In the defamation case Virginia Giuffre brought against Ghislaine Maxwell beginning in 2015, Maxwell responded with a motion for summary judgment—arguing that Giuffre’s allegations were not legally defamatory and that Maxwell was entitled to judgment as a matter of law. That motion aimed to avoid a trial by asserting that even if all of Giuffre’s allegations were true, they did not meet the legal threshold for defamation. The motion, along with supporting documents, was filed under seal during pre-trial proceedings. Ultimately, the district court did not grant the motion, and the case was later settled out of court under confidentiality terms in 2017.
When third parties later moved to unseal portions of the sealed record, particularly filings related to the summary judgment motion, the courts determined that these materials were judicial documents subject to a strong presumption of public access. A federal appeals court ordered their partial release because Maxwell had not shown sufficient reasons to overcome the public’s right of access. In other words, although Maxwell sought to dispose of the case quietly and legally via summary judgment—and shield that process from public view—those efforts were rejected, and important portions of the case were ultimately made part of the public record.
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When third parties later moved to unseal portions of the sealed record, particularly filings related to the summary judgment motion, the courts determined that these materials were judicial documents subject to a strong presumption of public access. A federal appeals court ordered their partial release because Maxwell had not shown sufficient reasons to overcome the public’s right of access. In other words, although Maxwell sought to dispose of the case quietly and legally via summary judgment—and shield that process from public view—those efforts were rejected, and important portions of the case were ultimately made part of the public record.
to contact me:
bobbycapucci@protonmail.com
source:
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
What's up, everyone, and welcome back to the Epstein Chronicles.
In this episode, we're diving right back into those court
documents and we're going to take a look at the
motion and support for Gallaine Maxwell to get a summary
judgment against Virginia Roberts. So let's dive right in preliminary statement.
(00:20):
Before the court reaches the question whether plaintiff can prove
falsity and actual malice, it should decide three questions of law,
one that narrows considerably the legal issues, and two that
dispose of the case entirely. One, it is undisputed Miss Maxwell,
through her agents, sent to various media representatives and to
(00:40):
no one else the January twenty fifteen statement. It is
undisputed that she had no control over any of the
media that decided to republish excerpts from that statement. On
these facts, under the black Letter of New York law,
she is not responsible for these publications. Plaintiff's contrary argument
relies on foreseeability doctrine that the New York City Court
(01:04):
of Appeals has specifically rejected some rejudgment should enter in
favor of Miss Maxwell as to any republication. Two, under
the New York constitution. Whether a statement is constitutionally non
actionable opinion depends upon, among other things, an examination of
the full context of the communication and consideration of the
(01:26):
setting surrounding it. The January twenty fifteen statement makes no
reference two specific allegations. Explains why the author believes plaintiffs
allegations are obvious lies. Each time the story is retold,
it changes with new salacious details. It is an expression
of a venerable opinion. When a person falsely cries Wolfe previously,
(01:49):
others are free to opine she is telling falsehoods Now,
this is non actionable opinion three. Under New York law,
a statement made pertinent to good faith anticipatedly litigation is
non actionable. The statement was sent exclusively to the media
representatives and contained a clear message the media should not
republish plaintiff's obvious lies, else Miss Maxwell would sue them.
(02:13):
Such a statement is non actionable if the court reaches
the question of falsity and actual malice. The rule fifty
six record establishes plaintiff cannot prove falsity and actual malice
by clear and convincing evidence. The argument one Miss Maxwell
is not liable for republication of the January twenty fifteen statement.
(02:36):
Under Black Letter of New York law, liability for republication
of an allegedly defamatory statement must be based on real
authority to influence the final product. David versus Costa Gavrius,
five eightf. Supp. Ten eighty two, ten ninety six, SDNY,
nineteen eighty four. Where a defendant had no actual part
(02:56):
in composing or publishing, he cannot be held liable. Dighting
Fallwell versus Miller, one forty five f. Four ninety five,
four ninety seven, Second Circuit, nineteen oh six. Accord Jiassi
versus Probes nine thirty eight ne E two D nine seventeen, nine,
twenty one, and y twenty ten. Conclusive evidence of lack
(03:17):
of actual authority is sufficiently dispositive that the trial court
has no option but to dismiss the case. Emphasis applied
quoting Ronaldi Verst. Viking Penguin Incorporated. Four twenty e two D.
Three seventy seven, three eighty two, New York, nineteen eighty one.
It is undisputed that miss Maxwell and their agents had
(03:39):
no ability to control, and did not control, whether or
how the media recipients would use the statement. Documentation five
point forty two seven Exhibit J two and three ID
Example K twenty four. Unsurprisingly, plaintiff has offered no evidence
of such control. For tiori claim that this Court has
(04:01):
no option but to dismiss the case. Internal quotations omitted
to the extent it is founded upon the media's republication
of the statement. A plaintiff's argumental against some rejudgment is
substantially groundless. A legal argument is frivolous if it is
presented contrary to a long line of authorities and the
(04:21):
fundamental principles of the underlying substantative law. Plaintiff Roberts argument
opposes some re judgments as to a republication is frivolous.
