Sweet Opinion Unsealed

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA GIUFFRE, Giuffre, 15 Civ. 7433 ?against? SEALED .OPINION GHISLAINE MAXWELL, Maxwell. A A A 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. Case 18-2868, Document 287, 08/09/2019, 2628251, Page2 of 76 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. 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. Case 18-2868, Document 287, 08/09/2019, 2628251, Page3 of 76 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 Undisputed 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. 1. rIn early 2011, Giuffre, in two British tabloid interviews, made numerous false and defamatory allegations against Maxwell. In the articles, Giuffre made no direct allegations that Maxwell was involved in any improper conduct with Jeffrey Epstein (?Epstein?), who had pleaded guilty in 2007 to procuring a minor for prostitution. Nonetheless, Giuffre suggested that Maxwell worked with Epstein and may have known about the crime for which he was convicted. Giuffre has denied that the allegations she made against Maxwell were false and defamatory. She noted that she did give an interview to journalist, Sharon Churcher (?Churcher?), in which she described Maxwell?s role as someone Case 18-2868, Document 287, 08/09/2019, 2628251, Page4 of 76 who recruited or facilitated the recruitment of young females for Epstein, that she was interviewed by the FBI in 2011, and that she discussed Maxwell?s involvement in the sexual abuse. 2. In the articles, Giuffre alleged she had sex with Prince Andrew, ?a well?known businessman,? a ?world?renowned scientist,? a ?respected liberal politician,? and a ?foreign head of state.? Giuffre did not contest this statement but noted it is irrelevant. 3. In response to the allegations, Maxwell?s British? attorney, working with Ross Gow Maxwell?s public relations representative, issued a statement on March 9, 2011, denying ?the various allegations about [Maxwell] that have appeared recently in the media. These allegations are all entirely false.? Giuffre has denied that Maxwell?s British attorney, Philip Barden (?Barden?), ?issued a statement,? noting that it appears to have the contact ?Gow? and a reference to.Devonshire Solicitors. Case 18-2868, Document 287, 08/09/2019, 2628251, Page5 of 76 4. The March 9, 2011 statement read in full: Statement on Behalf of Ghislaine Maxwell By Devonshires Solicitors, PRNE Wednesday, March 9, 2011 London, March 10, 2011 Ghislaine Maxwell denies the various allegations about her that have appeared recently in the media. These allegations are all entirely false. It is unacceptable that letters sent by Maxwell?s legal representatives to certain newspapers pointing out the truth and asking for the allegations to be withdrawn have simply been ignored. In the circumstances, Maxwell is now_proceeding to take legal action against those newspapers. understand newspapers need stories to sell copies. It is well known that certain newSpapers live by the adage, ?why let the truth get in the way of a good story.? However, the allegations made against me are abhorrent and entirely untrue and I ask that they stop,? said Ghislaine Maxwell. number of newspapers have shown a complete lack of accuracy in their reporting of this story and a failure to carry out the most elementary investigation or any real due diligence. I am now taking action to clear my name,? she said. Media contact: Ross Gow Acuity Reputation' Tel: Mob: +44?7778?755?251 Email: ross@acuityreputation.com Media contact: Ross Gow, Acuity Reputation, Tel: Case 18-2868, Document 287, 08/09/2019, 2628251, Page6 of 76 Mob: +44?7778-755?251, Email: rose at acuityreputation.com Giuffre has noted it is unclear if the original included the italics that are inserted above. 5. In 2008, two alleged victims of Epstein brought an action under the Crime Victims? Rights Act (the I Action?) against the United States Government purporting to challenge Epstein?s plea agreement. They alleged the Government violated their CVRA rights by entering into the agreement. 6. 'Giuffre moved to join the CVRA Action on December 30, 2014, claiming she, too, had her CVRA rights violated by the Government. On January 1, 2015, Giuffre filed a ?corrected? joinder motion. See Jane Doe 1 and Jane Doe 2 v. United States, No. Docket No. 280 (S.D. Fla. Jan. 2, 20l5) Joinder Giuffre?s joinder motion in this unrelated action included gratuitous and ?lurid? accusations. Giuffre has denied the final sentence fragment. 7. The issue presented in the joinder motion was narrow: whether Giuffre should be permitted to join the CVRA Case 18-2868, Document 287, 08/09/2019, 2628251, Page7 of 76 8 Action as a party under Federal Rule of Civil Procedure 2l, specifically, whether she was a ?known victim[] of Mr. Epstein and the Government owed them CVRA duties.? Jane Doe and Jane Doe 2 v. United States, No. Docket No. 324 (S.D. Fla. Apr. 7, 2015) Mot. at 5. Yet, ?the bulk of the [motion] consists of copious factual details that [Ms. Giuffre] and [her co?movant] ?would prove . . . if allowed to join.?? Id. Giuffre gratuitously included provocative and ?lurid details? of her alleged sexual activities as an alleged victim of sexual trafficking. Giuffre has denied that the issues presented in her joinder motion were narrow and has noted that the issues presented by the joinder motion and related pleadings were multiple and Complex, requiring numerous details about Giuffre?s sexual abuse and the listing of the perpetrators of her abuse. In a pleading explaining why the motion was filed, see Jane Doe and Jane Doe 2 v. United States, No. Docket No. 291 at 18?26 n.l7 (S.D. Fla. Jan. 2l, 2015), Giuffre?s lawyers specifically listed nine separate reasons why Jane Doe 3?s allegations that Alan Dershowitz (?Dershowitz?) had sexually abused her were relevant to the case and appropriately included in the relevant filings. Additionally, Giuffre states that Judge Case 18-2868, Document 287, 08/09/2019, 2628251, Page8 of 76 Marra?s ruling concluded that certain allegations were not necessary ?at this juncture in the proceedings,? adding that ?Jane Doe 3 is free to reassert these factual details through proper evidentiary proof, should Petitioners demonstrate a good faith basis for believing that such details are pertinent to a matter presented for the Court?s consideration.? CVRA Mot. Op. at 5?6. Giuffre notes that the CVRA litigation continues and no trial has been held as of the filing of this motion so that the extent to which these factual details will be used at trial has not yet been determined. See Docket Sheet, Jane Doe and Jane Doe 2 V. United States, No. 8. At the time they filed the motion, Giuffre and her lawyers knew that the media had been following the Epstein criminal case and the CVRA Action. While they deliberately filed the motion without disclosing Giuffre?s name, claiming the need for privacy and secrecy, they made no attempt to file the motion under seal. Quite the contrary, they filed the motion publicly. Giuffre has noted her denial as Set forth to Statement 7 above. Case 18-2868, Document 287, 08/09/2019, 2628251, Page9 of 76 9. As the district court noted in ruling on the joinder motion, Giuffre ?name[d] several individuals, and she offers details about the type of sex acts performed and where they took place.? CVRA Mot. Op. at 5. The court ruled that ?these lurid details are unnecessary,? explaining that ?[t]he factual details regarding whom and where the Jane Does engaged in sexual activities are immaterial and impertinent . . . especially considering that these details involve nonparties who are not related to the respondent Government.? Id. Accordingly, ?[tJhese unnecessary details shall be stricken.? Id. The court then struck all Giuffre?s factual allegations relating to her alleged sexual activities and her allegations of misconduct by non?parties. Id. at 6. The court said the striking of the ?lurid details? was a sanction for Giuffre?s improper inclusion of them in the motion. Id. at 7. Giuffre has noted her denial as set forth in Statement 7 above. 10. The district court in the CVRA Action found not only that the ?lurid details? were unnecessary but also that the joinder motion itself was ?entirely unnecessary.? Id. at 7. Giuffre and her lawyers knew the motion with.all its ?lurid Case 18-2868, Document 287, 08/09/2019, 2628251, Page10 of 76 details? was unnecessary because the motion itself recognized that she would be able to participate as a fact witness to achieve the same result she sought as a party. The court denied Giuffre's joinder motion. Id. at 10. Giuffre has noted her denial as set forth in Statement 7 above. ll. One of the non?parties Giuffre ?named? repeatedly in the joinder motion was Maxwell. According to the ?lurid details? of Giuffre included in the motion, Maxwell personally was involved in a ?sexual abuse and sex trafficking scheme? created by Epstein: I Maxwell ?approached? Giuffre in 1999 when Giuffre was ?fifteen years old? to recruit her into the scheme. 