Case Document Filed Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK usncsoNY DOCl ENT ELECfk 1CAt1.Y FILED OOC 4lz I Jffi ftLEO zr Li i VIRGINIA GIUFFRE Giuffre Civ against GHISLAINE MAXWELL Maxwell APPEARANCES Counsel for Giuffre BOIES SCHILLER FLEXNER LLP East Las Olas Boulevard Suite Fort Lauderdale FL By Sigrid Mccawley Esq Meredith Schultz Esq Counsel for Maxwell HADDON MORGAN AND FOREMAN P.C East Tenth Avenue Denver CO By Laura A Menninger Esq Jeffrey Pagliuca Esq OPINION Case Document Filed Page of Sweet D.J The defendant Ghislaine Maxwell Maxwell or the Maxwell has moved pursuant to Rule Fed Civ for summary judgment dismissing the complaint of plaintiff Virginia 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 have been redacted I Prior Proceedings Since the filing of the complaint on September setting forth Giuffres claim of defamation by Maxwell this action has been vigorously litigated as demonstrated by the docket entries as of March At issue is the truth or falsity of a January statement issued by Maxwell Discovery has proceeded a joint pretrial order has been filed and the action is set for trial on May The instant motion was heard and marked fully submitted on February Case Document Filed Page of II The Facts The facts have been set forth in Maxwells Memorandum of Law in Support of Maxwells Motion for Summary Judgment Southern District of New York Local Rule Gi ffres Statement of Contested Facts and Giuffr Undisputed Facts and Maxwells Reply to Giuffres Statement of Contested Facts and Giuffres Undisputed Facts pursuant to Local Civil Rule They are not in dispute except as noted below I Case Document Filed Page of Case Document Filed Page of Case Document Filed Page of Case Document Filed Page of Case Document Filed Page of Case Document Filed Page of Case Document Filed Page Case 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Page Case Document Filed Page i i i Case Document Filed Page Case Document Filed Page I I The Applicable Standard Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.ll Fed Civ The substantive law will identify which facts are rnaterial.ll Anderson Liberty Lobby Inc U.S A dispute is genuinell if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.ll Case Document Filed Page 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 A court is not charged with weighing the evidence and determining its truth but with determining whether there is a genuine issue for trial Westinghouse Elec Corp N.Y City Transit Auth Supp S.D.N.Y quoting Anderson U.S at The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment the requirement is that there be no genuine issue of material fact Anderson U.S at 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 CSX Lines L.L.C F.3d 2d Cir 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 partys case Celotex Corp Catrett U.S It is ordinarily sufficient for the movant to point Case Document Filed Page to a lack of evidence on an essential element of the non movants claim he nonmoving party must then come forward with admissible evidence sufficient to raise a genuine issue of fact for trial Jaramillo Weyerhaeuser Co 3d 2d Cir internal citations omitted see also Goenaga March of Dimes Birth Defects Found 3d 2d Cir 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 summary judgment dismissing Giuffres complaint on the grounds that Maxwell is not liable for the republication 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 denied In New York liability for a republication must be based on real authority to influence the final product Davis Case Document Filed Page Costa-Gavras Supp S.D.N.Y see also Hoffman Landers A.D.2d N.Y App Div 2d Dept One who makes a defamatory statement is not responsible for its recornmunication 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 liable without disregarding the settled rule of law that no man is bound for the tortious act of another over whom he has not a masters power of control Davis Supp at internal quotation marks and citation omitted The New York Court of Appeals summarized New Yorks republication liability standard in Geraci Probst N.E.2d N.Y stating that one who prints and publishes a libel is not responsible for its voluntary and unjustifiable repetition without his authority or request by others over whom he has no control and who thereby make themselves liable to the person injured and that such repetition cannot be considered in law a necessary natural and probable consequence of the original slander or libel N.E.2d at internal quotation marks and citation omitted Thus conclusive evidence of lack of actual authority is sufficiently dispositive that the court has no option but to dismiss the case Davis Supp at Case Document Filed Page quoting Rinaldi Viking Penguin Inc N.E.2d N.Y However New York law assigns liability to individuals for the medias publication of press releases New York appellate courts have held that an individual is liable for the media publishing that individuals defamatory press release See Levy Smith A.D.3d N.Y App Div 2d Dept Generally one who makes a defamatory statement is not responsible for its recommunication without his authority or request by another over whom he has no control Here however the appellant intended and authorized the republication of the allegedly defamatory content of the press releases in the news articles see also RESTATEMENT SECOND OF TORTS The publication of a libel or slander is a legal cause of any special harm resulting from its repetition by a third person if the repetition was authorized or intended by the original defamer or reasonably to be expected the repetition was The facts as set forth above establish that Maxwell approved the Press Release The Press Release was sent to between six and media representatives by Gow as an employee Case Document Filed Page of Acuity Reputation the public relations firm hired by Maxwell The initial sentence of the Press Release Please find attached a quotable statement on behalf of