The New York Court of Appeals in Jirase followed a
long line of New York cases holding that a defamation
defendant is not liable for republication of his allegedly defamatory
(04:43):
statement unless he had actual authority to control the decision
to republish. Our republication liability standard has been consistent for
more than one hundred years. See Garassi nine thirty eight
two d A nine to twenty one footnote admitted. Indeed,
the Garassi Court observed. The New York Court of Appeals
(05:04):
in Chauflin versus Coffee, a case decided in nineteen hundred,
held it is too well settled to be now questioned
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,
(05:25):
and who thereby make themselves liable to the person injured,
And that such repetition cannot be considered in law as necessary, natural,
and probable consequence of the original slander of the libel
nine thirty eight, two d At nine twenty one, emphasis applied,
quoting Chauflin fifty six and e at five oh four.
(05:47):
The cases in which this Court and its sister courts
in this circuit assidiously have followed this line of New
York cases or legion. The Second Circuit was in the
vanguard in the face of this uninterrupted line of New
York state and federal cases dating back to the nineteenth century,
powerfully establishing a bright line rule regarding republication, liability, and plaintiff.
(06:11):
Roberts manages what amounts to a frivolous murmur of opposition.
She claims there are two standards in New York law,
one older and one more modern. Response at twenty eight.
The older standard, plaintiff says, is represented by a legion
of cases. We have cited the more modern formulation. Where
can it be found? Why in one place the treatsies
(06:33):
on defamation, citing Sack on Defamation at two seven two
at two one thirteen two one fourteen, fourth edition, twenty sixteen.
It surely is frivolous to argue that a treatsise creates
a republication liability standard that is separate from more modern
then and supersedes the New York Court of Appeals twenty
(06:55):
ten decision in Garassei and this Court's twenty twelve decision
in Igazarian. Trying to build on this start, plaintiff argues,
New York appellate courts have repeatedly held that an individual
is liable for the media publishing that individual's defamatory press release,
responds at twenty eight. Even if we accept plaintiff's mischaracterization
(07:18):
of the January twenty fifteen statement as a press release,
her argument still would be meritless to begin with. When
plaintiff says the New York Appellate courts have repeatedly supported
her claimed rule of law she means twice, and an
examination of those two cases reveals she is quite wrong,
and worse, has advanced a seriously misleading argument. Neither case involved,
(07:41):
as here a motion for some rejudgment. In both cases,
the New York Appellate Division affirmed the denial of emotion
to dismiss under the state's equivalent of federal rule of
civil Procedure twelve B six ce Levy Smith, eighteen n
Ys three d four thirty eight, four thirty nine, Second Department,
twenty fifteen. National Puerto Rican Day Parade Incorporated. Versus Costa Pubs.
(08:06):
NPR nine one four Nys two d one twenty one,
twenty two through one twenty three, First Department, twenty ten.
This argument two is frivolous despite plaintiff's baseless claim that
there is an old formulation and a more modern formulation
of republication liability law in New York. Both cases she
(08:28):
cites applied the same old standard used by the New
York Court of Appeals in Garachi, by this court in
the two Igazarian cases, and by us in the Memorandum
of law in support of Miss Maxwell's motion for summary
judgment see Levy eighteen n Ys three d at four
thirty nine, citing Garachi and Shoplin, n PR nine, fourteen
(08:51):
n Ys two d at five ninety four, ninety five,
citing Hoffman, First Landers, five thirty seven n Ys two
d two twenty eight two thirty one, Second Department, nineteen
eighty nine, citing Schoflin. Both the courts and Levy and
NPR applied the Garacchi standard and the twelve six B standards,
e g. Assuming the pleted facts were true, they concluded
(09:15):
it was possible to infer from the complaints allegations that
the defendant caused the republication. Accordingly, they denied the motions
to dismiss See Levy eighteen nys At two d at
four thirty nine, NPR nine fourteen n Ys two d
at one twenty three. It was improper for plaintiff to
(09:36):
cite these cases without disclosing their twelve B six cases,
in which the courts applied the Garacchi republication rule and
inferred facts from the pleted allegations. B New York State
federal courts have rejected liability for republication based on foreseeability.
Plaintiff site section five seventy six of the restatement second
(09:58):
of Torts for the proposition that if republication was foreseeable,
then the defendant in the cause of any special damages
from the republication. This argument is frivolous as an initial matter.