0 Maxwell was ?one of the main women? Epstein used to ?procure under?aged girls for sexual activities.? 0 Maxwell was a ?primary co?conspirator? with Epstein in his scheme. 0 She ?persuaded? Giuffre to go to Epstein's mansion ?in a fashion very similar to the manner in which Epstein and his other co?conspirators coerced dozens of other children.? 10 Case 18-2868, Document 287, 08/09/2019, 2628251, Pagell of 76 0 .At the mansion, when Giuffre began giving Epstein a massage, he and Ms. Maxwell ?turned it into a sexual encounter.? 0 Epstein ?with the assistance of? Maxwell ?converted [Giuffre] into . . . a ?sex slave.?? Id. Giuffre was a ?sex slave? from ?about 1999 through 2002.? 0 Maxwell also was a ?co-conspirator in Epstein?s sexual abuse.? 0 Maxwell ?appreciated the immunity? she acquired under Epstein?s plea agreement, because the immunity protected her from prosecution ?for the crimes she committed in Florida.? 0 Maxwell ?participat[ed] in the sexual abuse of [Giuffre] and others.? Maxwell ?took numerous sexually explicit pictures of underage girls involved in sexual activities, including [Giuffre].? Id. She shared the photos with Epstein. 0 .As part of her ?role in Epstein?s sexual abuse ring,? Maxwell ?connect[ed]? Epstein with ?powerful individuals? so that Epstein could traffic Giuffre to these persons. 0 Giuffre was ?forced to have sexual relations? with Prince Andrew in ?[Maxwell?s] apartment? in London. Maxwell ?facilitated? Giuffre?s sex with Prince Andrew ?by acting as a ?madame? for Epstein.? - Maxwell ?assist[ed] in internationally trafficking? Giuffre and ?numerous other young girls for sexual purposes.? 0 Giuffre was ?forced? to watch Epstein, Maxwell and others ?engage in illegal sexual acts with dozens of underage girls.? See CVRA Joinder Mot. ll Case 18-2868, Document 287, 08/09/2019, 2628251, Page12 of 76 Giuffre has denied the reference to ?lurid details? and has noted her denial as set forth in Statements 6 and 7 above and that the testimony from numerous witnesses has corroborated the statements Giuffre made in her joinder motion: 0 [Johanna Sjoberg (?Sjoberg?) May 18, 2016 Dep. Tr. at 8?9, 13, 33?35, 142?143. 0 .Anthony Figueroa (?Figueroa?) June 24, 2016 Dep. Tr. Vol. 1 at 96?97 and 103. 0 Rinaldo Rizzo (?Rizzo?) June 10, 2016 Dep. Tr. at 52?60. 0 Miller?s May 24, 2016 Dep. Tr. at 115. 0 Joseph Recarey?s June 21, 2016 Dep. Tr. at 29?30. 0 David Rodgers? June 3, 2016 Dep. Tr. at 18, 34?36. 0 Excerpted Rodgers Dep. Ex. 1 at flight #8 143391434, 1444?1446, 1464?1470, 1478?1480, 1490?1491, 1506, 1525?1526, 1528, 1570, and 1589. 0 NadiaMarcinkova (?Marcinkova?) Dep. Tr. at 10:18?21; 12:11?15; etc. 12 Case 18-2868, Document 287, 08/09/2019, 2628251, Page13 of 76 0 Sarah Kellen (?Kellen?) Dep. Tr. at 15:13- 18; 20:12?16; etc. 0 Epstein Dep. Tr. at 116:10-15; 117:18? 118:10; etc. 0 Juan Alessi (?Alessi?) DepU.S. Attorney Victim Notification Letter GIUFFRE002216-002218. 0 July 2001 New York Presbyterian Hospital Records GIUFFREOO3258-OO3290. 0 Judith Lightfoot records 0 Message Pad evidencing Maxwell arranging to have underage girls and young women come to Epstein?s home 0 ?Black Book? in which Maxwell and other household staff maintained a roster of underage girls including minors at the time the Palm Beach Police?s Investigation of Jeffrey Epstein GIUFFRE001573-00669. 13 Case 18-2868, Document 287, 08/09/2019, 2628251, Page14 of 76 0 Sex Slave books Epstein ordered from Amazon.com at GIUFFRE006581. 0 The folder Maxwell sent to Thailand with Giuffre bearing Maxwell?s phone number 0 The Palm Beach Police Report showing that Epstein used women and girls to collect underage girls for his abuse 005700. 0 Epstein?s Flight Logs showing that Maxwell flew with Giuffre 23 times 007161. 12. In the joinder motion, Giuffre also alleged she was ?forced? to have sex with Dershowitz, ?model scout? Jean Luc Brunel, and ?many other powerful men, including numerous prominent American politicians, powerful business executives, foreign presidents, a well?known Prime Minister, and other world leaders.? CVRA Joinder Mot. at 5?6. Giuffre has noted her denial as set forth in Statements 7 and 11 above. 14 Case 18-2868, Document 287, 08/08/2019, 2628251, PagelS of 76 13. Giuffre said after serving for four years as a ?sex slave,? she ?managed to escape to a foreign country and hide out from Epstein and his co?conspirators for years.? Id. at 3. Giuffre has admitted making this statement and has noted since discovered evidence that indicates she was mistaken on the exact timeframe of her abuse and was with Maxwell and Epstein?from the years 2000?2002. 14. Giuffre suggested the Government was part of Epstein?s ?conspiracy? when it ?secretly? negotiated a non? prosecution agreement with Epstein precluding federal prosecution of Epstein and his ?co?conspirators.? Id. at 6. The Government?s secrecy, Giuffre alleged, was motivated by its fear that Giuffre would raise ?powerful objections? to the agreement that would have ?shed tremendous public light? on Epstein and other powerful individuals. Id. at 6-7. Giuffre has denied that she suggested that the Government was part of Epstein?s conspiracy to commit sex offenses and has noted that the CVRA Action deals with whether the Government failed in their responsibilities to the victims 15 Case 18-2868, Document 287, 08/09/2019, 2628251, Pagel6 of 76 to inform the Victims that the Government was working out an NPA, that the Government did fail to so inform the victims, and that it intentionally did not inform the victims because the expected serious objection from many of the victims might prevent the Government from finalizing the NPA with Epstein. 15. The other ?Jane Doe? who joined Giuffre?s motion who alleged she was sexually abused on ?many occasions? by Epstein was unable to corroborate any of Giuffre's allegations. Giuffre has denied the statement and noted that the other Jane Doe could corroborate many of Giuffre's allegations based on a similar pattern of abuse by Epstein that she suffered, that she did not know Giuffre, and further has noted who was deposed in this case, and who was a minor, corroborates the same pattern of abuse. 16. In her multiple and consensual interviews with Churcher three years earlier, Giuffre told Churcher of virtually none of the details she described in the joinder motion. 16 Case 18-2868, Document 287, 08/09/2019, 2628251, Page17 of 76 Giuffre has denied the statement and noted that absence of any citation or evidence on this point and that the statement here is knowingly false based on the articles and Giuffre?s deposition. 17. As Giuffre and her lawyers expected, before Judge Marra in the CVRA Action could strike the ?lurid details? of Giuffre's allegations in the joinder motion, members of the media obtained copies of the motion. Giuffre has denied the statement as set forth in Statement 7 above. 18. At the direction of Barden, on January 2, 2015, Gow sent to numerous representatives of British media organizations an email containing ?a quotable statement on behalf of Maxwell? (the ?Press Release?). The email was sent to more than six and probably fewer than 30 media representatives. It was not sent to non?media representatives. Giuffre has denied that Mr. Barden?s direction, on January 2015, Gow sent to numerous representatives of British media organizations an email containing ?a quotable l7 Case 18-2868, Document 287, 08/09/2019, 2628251, Pagel8 of 76 statement on behalf of Maxwell?? and has noted that Gow produced an email exchange he had with Maxwell in which Maxwell directs Gow to send the Press Release as follows: 3-3-3, 2 has: 2333 23*2433 +3333 2m3mam Ca: 33233;: hardan?mnahamatm hits Saki?rah 333m?? Ethis ia than as man new ihdhri?hah Jena 5304: .3 is? 333,; aha?gm made 15,, vm?; 352mm against =i3i3aiaine Mat-await an: ?i'ha insights? 3331;131:4133: has hat may and have has remains an and smith in am: Earth aim the may i3 he this it ahames with new awn about 31033:: 333m and maid in and by at mama in 3333a wait has. ?nish its hernias Magnum shims a: as abstain he heat?? as sash awash hahfiai?aas 332131135, as they are . Giuffre has further noted that chronologically, this email comes at the end of various other email exchanges between Maxwell and Gow that discuss issuing a press release and that the subject line of this email that Maxwell wrote to Gow states this is the statement,? thereby instructing Gow to release this statement to the press. Additionally, Giuffre notes that shortly after Maxwell sent this email to Gow directing him to release the Press Release, Gow distributed it to multiple media outlets, and that no email has been produced.in which 18 Case 18-2868, Document 287, 08/09/2019, 2628251, Page19 of 76 Barden directed Gow to issue this press release. At his deposition, Gow authenticated this email and confirmed that Maxwell authorized the statement. Giuffre has noted that the email and Gow?s testimony establish that Maxwell, not Barden, directed and ?command[ed]? \Gow to publish the defamatory statement and the first sentence of the statement is false and the second sentence ?This email was sent to more than 6 and probably less than 30 media representatives? omits the fact that not only did Gow admit to emailing the statement to the press, but he also read it to over 30 media representatives over the phone. Giuffre has denied the statement. 