Maxwell communicates Maxwells authorization for the media recipients of the Press Release to publish it See Natl Puerto Rican Day Parade Inc Casa Pubs Inc A.D.3d N.Y App Div 1st Dept affirming the refusal to dismiss defamation counts against a defendant who submitted an open letter that was published in a newspaper and that the defendant paid to have the open letter published finding that the defendant authorized the newspaper to recommunicate his statements Maxwell has cited Geraci Probst in support of her position but Geraci is distinguishable from the instant action In Geraci the defendant sent a letter to the Board of Fire Commissioners and more than three years later a newspaper published the letter The court held that the defendant was not liable for that belated publication made years later without his knowledge or participation N.E.2d at Here unlike in Geraci the Press Release was not published without her authority or request but rather with Maxwells authority and Case Document Filed Page by her express request Gows testimony establishes Maxwells authority and control over the Press Release When you sent that email were you acting pursuant to Ms Maxwells retention of your services A Yes I was The subject line does have FW which to me indicates its a forward Do you know where the rest of this email chain 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 originally by Ms Maxwell and because he was unavailable she forwarded it to me for immediate action I therefore respond Okay Ghislaine Ill go with this It is my understanding that this is the agreed statement because the subject of the second one is Urgent this is the statement so I take that as an instruction to send it out as a positive command This is the statement Maxwell also cites Davis Costa-Gavras involving a libel claim against an author who wrote a book about a military coup in Chile Supp at 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 he was aware of the Case Document Filed Page projects The court held that the author of the book could not be held liable for the republications explaining that a party who is innocent of all complicity in the publication of a libel cannot be held accountable Supp at internal citations omitted The court further noted that active participation in implementing the republication resurrects the liability Id Likewise in Karaduman Newsday Inc N.E.2d also cited by Maxwell the court held that reporters of a series of articles on narcotics trade cannot be held personally liable for injuries arising from the subsequent republication in book form absent a showing that they approved or participated in some other manner in the activities of the third-party republisher Id at However the court explicitly noted that this result was required because the record was barren of any concrete evidence of the reporters involvement in the republication of the newspaper series Id at Here there is evidence in the record that Maxwell actively participated in influencing the media to publish the Press Release Davis Supp at and approved of and sought the publication of the press release Karaduman N.E.2d at Maxwell retained a public relations media Case Document Filed Page specialist The Press Release was sent by Maxwe ls express request Gows testimony about the process leading 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 Maxwells authority and control over the publication of the Press Release Maxwells liability for the Press Releases publication survives the motion for summary judgment Maxwell has additionally asserted that subjecting her to liability for republication is particularly unfairn because excerpts of the Press Release rather than the whole statement were published Def.s Reply at Maxwell cites to Rand New York Times Co A.D.2d N.Y App Div 1st Dept in which a newspaper paraphrased the defendants opinion essentially excising the opinion from the context in which it was given Id at No similar alteration sanitization hyperbolizing or paraphrasing of Maxwells statements has been established here Nor does the record establish that any statements of Maxwells were taken out of context rather they were directly quoted accurately and unchanged The publication of Maxwells statement that Giuffres claims are obvious lies Case Document Filed Page 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 liable for its content and the motion for summary judgment on the grounds of non-liability for republication is denied The Motion for Summary Judgment to Dismiss the Defamation Claim on the Ground of Substantial Truth is Denied Maxwell has asserted that the Press Release is substantially true and that the defamation claim should therefore be dismissed See Def.s Br at Whether or ot Giuffre lied about Maxwells involvement in the events that Giuffre has alleged took place is the intensely contested factual issue that i the foundation of this action Accordingly summary judgment is not appropriate See Mitre Sports Intern Ltd Home Box Office Inc Supp 3d S.D.N.Y denying summary judgment because it would require the Court to decide disputed facts to determine whether the statement at issue was substantially true Da Silva Time Inc Supp S.D.N.Y denying motion for summary judgment because there was a genuine issue of Case Document Filed Page material fact 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 NYP Holdings Inc Supp 2d S.D.N.Y 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 Friedman N.E N.Y Thus it is not necessary to demonstrate complete accuracy to defeat a charge of libel It is only necessary that the gist or substance of the challenged statements be true Printers II Inc Professionals Publishing Inc F.2d 2d Cir see also Korkala W.W Norton Co F.Supp D.N.Y Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance internal quotation marks and citation omitted Sharon Time Inc F.Supp S.D.N.Y Defendant is permitted to prove the substantial truth of this statement by establishing any other proposition that has the Case Document Filed