was anything
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  near an attorney's statement. Barden was not even copied on
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  the email. The pre litigation privilege is intended to protect
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  attorneys from defamation claims, so that those discharging a public
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  function may speak freely to zealously represent their clients without
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  fear of reprisal or financial hazard id At eighteen. Where
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  the statement cannot be attributed to an attorney, there is
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  no justification for protecting it by privilege. In addition, as
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  this Court concluded in denying Maxwell's motion to dismiss, there
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  is no qualified privilege under New York law when such
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  statements are spoken with malice, knowledge of their falsity, or
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  reckless disregard for their truth. Roberts, one sixty five f.
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  Dot supp Three d At one fifty five internal quotation
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  marks in citation omitted. It is Robert's contention that Maxwell
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  knew the statements were false because she engaged in and
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  facilitated the sexual abuse of Roberts. Therefore, according to Roberts,
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  they were not made in good faith anticipation of litigation,
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  but instead were made for the inappropriate purpose of bullying
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  and harassment and intimidation c. Front twenty eight and Dot
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  e three d at nineteen twenty fifteen. According to Roberts,
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  there is ample record evidence that Maxwell acted with malice
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  in issuing the press release, thereby making the pre litigation
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  privilege inapplicable. Because of the existence of triable issues of
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  material fact rather than opinion, and because the pre litigation
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  privilege is inapplicable, the motion for some rejudgment is denied.
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  The conclusion for the reason and set forth above, the
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  motion for some rejudgment is denied. The parties are directed
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  to jointly file a proposed redacted version of this opinion
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  consistent with the protective order, or notify the Court that
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  none are necessary within one week of the date of
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  receipt of this opinion. It is so ordered on March
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  twenty second, twenty seventeen, and it's ordered by Judge Robert Sweet.
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  All right, folks, So that concludes our look at the
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  decision denying Glenn Maxwell's request for a summary judgment. As
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  you can imagine, much more is on the way. All
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  of the information that goes with this episode can be
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  found in the description box.