19. Among the media representatives who received the Press Release were Martin Robinson of the Daily Mail, P. Peachey of The Independent, Nick Sommerlad of The Mirror, David Brown of The Times, Nick Always and Jo?Anne Pugh of the BBC, and David Mercer of the Press Association. These representatives were selected based on their request after the joinder motion was filed?for a response from Maxwell to Giuffre?s allegations in the motion. l9 Case 18-2868, Document 287, 08/09/2019, 2628251, Page20 of 76 Giuffre has denied the second sentence and has noted there is no record evidence that Gow (or anyone else) ?selected? journalists ?for a response,? or that there was any selection process and that Gow testified that anyone who inquired received a reference to the Press Release. 20. The email to the media members read: To Whom It May Concern, Please find attached a quotable statement on behalf of Maxwell. No further communication will be provided by her on this matter. Thanks for your understanding. Best Ross Ross Gow ACUITY Reputation Jane Doe 3 is Virginia Roberts?so not a new individual. The allegations made by Victoria Roberts against Ghislaine Maxwell are untrue. The original allegations are not new and have been fully responded to and shown to be untrue. Each time the story is re told [sic] it changes with new salacious details about public figures and world leaders and now it is alleged by Ms. Roberts [sic] that Alan Derschowitz [sic] is involved in having sexual relations with her, which he denies. Ms. Roberts claims are obvious lies and should be treated as such and not publicized as news, as they are defamatory. 20 Case 18-2868, Document 287, 08/09/2019, 2628251, Page21 of 76 Ghislaine Maxwell?s original response to the lies and defamatory claims remains the same. Maxwell strongly denies allegations of an unsavoury nature, which have appeared in the British press and elsewhere and reserves her right to seek redress at the repetition of such old defamatory claims. Giuffre has noted that the body text of the email that was sent to news media was cropped and the headings and metadata were omitted and has further noted the image of the email set forth below. 21 333333 3 3333333 23333 333 33 33333333 33333333 3.333333 33333333333333= - - 3.33333 3333 333333333 3 3333333333 3333333333: 333 33333313 33 M3 333333333 333 33.333333333333333; 3333 '33 33333333 33- 333333 3333 333333333 333331.333 3?33 33333 3333333333333 3333: 3333 33333 332331333 3333333332333 33333 3333 33333333 33 333 33333 33 33 333333 333.33 33333 3333 1333.33 E33- 33? 3331 13 3333333 3.3333 3333 3333333333 31333333 333333 3333333 {?33333 3333 33.3313! 3333333. 3331 33333 33 3'3 33333331 by 1333 333333333 3333 31333 33333- 333 13 333313331 3'3 33333333 33333 3333333333 33333 33333 33131333 '33 333333 333 33333333 33333333 333 3333333 3333 33:33 33333333 333- 33333333 33 33333 3333' 3333: 33333333333 33 333333 33 33" 33 3333333333333 33333333333 33333 33333331 33333333 33 333 3331 3333333333 31333333 33333333 3.33 333333 133333133 5.3333313 3.3333333 33333333333 33 3333 3353333333 33333333 3333333 13333 333333333 333 3333 33333313 33333 3.33 333333333 3.3331 33333333 3333 333333 :33 3333 33333333 33 3333 33333333333 33 333313 33131 3333333333 33313333 33333 333333 3333333 .1333?? 33333333 3333133 21. Barden, who prepared the Press Release, did not intend it as a traditional press release solely to disseminate information to the media, and he intentionally did not pass it through a public relations firm, such as Gow?s firm, Acuity Reputation. 22. Case 18-2868, Document 287, 08/09/2019, 2628251, Page23 of 76 Giuffre has denied the statement and has noted that the Barden Declaration should not be considered. She has further noted that there is no evidence to support any assertion of Barden?s intent and that Maxwell gave the statement to Gow with instructions to publish it. Giuffre also has denied that the statement did not pass ?through a public relations firm, such as Gow?s firm, Acuity Reputation? and has noted that record documentary evidence and testimony establish that this statement was disseminated through Gow?s firm, Acuity Reputation. 22. The Press Release served two purposes. First, Barden intended that it mitigate the harm to Maxwell?s reputation from the press?s republication of Giuffre?s false allegations. He believed these ends could be accomplished by suggesting to the media that, among other things, they should subject Giuffre?s allegations to inquiry and scrutiny. For example, he noted in the statement that Giuffre?s allegations changed dramatically over time, suggesting that they are ?obvious lies? and therefore should not be ?publicized as news.? Giuffre has denied this statement and any statement of Barden?s intent and that there was any ?republication? by the 23 Case 18-2868, Document 287, 08/09/2019, 2628251, Page24 of 76 press as a matter of law as the press did not ?republish? the press statement under New York law and that the allegations in the statement are ?false,? and cites to the evidence set forth in Statement ll above. Giuffre has further disputed that the harm to Maxwell?s reputation could be mitigated by the media?s inquiry into and scrutiny of Giuffre?s allegations, because a deeper inquiry would only reveal additional evidence corroborating Giuffre?s allegations, and has noted that the record does not establish who drafted the Press Release, and that it was ultimately Maxwell who ?noted? anything because it is her statement and that she directed that it be sent to the media and public. Giuffre has also disputed that her allegations have changed over time, ?dramatically? or otherwise, that the Press Release ?suggest[ed]? that her allegations are ?obvious lies,? because the Press ReleaSe affirmatively stated that her allegations are ?obvious lies? there is no subtlety, suggestion, or statement of opinion here. 24 Case 18-2868, Document 287, 08/09/2019, 2628251, Page25 of 76 23. Barden intended the January 2015 statement to be ?a shot across the bow? of the media, which he believed had been unduly eager to publish Giuffre?s allegations without conducting any inquiry of their own. Accordingly, in the statement he repeatedly noted that Giuffre?s allegations were ?defamatory.? In this sense, the statement was intended as a cease and desist letter to the media?recipients, letting the media?recipients understand the seriousness with which Maxwell considered the publication of Giuffre?s obviously false allegations and the legal indefensibility of their own conduct. Giuffre has denied this statement and the statement that Barden repeatedly noted that Giuffre?s allegations were ?defamatory? as he did not ?note? anything in the statement, nor does Maxwell cite to any record evidence that he did. Giuffre further denies the sentence, ?In this sense, the statement was intended as,a cease and desist letter to the media?recipients, letting the media?recipients understand the seriousness with which Maxwell considered the publication of Giuffre's obviously false allegations and the legal indefensibility of their own conduct,? as there is no record 25 Case 18-2868, Document 287, 08/09/2019, 2628251, Page26 of 76 evidence in support of this claim, and Maxwell has not cited any. 24. Consistent with his purposes as described by Maxwell, Gow?s emails prefaced the statement with the following language: ?Please find attached a quotable statement on behalf of Maxwell.? The statement was intended to be a single, one?time only, comprehensive response, quoted in full, to Giuffre?s December 30, 2014, allegations that would give the media Maxwell?s response. The purpose of the prefatory statement was to inform the media?recipients of this intent. Giuffre has disputed the statement and any statement relating to Barden?s ?purposes,? as explained above, and has noted that Gow repeatedly issued this statement via email and over the phone for months on end and that Maxwell instructed them to publish it by telling them it was ?quotable,? and hired a press agent to distribute it to the press with the intent for the press to publish the Press Release. 25. Giuffre has engaged in numerOus activities to bring attention to herself, to the prosecution and punishment of 26 Case 18-2868, Document 287, 08/09/2019, 2628251, Page27 of 76 wealthy individuals such as Epstein, and to her claimed interest of bringing light to the rights of victims of sexual abuse. Giuffre has denied that she engaged in activities to bring attention to herself but has noted that she has taken action to aid in the prosecution of her abusers, and she seeks to bring light to the rights of victims of sexual abuse. 