Page same gist or sting as the original libel that is the same effect on the mind of the reader ll The Honorable Loretta A Preska has noted that cases addressing whether a statement is substantially true fall along a broad spectrum Jewell Supp at There are cases in which a statement is non-actionable because it is completely true See e.g Carter A.D.2d N.Y App Div 2d Dept claim that defendant committed libel by informing the authorities that aintiff was endorsing checks made payable to the defendant and depositing them in plaintiffs account held non-actionable where plaintiff had in fact endorsed checks made payable to the defendant There are cases where one struggles to identify any area of ambiguity as to truth Jewell Supp at see e.g Miller Journal-News A.D.2d App Div 2d Dept statement that plaintiff was suspended substantially true where aintiff was placed on administrative leavell There are cases where the line between the statement and the admitted truth is more tenuous but the overall i st cannot be said to be substantially different See e.g Guccione Hustler Magazine Inc 2d 2d Cir holding that statement which implied that plaintiff was then currently an adulterer was substantially true Case Document Filed Page where plaintiff had ceased being an adulterer but had unabashedly committed 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 difference between the two is plainly substantial Jewell Supp at For example the court in Da Silva Supp at held that a photograph of plaintiff which identified her as a prostitute was not substantially true where the plaintiff had been a prostitute for some six years but was not at the time of publication After reviewing this spectrum of cases the facts upon which Maxwell bases her argument are insufficient to allow this Court to find substantial truth as a matter of law A material dispute of fact exists as to the admitted truth or the reality in this case The details and significance of the facts offered are highly contested and therefore cannot establish the substantial truth of the Press Release Reasonable jurors could conclude that the statements Case Document Filed Page are not substantially true Boehner Heise Supp 2d S.D N.Y The motion for summary judgment to dismiss the defamation on the ground of substantial truth is denied as not having been established by undisputed material facts VI The Defamation Claim is Not Barred by New York Law Maxwell has moved to dismiss the complaint on the ground that the Press Release is opinion and protected by the pre-litigation privilege under New York law Because New York law does not support Maxwells position the motion for summary judgment based on the characterization of the Press Release as opinion and as protected by a pre-litigation privilege is denied The Press Release is Not Opinion As previously held Maxwells statement that Giuffres claims of sexual assault are lies is not an expression of opinion Case Document Filed Page First statements that Giuffres claims against Maxwell are untrue have been shown to be untrue and are obvious lies have a specific and readily understood factual meaning that Giuffre is not telling the truth about her history of sexual abuse and Maxwells role and that some verifiable investigation has occurred and come to a definitive conclusion proving that fact Second these statements as they themselves allege are capable of being proven true or false and therefore constitute actionable fact and not opinion Third in their full context while Maxwells statements have the effect of generally denying Giuffres story they also clearly constitute fact to the reader Giuffre Maxwell Supp 3d S.D.N.Y This Court further concluded that Id Giuffre cannot be making claims shown to be untrue that are obvious lies without being a liar Furthermore to suggest an individual is not telling the truth about her history of having been sexually assaulted as a minor constitutes more than a general denial it alleges something deeply disturbing about the character of an individual willing to be publicly dishonest about such a reprehensible crime Maxwells statements clearly imply that the denials are based on facts separate and contradictory to those that Giuffre has alleged Maxwell argues that the context of the entire statement tested against the understanding of the average reader should be that of a press release as a whole being read only by journalists Def.s Br at quoting Aronson Wiersma N.E.2d However the ultimate Case Document Filed Page audience for a press release is the public The motion to dismiss opinion clearly addressed this issue Sexual assault of a minor is a clear-cut issue 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 understandings of the same facts that justify diametrically opposed opinion as to whether Maxwell was involved in Giuffres abuse as Giuffre has claimed Either Giuffre is telling the truth about her story and Maxwells involvement or Maxwell is telling the truth and she was not involved in the trafficking and ultimate abuse of Giuffre Giuffre Supp at Maxwell has urged that these conclusions at the motion to dismiss stage should be revisited and revised when considering the summary judgment motion since the standard for deciding a Rule motion is different from the standard for deciding a Rule motion In deciding a motion the court must accept as true the factual allegations and draw all inferences in the plaintiffs favor a plaintiff need only state a claim that is plausible on its face Id at internal quotation marks and citation omitted In contrast for a Rule motion the plaintiff defending the motion may not rest on the allegations in her complaint Anderson U.S at Case Document Filed Page In deciding its motion to dismiss opinion the Court relied on Davis Boeheim N.E.3d 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 Supp at The Court determined that the 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 internal quotation marks and citation omitted To answer that inquiry three factors enumerated in Davis were applied See id These three factors are the same as the four factors in Immuno AG Moor-Jankowski N.E.2d N.Y the difference is that the Davis court collapsed the Immuno AGs third and fourth factors into one See Davis N.E.3d at The critical aspect of the inquiry as articulated in the third factor set forth above is to view the statements in context Jewell Supp 2d at This contextual analysis proceeds on two levels the broader social setting of the statements as well as their immediate context Id citing Immuno N.E.2d at Case Document Filed Page Maxwell 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 Def Br at 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 Id At the motion to dismiss stage the text of the Press Relea had not yet been produced nor had there been production 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 Bardens intent a factual issue in contest notwithstanding The issue of truth or falsity is a factual determination not a matter of opinion See Giuffre Supp 3d at Statements that Giuffre claims against Maxwell are untrue have been shown to be untrue and are obvious lies have a specific and readily understood factual meaning Case Document Filed Page The Pre-Litigation Privilege is Inapplicable Maxwell has contended that the pre-litigation privilege as enunciated in Front Inc Khalil N.E.3d N.Y applies See Def.s Br at A privileged communication is one which but for the occasion on which it is uttered would be defamatory and actionable Park Knoll Assocs Schmidt N.E.2d N.Y It is well-settled that statements made in the course of litigation are entitled to absolute privilege Front N.E.3d at The privilege that protects statements made in the course of litigation can extend to preliminary or investigative stages of the process particularly where compelling public interests are at stake Rosenberg vletLiEe Inc N.E.3d N.Y In Front the New York Court of Appeals ruled that the privilege for statements made by attorneys prior to the coITu encement of litigation is qualified rather than absolute Id at Specifically the Court held that an attorneys statements made before litigation has commenced are privileged if the attorney has a good faith basis to anticipate litigation and the statements are pertinent to that anticipated litigation Id at Case Document Filed Page The anticipated litigation according to the Press Release was redress at the repetition of such old defamatory claims See Press Release According to Barden Maxwells lawyer he participated in the preparation of the Press Release the purpose of the Press Release was to dissuade the media from publishing Giuffres allegations and the implication of the Press Release was that any redress sought by Maxwell would be against the media Giuffre has disputed Bardens claim that the Press Re ease was his own statement Certain of the cases cited by Maxwell in support of the privilege can be distinguished according to Giuffre in that they involve communications to or from parties to the ultimate litigation See e.g Kirk Heppt Supp 2d S.D.N.Y the communication at issue was made by an attorneys client to the attorneys ma practice carrier concerning the clients justiciable controversy against the attorney over which the clients actually sued Black Green Harbour Homeowners Assn Inc A.D.3d N.Y App Div 3d Dept privilege applied to a letter sent by a home owners association board of directors to the associations members informing them of the status of litigation to which the Case Document Filed Page association was a party Giuffre contends that there was no statement made by anyone before the commencement of litigation because litigation never commenced See Pl.s Oppn at 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 challenged statements to be a lawyer or potential party Feist Paxfire Inc No CIV LGS WL at S.D.N.Y Jan see Front N.E.3d at The Second Circuit summarily rejected this interpretation when it applied Front to an attorneys communications to the press See Tacopina OKeeffe Appx 2d Cir Even crediting the plaintiffs allegation that the attorney shared the affidavit with the Daily News before filing it in court Tacopina has still not sustained his burden of showing that the statements were not pertinent to a good faith anticipated litigation Case Document Filed Page Though a statement made to a non-party may be privileged the pre-litigation privilege does not apply here because the Press Release cannot be considered a statement made by an attorney Front N.E.3d at Whether Maxwells 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 Release 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 in his depositicn While Maxwell herself did not disseminate the email to the media ecipients neither did Barden The statement was sent out by Gow Additionally the alleged defamatory statements in the Press Release were attributed to Maxwell and not to her attorney or his agents The email stated that the Press Release was a statement on behalf of Maxwell and notified the media recipients that no further communication will be provided by her Maxwell on this matter There is no evidence in the email Case Document Filed Page that the Press Release was anything near an attorneys 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 clients without fear of reprisal or financial hazard Id at 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 Maxwells 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 Giuffre Supp 3d at internal quotation marks and citation omitted It is Giuffres 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 inappropriate purpose of bullying harassrnent and intimidation See Front N.E.3d at According to Giuffre there is ample record evidence that Maxwell acted Case Document Filed Page 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 Case Document Filed Page VII Con cl.us ion 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 It is so ordered New York NY MarchlJ OBERT
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