26. Giuffre created an organization, Victims Refuse Silence, Inc., a Florida corporation, directly related to her alleged experience as a victim of sexual abuse. 27. The ?goal? of Victims Refuse Silence ?was, and continues to be, to help survivors surmount the shame, silence, and intimidation typically experienced by victims of sexual abuse.? Toward this end, Giuffre has ?dedicated her professional life to helping victims of sex trafficking.? 28. Giuffre repeatedly has sought out media organizations to discuss her alleged experience as a victim of sexual abuse. 27 Case 18-2868, Document 287, 08/09/2019, 2628251, Page28 of 76 Giuffre has denied the statement and noted that she was approached by numerous media outlets and refused to speak to most of them, that media organizations sought her out and she did not seek them out. 29. Giuffre has written the manuscript of a book she has been trying to publish detailing her alleged experience as a victim of sexual abuse and of sex trafficking in Epstein?s alleged ?sex scheme.? Giuffre has stated that this mischaracterizes these activities, that it was against a backdrop of seeking counseling that she drafted the manuscript as an ?act of empowerment? and ?a way of reframing and taking control over the narrative.? Pl.?s Opp?n at 60. Giuffre notes that she ultimately decided not to publish the manuscript. See Giuffre Dep. Tr. 249:16?18; 250:19?2Slz3. 30. Giuffre was required by Interrogatory No. 6 to identify any false statements attributed to Maxwell that were ?published globally, including within the Southern District of New York,? as Giuffre alleged in Paragraph 9 of Count One of her complaint. In response, Giuffre identified the Press Release and 28 Case 18-2868, Document 287, 08/09/2019, 2628251, Page29 of 76 nine instances in which various news media published portions of the Press Release in news articles or broadcast stories. Giuffre has denied this statement. There is no ?republication? as a matter of law and Maxwell possesses the knowledge as to where the defamatory statements were published, and Giuffre has noted that she has provided a sampling of Maxwell?s defamatory statements published by the news media and that Maxwell caused her statement to be published in an enormous number of media outlets. 29 Case 18-2868, Document 287, 08/09/2019, 2628251, Page30 of 76 REDQED, . 31111 DDE 3 1 Virgma 1111313315 DADEW 11111131111131 1113113- 1111 1313111113 33311111 11133113111 31E 1111311131 3111233111133 31E DEE DEW 31111 DEED 1'11 311d- 311-DEED .13. 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In none of the nine instances was there any publication of the entire Press Release. Giuffre has noted extensive evidence of the mass distribution of Maxwell?s defamatory statement to over 66 million viewers as stated by her expert witness James Jansen (?Jansen?). 32. Maxwell and her agents exercised no control or authority over any media organization, including the media identified in Giuffre?s_response to Interrogatory No. 6, in connection with the media?s publication of portions of the Press Release Giuffre has disputed this statement and noted it is completely devoid of record evidence and that the record establishes that Maxwell hired Gow because his position allowed him to influence the press to publish her defamatory statement, Dep. Tr. at 13:9-16; 15:18?16:3; 109212?22; llO:l6-21; and that Maxwell caused her statement to be published by numerous major news organizations with wide readership all over the globe. 3l Case 18-2868, Document 287, 08/09/2019, 2628251, Page32 of 76 33. Eight years after Epstein?s guilty plea in Florida, Giuffre brought this action, repeating many of the allegations she made in her CVRA joinder motion. Giuffre has noted that the defamation cause of action against Maxwell did not accrue until Maxwell defamed her in January of 2015. 34. The complaint alleged that the January 2015 statement ?contained the following deliberate falsehoods?: That Giuffre?s sworn allegations ?against Ghislaine Maxwell are untrue.? That the allegations have been ?shown to be untrue.? That Giuffre?s ?claims are obvious lies.? 35. Giuffre lived independently from her parents with her fiance long before meeting Epstein or Maxwell. After leaving the Growing Together drug rehabilitation facility in 1999, Giuffre moved in with the family of a fellow patient. There she 32 Case 18-2868, Document 287, 08/09/2019, 2628251, Page33 of 76 met, and became engaged to, her friend?s brother, James Michael Austrich (?Austrich?). She and Austrich thereafter rented an apartment in the Ft. Lauderdale area with another friend and both worked at various jobs in that area. Later, they stayed briefly with Giuffre?s parents in the Palm Beach/Loxahatchee, Florida area before Austrich rented an apartment for the couple on Bent Oak Drive in Royal Palm Beach. Although Giuffre agreed to marry Austrich, she never had any intention of doing so. Giuffre has denied that she voluntarily lived independently from her parents with her fiance; she states that she was a troubled minor child who was not realistically engaged prior to meeting Maxwell and Epstein, as she was not of legal age to marry. She confirms she had no intention of marrying Austrich. 36. Giuffre re?enrolled in high school from June 21, 2000 until March 7, 2002. After finishing the 9th grade school year at Forest Hills High School on June 9, 1999, Giuffre re? enrolled at Wellington Adult High School on June 21, 2000, again on August 16, 2000 and on August 14, 2001. On September 20, 2001, Giuffre then enrolled at Royal Palm Beach High School. A few weeks later, on October 12, 2001, she matriculated at 33 Case 18-2868, Document 287, 08/09/2019, 2628251, Page34 of 76 Survivors Charter School. Survivor?s Charter School was an alternative school designed to assist students who had been unsuccessful at more traditional schools. Giuffre remained enrolled at Survivor?s Charter School until March 7, 2002. She was present 56 days and absent 13 days during her time there. Giuffre never received her high school diploma or GED. The school day at Survivor's Charter School lasted from morning until early afternoon. Giuffre has denied the statement and has noted that Giuffre?s school transcripts indicate COURSES for the 1999?2000 and 2000?200l school years and that her attempt to work and resume school at Survivor?s Charter School as a 10th grader in the 2001?2002 school year was limited to a portion of the school year, spanning fewer than six months from October 2001 to March 7, 2002. She states that she attempted to get away from Epstein?s abuse and that the records indicate that Giuffre?s attendance was poor, with 69 days present and 32 days absent out of a required l80 day school year. She was not enrolled at the end of the school year. Her presence on flights with Epstein, verified by Epstein?s pilot on flight logs, and an abundance of witness testimony corroborate her story that she was flying domestic and internationally with Epstein at least 32 34 Case 18-2868, Document 287, 08/09/2019, 2628251, Page35 of 76 times between December ll, 2000 to July 28, 2001 and June 21, 2002 to August 21, 2002. 37. During the year 2000, Giuffre worked numerous jobs. In 2000, while living with her fiance, Giuffre held five different jobs: at Aviculture Breeding and Research Center, Southeast Employee Management Company, The Club at Mar?a-Lago, Oasis Outsourcing, and Neiman Marcus. Her taxable earnings that year totaled nearly $9,000. Giuffre cannot now recall either the Southeast Employee Management Company or the Oasis Outsourcing jobs. Giuffre has disputed the statement and has noted that while she held various jobs in 2000, Social Security Administration records do not show the exact dates of employment (month and day) because they do not need this information to figure Social Security benefits. She states that neither Southeast Employee Management Company nor Oasis Outsourcing were her employers. She states that she worked at Taco Bell, as well as a pet store, but that neither of these are listed on her Social Security Administration records because they were most likely paid through payroll companies. She subsequently worked at Mar?a?Lago. She also volunteered at Aviculture Breeding and 35 Case 18-2868, Document 287, 08/09/2019, 2628251, Page36 of 76 Research Center, where they eventually put her on the payroll but paid her very little. 38. Giuffre?s employment at The Mar?a?Lago spa began in fall 2000. Giuffre?s father, Sky Roberts was hired as a maintenance worker at lhe Mar?a?Lago Club in Palm Beach, Florida, beginning on April 11, 2000. Roberts worked ,there year?round for approximately 3 years. After working there for a period of time, Roberts became acquainted with the head of the spa area and recommended Giuffre for a job there. Mar?a?Lago closes every Mother?s Day and reopens on November 1. Most employees at Mar?a?Lago, including all employees of the spa area such as ?spa attendants,? are ?seasonal? and work only when the club is open, between November 1 and Mother?s Day. Giuffre was hired as a ?seasonal" spa attendant to work at the Mar-a? Lago Club in the fall of 2000 after she had turned 17. Giuffre has disputed the statement and noted that the Mar?a?Lago Club produced 177 pages of records in response to Maxwell?s subpoena which did not indiCate Giuffre?s actual dates of employment, nOr whether she was a full?time or seasonal employee. The only significant record produced was a single, 36 Case 18-2868, Document 287, 08/09/2019, 2628251, Page37 of 76 vague chart entry indicating that Giuffre was terminated in 2000 and that Mar?a?Lago was a summer job. 39. Giuffre represented herself as a masseuse for Epstein. While working at the Mar?a?Lago spa and reading a library book about massage, Giuffre met Maxwell. Giuffre thereafter told her father that she got a job working for Epstein as a masseuse. Giuffre?s father took her to Epstein?s house on one occasion around that time, and Epstein came outside and introduced himself to Roberts. Giuffre commenced employment as a traveling masseuse for Epstein. Giuffre was excited about her job as a masseuse, about traveling with him and about meeting famous people. Giuffre represented that she was employed as a masseuse beginning in January 2001. Giuffre never mentioned Maxwell to Austrich. Giuffre?s father never met Maxwell. Giuffre has denied the statement and has noted that in Florida, a person cannot work as a masseuse unless she is ?at least 18 years of age or has received a high school diploma or high school equivalency diploma,? Fla. Stat. 480.04l. She was a minor child, under the age of 18, when she was working at Mar? a?Lago as a spa attendant and was approached by Maxwell who told her she could make money as a masseuse, a profession in which 37 Case 18-2868, Document 287, 08/09/2019, 2628251, Page38 of 76 Giuffre had no experience. She states that her father drove her to Epstein?s house, the address of which was given to her by Maxwell, that she was led into the house and instructed by Maxwell on how to give a massage. She states that Epstein and Maxwell turned the massage into a sexual encounter, and offered her money and a better life to be compliant in the sexual demands of Maxwell and Epstein. She then began travelling with Maxwell and Epstein on private planes and servicing people sexually for money working not as a legitimate masseuse, but in a position of sexual servitude. Giuffre further noted that Epstein?s house manager, Alessi, described Maxwell?s methodical routine of how she prepared a list of places ahead of time, then drove to each place for the purpose of recruiting girls to. massage Epstein. Alessi stated that on multiple occasions he drove Maxwell to pre?planned places while she recruited girls for massage, and that he witnessed Giuffre at Epstein?s house on the very same day that he witnessed Maxwell reoruit Giuffre from Mar?a-Lago. Giuffre further noted Sjoberg?s testimony that she was similarly recruited. 40. In spring 200l, while living with Austrich, Giuffre lied to and cheated on him with Figueroa, her high school boyfriend. Giuffre and Austrich thereafter broke up, and 38 Case 18-2868, Document 287, 08/09/2019, 2628251, Page39 of 76 Figueroa moved into the Bent Oak apartment with Giuffre. When Austrich returned to the Bent Oak apartment to check on his pets and retrieve his belongings, Figueroa punched Austrich in the face. Figueroa and Giuffre fled the scene before police arrived. Figueroa was then a convicted felon and a drug abuser on probation for possession of a controlled substance. Giuffre has objected to the statement as irrelevant and unrelated to the allegations made in Giuffre?s complaint against Maxwell and the alleged information should be excluded by multiple rules of evidence, and has been contested by Giuffre. 41. Giuffre freely and voluntarily contacted the police to come to her aid in 2001 and 2002 but never reported to ,them that she was Epstein?s ?sex slave.? In August 2001 at age 17, while living in the same apartment, Giuffre and Figueroa hosted a party with a number of guests. During the party, according to Giuffre, someone entered Giuffre?s room and stole $500 from her shirt pocket. Giuffre contacted the police. She met and spoke with police officers regarding the incident and filed a report. She did not disclose to the officer that she was a ?sex slave.? A second time, in June 2002, Giuffre contacted 39 Case 18-2868, Document 287, 08/09/2019, 2628251, Page40 of 76 the police to report that her former landlord had left her belongings by the roadside and had lit her mattress on fire. Again, Giuffre met and spoke with the law enforcement officers but did not complain that she was the victim of any sexual trafficking or abuse or that she was then being held as a sex slave.? Giuffre has objected to the statement as misleading and irrelevant and further noted that she was fearful of Maxwell and Epstein, and, accordingly, she would not have reported her abusers and noted that she knew that Epstein had control over the Palm Beach Police. 42. From August 2001 until September 2002, Epstein and Maxwell were almost entirely absent from Florida on documented travel unaccompanied by Giuffre. Flight logs maintained by Dave Rodgers (?Rodgers?), Epstein?s private pilot, evidence the substantial number of trips away from Florida that Epstein and Maxwell took, unaccompanied by Giuffre, between August 2001 and September 2002. Rodgers maintained a log of all flights on which Epstein and Maxwell traveled with him. Epstein additionally traveled with another pilot who did not keep such logs and he also occasionally traveled via commercial flights. 40 Case 18-2868, Document 287, 08/09/2019, 2628251, Page4l of 76 For substantially all of thirteen months of the twenty?two month period from November 2000 to September 2002, Epstein was traveling outside of Florida unaccompanied by Giuffre. During this same period of time, Giuffre was employed at various jobs, enrolled in school, and living with her boyfriend. Giuffre has disputed this statement and noted the flight logs produced in this matter provide substantive evidence of Giuffre?s travel while in the control of Maxwell and Epstein, but are incomplete as Giuffre also was flown by Maxwell on commercial flights. The flight logs and pilot testimony clearly prove that Giuffre was flying domestic and internationally with Epstein at least 32 times between December 11, 2000 to July 28, 2001 and June 21, 2002 to August 21, 2002. Maxwell has acknowledged the flight logs are incomplete and that there were several pilots and co?pilots that flew Epstein and Maxwell Rodgers, Lawrence ?Larry? Visoski, Bill Hammond, Pete Rathgeb, Gary Roxburgh, and Bill Murphy) in multiple aircrafts and that only Rodgers produced flight records. Giuffre states that Maxwell has also acknowledged that many of the girls recruited by Maxwell routinely traveled on commercial flights for the purposes of providing massages to Epstein or guests at Epstein?s New York, New Mexico, or U.S. Virgin Island homes. 41 Case 18-2868, Document 287, 08/09/2019, 2628251, Page42 of 76 Giuffre has further noted that her passport application, travel records, and witness testimony demonstrate flight logs are incomplete, that she also flew commercially while she worked for Maxwell and Epstein. Her passport application, for example, listed travel plans to London, and subsequent flight logs listed Giuffre traveling to London with Maxwell, Epstein, and others. Giuffre has cited the evidence she contends establish her travel with Epstein and Maxwell, including massage training in Thailand. 43. Giuffre and Figueroa shared a ?93 white Pontiac in 2001 and 2002. Giuffre freely traveled around the Palm Beach area in that vehicle. In August 2002, Giuffre acquired a Dodge Dakota pickup truck from her father. Figueroa used that vehicle in a series of crimes before and after Giuffre left for Thailand. Giuffre has denied the statement and has noted that she purchased a car from the $10,000 payment she received from Epstein after she was forced to have sex with PrinCe Andrew in London at Maxwell?s home. 42 Case 18-2868, Document 287, 08/09/2019, 2628251, Page43 of 76 44. Giuffre held a number of jobs in 2001 and 2002. During 2001 and 2002, Giuffre was gainfully employed at several jobs. She worked as a waitress at Mannino?s Restaurant, at TGIFriday?s restaurant of Royal Palm and at Roadhouse Grill. She also was employed at Courtyard Animal Hospital (?Marc Pinkwasser Giuffre has denied the statement and noted that in 2001 and 2002 she attempted to go back to school to earn her GED, and tried unsuccessfully to hold down waitressing jobs. She earned $212.00 as a waitress working ?briefly? at Mannino?s Restaurant and, in 2002, earned $403.64 working at the TGIFriday?s restaurant of Royal Palm Beach?) for a ?short time period.? She earned about $1,247.90 at Roadhouse Grill until about March 2002, and at the Courtyard Animal Hospital '(?Marc Pinkwasser she received payroll checks for weeks ending April 22, 2002 to June 4, 2002, earning a total of $1,561.75. Not long after she lost her job at the Courtyard Animal Hospital, she was traveling with Maxwell to the Bahamas, Santa Fe, New Mexico, and New York. 45. Giuffre traveled to Thailand in September 2002 to receive formal training as a masseuse. Figueroa drove her to the 43 Case 18-2868, Document 287, 08/09/2019, 2628251, Page44 of 76 airport. While there, she initially contacted Figueroa frequently, incurring a phone bill of $4,000. She then met Robert Giuffre while in Thailand and decided to marry him. She thereafter ceased all contact with Figueroa from October 2002 until two days before Figueroa?s deposition in this matter in May 2016. Giuffre admitted traveling to Thailand to receive massage training in September 2002 but noted that she was given an assignment from Maxwell and Epstein that she had to recruit another underage girl from Thailand, and bring that young girl back to Epstein. Giuffre stated that she was expected to return to Epstein and Maxwell upon completion of her massage training and assignment, and that instead she escaped to Australia where she remained in hiding from Maxwell and Epstein for several years. 46. Detective Joseph Recarey (?Recarey?) investigated Epstein and failed to uncover any evidence that Maxwell was involved in sexual abuse of minors, sexual trafficking or production or possession of child pornography. Recarey served as the lead detective from the Palm Beach Police Department charged with investigating Epstein. That investigation commenced in 44 Case 18-2868, Document 287, 08/09/2019, 2628251, Page45 of 76 2005. Recarey worked only on the Epstein case for an entire year. He reviewed previous officers? reports and interviews, conducted numerous interviews of witnesses and alleged victims himself, reviewed surveillance footage of the Epstein home, participated in and had knowledge of the search warrant executed on the Epstein home, and testified regarding the case before the Florida state grand jury against Epstein. Recarey?s investigation revealed that not one of the alleged Epstein victims ever mentioned Maxwell?s name and she was never considered a suspect by the Government. None of Epstein?s alleged victims said they had seen Maxwell at Epstein?s house, nor said they had been ?recruited by her,? nor paid any money by her, nor told what to wear or how to act by her. Indeed, none of Epstein?s alleged victims ever reported to the Government they had met or spoken to Maxwell. Maxwell was not seen coming or going from the house during the law enforcement surveillance of Epstein?s home. The arrest warrant did not mention Maxwell and her name was never mentioned before the grand jury. No property belonging to Maxwell, including sex toys? or ?child pornography,? was seized from Epstein?s home during execution of the search warrant. Recarey, when asked to describe ?everything that you believe you know about Ghislaine 45 Case 18-2868, Document 287, 08/09/2019, 2628251, Page46 of 76 Maxwell?s sexual trafficking conduct,? replied, don?t.? He confirmed he has no knowledge about Maxwell sexually trafficking anybody. Recarey also has no knowledge of Giuffre?s conduct that is subject of this lawsuit. Giuffre has denied the statement and noted that Recarey wanted to speak to Maxwell, but she did not return his calls and he concluded that Maxwell?s role was to procure girls for Epstein. Giuffre further noted that in the execution of the search warrant, stationary was found in the home bearing Maxwell?s name, and notes were written by house staff to Maxwell and message pads uncovered in trash pulls revealing numerous calls left at the house for Maxwell, indicating she was staying in the house during the days when Epstein was engaging in illegal sex acts with minors. Giuffre further noted that a walk through video taken during the execution of the search warrant revealed photos of topless females at the home, including a photograph of Maxwell naked hanging in the home. Alfredo Rodriguez (?Rodriguez?), the house butler from 2004 through 2005, a time period that included daily sexual abuse of underage females, testified that Maxwell kept a list of the local girls who were giving massages at her desk, and that Maxwell kept nude photos of girls on her computer. Giuffre states that Recarey 46 Case 18-28-68, Document 287, 08/09/2019, 2628251, Page47 of 76 testified that when the search warrant was executed, the house had been sanitized and the computers removed from the home. Giuffre states that the co?conspirator who maintained direct contact with the many underage victims was Kellen, whose sole responsibility was to schedule underage girls to visit Epstein for sex and reported directly to Maxwell. Figueroa testified that Maxwell personally requested that he find and bring girls to Epstein for sex once Giuffre had escaped, and that when he brought the girls Maxwell interacted with them, that Maxwell was ?the boss? and that she knew everything that was going on. 47. No nude photograph of Giuffre was displayed in ?Epstein?s home. Epstein?s housekeeper, Alessi, ?never saw any photographs of Virginia Roberts [Giuffre] in Epstein?s house.? Recarey entered Epstein?s home in 2002 to install security cameras to catch a thief and did not observe any ?child pornography? within the home, including on Epstein?s desk in his office. Giuffre has denied this statement and noted that Maxwell had pornography on her computer, that there was a 47 Case 18-2868, Document 287, 08/09/2019, 2628251, Page48 of 76 collage of nude photos in Epstein?s closet, that the collage was taken into evidence by Recarey, who testified to that fact in his deposition, that Rizzo, a visitor to the home on numerous occasions, was reprimanded by Maxwell for looking at the nude photos, and that the search warrant revealed photographs of nudity displayed, including a photograph of Maxwell herself in the nude. Sjorberg testified that Maxwell bought her a camera for the specific purpose of her taking nude photos of herself and Giuffre has testified that there was a nude photograph of lher at the house. 48. Giuffre drafted a ?journal? describing individuals to whom she claims she was sexually trafficked as well as her memories and thoughts about her experiences with Epstein. In 2013, she and her husband created a bonfire in her backyard in Florida and burned the journal together with other documents in her possession. Giuffre also kept a ?dream journal? regarding her thoughts and memories that she possessed in January 2016. To date, Giuffre cannot locate the ?dream journal.? 49. Giuffre publicly peddled her story beginning in 2011. Giuffre granted journalist Churcher extensive interviews 48 Case 18-2868, Document 287, 08/09/2019, 2628251, Page49 of 76 that resulted in seven widely distributed articles from March. 2011 through January 2015. Churcher regularly communicated With Giuffre and her ?attorneys or other agents? from ?early 2011? to ?the present day.? Giuffre received approximately $160,000 for her stories and pictures that were published bymany news organizations. Giuffre has denied this statement in part and admitted it in part, noting that in 2011, Giuffre was still in hiding from Epstein and Maxwell in Australia and not looking to sell anything or even speak with anyone about what had happened to her. Churcher located Giuffre and impressed the importance of Giuffre standing up to those who had harmed her and speaking with federal authorities. Giuffre did so in 2011, bringing the abuse of Maxwell and Epstein to public light to prevent their continued abuse of others. Giuffre agreed to be interviewed by Churcher and was compensated for sharing her story, which came at the heavy price of being publicly scrutinized. 50. Giuffre drafted a l44?page purportedly autobiographical book manuscript in 2011 which she actively sought to publish. In 2011, contemporaneous with her Churcher interviews, Giuffre drafted a book manuscript which purported to 49 Case 18-2868, Document 287, 08/09/2019, 2628251, Page50 of 76 document Giuffre?s experiences as a teenager in Florida, including her interactions with Epstein and Maxwell. Giuffre communicated with literary agents, ghost writers, and potential independent publishers in an effort to get her book published. She generated marketing materials and circulated those along with book chapters to numerous individuals associated with publishing and the media. Giuffre has denied the statement in part and admitted it in part, stating that she received a Victim Notification Letter from the United States Attorney?s office for the Southern District of Florida regarding her sexual victimization by Epstein, that in 2011 she sought counseling from a for the trauma she endured, and that also that year Churcher sought her out and interviewed her. Giuffre was interviewed by the FBI in-ZOll. Giuffre has noted that she began to draft a fictionalized account of what happened to her as an act of empowerment and a way of reframing and taking control over the narrative of her past abuse that haunts her and, while she explored trying to publish her story to empower other individuals who were subject to abuse, she ultimately decided not to publish it. 50 Case 18-2868, Document 287, 08/09/2019, 2628251, Page51 of 76 51. The CVRA joinder motion filed by Giuffre generated a media maelstrom and spawned highly publicized litigation between Giuffre?s lawyers Bradley Edwards (?Edwards?) and Paul Cassell (?Cassell?) and Dershowitz. After Giuffre publicly accused Dershowitz of sexual misconduct, Dershowitz vigorously defended himself in the media. He called Giuffre a liar and accused her lawyers of unethical conduct. In response, Edwards and Cassell sued Dershowitz, who counterclaimed. This litigation, in turn, cauSed additional media attention by national and international media organization. Giuffre has denied the statement as set forth in Statement 7. 52. Giuffre formed non-profit Victims Refuse Silence to attract publicity and speak out on a public controversy. In 20l4, Giuffre, with the assistance of the same counsel, formed a non?profit organization, Victims Refuse Silence. According to Giuffre, the purpose of the organization is to promote Giuffre?s professed cause against sex slavery. The stated goal of her organization is to help survivors surmount the shame, silence, and intimidation typically experienced by victims of sexual 51 .. Case 18-2868, Document 287, 08/09/2019, 2628251, Page52 of 76 abuse. Giuffre attempts to promote Victims Refuse Silence at every opportunity. For example, Giuffre participated in an interview in New York with ABC to promote the charity and to get her mission out to the public. Giuffre has denied that she formed the non?profit Victims Refuse Silence to ?speak out on a public controversy,? and noted she sought to help survivors of sexual abuse and sexual trafficking and in order to provide assistance to victims, she attempted to talk about the non?profit?s mission when she had the opportunity to do so. 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.? Fed. R. Civ. P. 56(c). ?[T]he substantive law will identify which facts are material.? Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is ?genuine? if ?the evidence is such that a reasonable jury could return a verdict for the nonmoving party.? 52 Case 18-2868, Document 287, 08/09/2019, 2628251, Page53 of 76 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 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 defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.? Anderson, 477 U.S. at 247?48 (emphasis in original). While the moving party bears the initial burden of showing that no genuine issue of material fact exists, Atl. 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 Case 18-2868, Document 287, 08/09/2019, 2628251, Page54 of 76 to a lack of evidence . . . on an essential element of the non? movant?s claim . . . . [T]he nonmoving party must [then] come forward with admissible evidence sufficient to raise a genuine -issue of fact for trial . . . Jaramillo v. weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see also Goenaga V. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (?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 Giuffre?s 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 54 Case 18-2868, Document 287, 08/09/2019, 2628251, Page55 of 76 V. Costa?Gavras, 580 F. Supp. 1082, 1096 (S.D.N.Y. 1984); see also Hoffman V. Landers, 146 744, 747 (N.Y. App. Div. 2d Dep?t 1989) (?One who makes a defamatory statement is not responsible for its recommunication without his authority or request by another over whom he has no 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 master?s power of control.? Davis, 580 F. Supp. at 1096 (internal quotation marks and citation omitted). The New York Court of Appeals summarized New York?s republication liability standard in Geraci V. Probst, 938 917 (N.Y. 2010), 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. 938 at 921 (internal quotation marks and citation omitted). Thus, ?conclusive evidence of lack of actual authority [is] sufficiently dispositive that the [court] ?ha[s] no option but to dismiss the case . . . Davis, 580 F. Supp. at 1096 55 Case 18-2868, Document 287, 08/09/2019, 2628251, Page56 of 76 (quoting Rinaldi v. Viking Penguin, Inc., 420 377, 382 (N.Y. 1981)). However, New York law assigns liability 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, 132 961, 962?63 (N.Y. App. Div. 2d Dep?t 2015) (?Generally, [o]ne 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 see also OF Twas 576 (1977) (?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 . . . the repetition 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 Case 18-2868, Document 287, 08/09/2019, 2628251, Page57 of 76 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 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., 79 592, 595 (N.Y. App. Div. Dep?t 2010) (affirming the refusal to dismiss defamation counts against a defendant who ?submitted an open letter that was published in newspaper, and that [the defendant] paid to have the open letter published,? finding that the defendant ?authorized [the newspaper] to recommunicate his Maxwell has cited Geraci v. 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.? 938 at 919. Here, unlike in Geraci, the Press Release was not published ?without [her] authority or request,? but rather with Maxwell?s authority and 57 Case 18-2868, Document 287, 08/09/2019, 2628251, Page58 of 76 by her express request. Gow?s testimony establishes Maxwell?s authority and control over the Press Release: Q. When you sent that email were you acting pursuant to Ms. Maxwell?s retention of your services? A. Yes, I was Q. The subject line does have which to me indicates it?s 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, I?ll 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 v. Costa?Gavras, involving a libel claim against an author who wrote a book about a military 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 he was aware of the 58 Case 18-2868, Document 287, 08/09/2019, 2628251, Page59 of 76 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.? 580 F. Supp. at 1094 (internal citations omitted). The court further noted that ?active participation in implementing the republication resurrects the liability.? Id. Likewise, in Karaduman v. Newsday, Inc., 416 557 (1980), 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 559? 560. However, the court explicitly noted that this result 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 participated? in influencing 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, 416 at 560. Maxwell retained a public relations media 59 Case 18-2868, Document 287, 08/09/2019, 2628251, Page60 of 76 specialist. The Press Release was sent by Maxwell's express request. Gow?s 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 Maxwell?s authority and control over the publication of the Press Release, Maxwell?s liability for the Press Release?s publication survives the motion for summary judgment. Maxwell has additionally asserted that subjecting her to liability for republication is ?particularly unfair? because excerpts of the Press Release, rather than the whole statement, were published. Def.?s Reply at 9. Maxwell cites to Rand V. New York Times Co., 75 4l7 (N.Y. App. Div. 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 guoted, accurately and unchanged. The publication of Maxwell?s statement that Giuffre?s claims are ?obvious lies? 6O Case 18-2868, Document 287, 08/09/2019, 2628251, Page61 of 76 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 39. Whether or not Giuffre lied about Maxwell?s involvement in the events that Giuffre has alleged took place is the intensely contested factual issue that is the foundation of this action. Accordingly, summary judgment is not appropriate. See Mitre Sports Intern. Ltd. v. Home Box Office, Inc., 22 F. Supp. 3d 240, 255 (S.D.N.Y. 2014) (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 v. Time Inc., 908 F. Supp. 184, 187 (S.D.N.Y. 1995) (denying motion for summary judgment because there was a genuine issue of 61 Case 18-2868, Document 287, 08/09/2019, 2628251, Page62 of 76 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 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, ?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. v. Professionals Publishing, Inc., 784 F.2d 141, 146 (2d Cir. 1986); see also KOrkala v. W.W. Norton Co., 618 F.Supp. 152, 155 (S.D.N.Y. 1985) (?Slight inaccuracies 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) (?Defendant is permitted to prove the substantial truth of this statement by establishing any other proposition that has the 62 Case 18-2868, Document 287, 08/09/2019, 2628251, Page63 of 76 same ?gist? or ?sting? as the original libel, that is, the same effect on the mind of the The Honorable Loretta A. Preska has noted that cases addressing whether a statement is substantially true ?fall along a broad spectrum.? Jewell, 23 F. Supp. at 367. There are cases in which a statement is non?actionable because it is completely true. See, Carter, 233 473, 474 (N.Y. App. Div. 2d Dep?t 1996) (claim that defendant committed libel by informing -the authorities that plaintiff was endorsing checks made payable to the defendant and 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 ?one struggles to identify any area of ambiguity as to truth.? Jewell, 23 F. Supp. at 368; see, Miller v. JOurnal?News, 211 626, 627 (N.Y. App. Div. 2d Dep?t 1995) (statement that plaintiff was ?suspended? substantially true where plaintiff was placed on ?administrative leave?). There are cases where the line between the statement and the admitted truth is more tenuous, but the overall ?gist? cannot be said to be substantially different. See, 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 substantially true 63 Case 18-2868, Document 287, 08/09/2019, 2628251, Page64 of 76 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, 23 F. Supp. at 368. For example, the court in Da Silva, 908 F. Supp. at 186?87, 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. Maxwell has cited to various facts to counter Giuffre?s claims, such as Giuffre?s high school enrollment, short?term jobs, and lack of record on private flight logs during some of the relevant time period, as evidence that Maxwell and Epstein did not abuse Giuffre. The details and significance of the facts offered are highly contested, and therefore cannot establish the ?substantial truth? of the Press Release. ?[R]easonable jurors could conclude that the statements 64 Case 18-2868, Document 287, 08/09/2019, 2628251, Page65 of 76 are not substantially 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 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 Maxwell?s 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. 1. The Press Release is Net Opinion. As previously held, Maxwell?s statement that Giuffre?s claims of sexual assault are lies is not an expression of opinion: 65 Case 18-2868, Document 287, 08/09/2019, 2628251, Page66 of 76 First, statements that Giuffre?s 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 [Maxwell]?s 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 [Maxwell]?s statements have the effect of generally denying Giuffre?s story, they also clearly constitute fact to the reader. Giuffre v. Maxwell, 165 F. Supp. 3d 147, 152 (S.D.N.Y. 2016). This Court further concluded that [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. [Maxwell]?s statements clearly imply that the denials are based on facts separate and contradictory to those that [Giuffre] has alleged. Id. 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 22 (quoting Aronson v. Wiersma, 483 1138, 1139 (1985)). However, the ultimate 66 Case 18-2868, Document 287, 08/09/2019, 2628251, Page67 of 76 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 Giuffre?s abuse as Giuffre has claimed. Either Giuffre is telling the truth 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 revisited and revised when considering the summary judgment motion since the standard for deciding a Rule 12(b)(6) motion is different from the standard for deciding a Rule 56 motion. In deciding a 12(b)(6) motion, 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 contrast, for a Rule 56 motion, the plaintiff defending the motion may not ?rest on [the] allegations? in her complaint. Anderson, 477 U.S. at 249. 67 Case 18-2868, Document 287, 08/09/2019, 2628251, Page68 of 76 In deciding its motion to dismiss opinion, the Court relied on Davis v. Boeheim, 22 999 (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 that inquiry, three factors enumerated in Davis were applied. See id. These three factors are the same as the four factors in Immuno AG v. Meor?Jankowski, 567 1270 (N.Y. 1991); the difference is that the Davis court collapsed the Immuno third and fourth factors into one. See Davis, 22 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. (citing Immuno, 567 at 1280). 68 Case 18-2868, Document 287, 08/09/2019, 2628251, Page69 of 76 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.?s Br. 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." Id. At the motion to dismiss stage, the text of the Press Release 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, Barden?s intent, a factual issue in contest, notwithstanding. The issue of truth or falsity is a factual determination, not a matter of opinion. See Giuffre, 165 F. Supp. 3d at 152 that Giuffre?s claims ?against [Maxwell] are untrue,? have been ?shown to be untrue,? and are ?obvious lies? have a specific and readily understood factual 69 I Case 18-2868, Document 287, 08/09/2019, 2628251, Page70 of 76 2. The Pre?Litigation Privilege is Inapplicable. Maxwell has contended that the pre?litigation privilege as enunciated in Front, Inc. V. Khalil, 28 15, 16 (N.Y. 2015), applies. See Def.?s Br. at 33. privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable.? Park Knoll Assocs. v. Schmidt, 451 182, 184 (N.Y. 1983). is well?settled that statements made in the course of litigation are entitled to absolute privilege.? Front, 28 at 18. 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 v. Mthife, Inc., 866 439, 443 (N.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 are privileged if (1) the attorney has ?a good faith basis to anticipate litigation? and (2) the statements are ?pertinent to that anticipated litigation.? Id. at 20. 7O Case 18-2868, Document 287, 08/09/2019, 2628251, Page7l of 76 The anticipated litigation, according to the Press Release, was ?redress at the repetition of such old defamatory claims.? See Press Release. According to Barden, Maxwell?s lawyer, he participated in the preparation of the Press Release, the purpose of the Press Release was to dissuade the media from publishing Giuffre?s allegations, and the implication of the Press Release was that any redress sought by Maxwell would be against the media. Giuffre has disputed Barden?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 Giuffre, in that they involve communications to or from parties to the ultimate litigation. See, Kirk v. Heppt, 532 F. Supp. 2d 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 justiciable controversy against the attorney over which the clients actually sued); Black v. Green Harbour Homeowners? Ass?n, Inc., l9 962, 963 (N.Y. App. Div. 3d Dep?t 2005) (privilege applied to a letter sent by a home owner?s association board of directors to the association?s members informing them of the status of litigation to which the 7l Case 18-2868, Document 287, 08/09/2019, 2628251, Page72 of 76 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 Opp?n at 42. 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 v. Paxfire, Inc., No. 11 CIV. 5436 (LGS), 2017 WL 177652, at *5 (S.D.N.Y. Jan. 17, 2017); see Front, 28 at l6?l7. The Second Circuit ?summarily rejected this interpretation when it applied Front to an attorney?s communicatiOns to the press.? See Tacopina v. ?O?Keeffe, 645 F. 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 has still not sustained his burden of showing that the statements were not pertinent to a good faith anticipated 72 Case 18-2868, Document 287, 08/09/2019, 2628251, Page73 of 76 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, 28 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 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 deposition. While Maxwell herself did not disseminate the email to the media recipients, 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 further communication will be provided by her [Maxwell] on this matter.? There is no evidence in the email 73 Case 18-2868, Document 287, 08/09/2019, 2628251, Page74 of 76 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 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, ?[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 rinappropriate purpose of ?harass]ment],? and See Front, 28 at 19 (2015). According to Giuffre, there is ample record evidence that Maxwell acted 74 Case 18-2868, Document 287, 08/09/2019, 2628251, Page75 of 76 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 Case 18-2868, Document 287, 08/09/2019, 2628251, Page76 of 76 VII. Conclusion 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 March24p, 2017 Lots?(7? OBERT w. SWEET U.S.D.J. 76