Plaintiff is pleaded no special damages see Document one, Document
twenty three at twenty three, Document thirty seven at seventeen. Regardless,
(10:20):
the New York Court of Appeals in Garachi rejected the
restatements foreseeability doctrine C. Nine thirty eight two d at
nine to twenty one in twenty two, noting that section
five seventy six foreseeability standard is not nearly as broad
as plaintiff suggests, and that we did not endorse such
a broad restatement standard of foreseeability in Caradomin is evident
(10:43):
from our decision in the year's following in Rinaldi. While
trying to distinguish this Court's decision in Davis, plaintiff fels
to disclose that Davis itself decided twenty six years before
Garacci also rejected plaintiffs foreseeability argument Davis. Plaintiffs, like plaintiff
Roberts here also asserted republication liability despite defendant's lack of
(11:06):
participation on the ground he could reasonably have for seen
the republication would occur five eighty ft. Supp At ten
ninety six. This Court, relying on Carradooman, was unpersuaded. The
New York Court of Appeals has not applied the foreseeability
standard suggested by plaintiffs in prior liable cases in which
(11:29):
such a standard would have been relevant, if not controlling ID.
This Court noted the jurisdictions have adopted a foreseeability standard
have refused the whole responsible a defendant with no control
or influence over the entity that actually republished the statement. ID.
Plaintiff's failure to disclose this Court's holdings in Davis is
(11:50):
a notable lapse in candor. All right, folks, that's going
to do it for part one, and in the next
episode we'll keep the discussed bus rolling. All of the
information that goes with this episode can be found in
the description box. What's up, everyone, and welcome back to
the Epstein Chronicles. In this episode, we're diving right back
in to the brief in support of Glenn Maxwell and
(12:12):
her request for a summary judgment see Plaintiff's purported application
of the Drachi rule is misleading and it's wrong. Plaintiff
eventually purports to apply the old standard, that is to say,
the controlling law in the state of New York. She
argues Miss Maxwell authorized the January twenty fifteen statement, paid
(12:33):
money to her publicist to convince media outlets to publish it,
requested its publication, made a deliberate decision to publish her
press release, actively participated in the decision to publish her
press release, was active in influencing the media to publish
the statement, and approved of and push for the publication
(12:53):
of the statement. Response at thirty and thirty one. These
arguments manufactured facts, have no record of support. In applying
the controlling law, Plaintiff willingly makes a mess out of it.
She disingenuously suggests any help Miss Maxwell gave to help
her lawyers prepare the June twenty fifteen statement and her
assigning off on it are the equivalent of requesting, authorizing,
(13:17):
and controlling its republication. That isn't the law. The authority
required for republication liability is the actual authority to decide
upon or implement the republication five eighty f. Supp At
ten ninety five. Emphasis supplied, citing Ronaldi four twenty and
E two d At three eighty two. Judge so far
(13:39):
studied Ronaldi's holding and noted a republication liability must be
based on a decision by the defendant to republish and
must focus on real authority to influence the final product,
not upon evidence of acquiescing or peripheral involvement in the
republication process Ida ten ninety six. Emphasis is applied accordingly.
(14:02):
Judge Sulfer held, when there is conclusive evidence of lack
of actual authority, this is dispositive of republication liability and
the trial court has no option but to dismiss the
case against the defendant. Emphasis applied quoting Ronaldi at four
twenty two d at three eighty two. There is no
evidence miss Maxwell paid money to her publicists to convince
(14:25):
the media to publish her statement. This is why plaintiff
cites no evidence to support that assertion. CE Response thirty.
Mister gals email containing the statement says nothing to convince
the media to publish the statement. CE Document five forty two.
Example f. There is no evidence that says Miss Maxwell
was active in influencing the media to publish it, nor
(14:47):
is there any evidence she pushed or requested its publication.
This is why plaintiff cites no evidence to support these assertions. Indeed,
plaintiff has zero evidence Miss Maxwell or her agents ever
did anything to urge or request any media to publish
the statement. Mister gal presented the January twenty fifteen statement
(15:08):
via email to six to thirty media representatives. It was
not sent to anyone else. In the email, he told
journalists he was presenting a quotable statement on behalf of
Miss Maxwell and no further communications will be provided Documentation
five forty two through five forty six example f It
is undisputed Miss Maxwell and er agents had no control
(15:31):
over the media that republished portions of the statement. Plaintiff
argues a jury should decide whether Miss Maxwell authorized or
intended the statement to be republished or approved of, and
even participated in its republication. Response thirty to thirty one.
All plaintiff wants to get to a jury. The summary
judgment question is whether they deserve to. Plaintiff has offered
(15:54):
no evidence to put before a jury on the dispositive
Jirachi question whether Miss Maxwell affirmatively authorized or requested a
person or entity over whom she has control nine thirty
eight and E two d at nine to twenty one.
The only new argument plaintiff makes in her entreaty to
see a jury is that she should be permitted to
(16:14):
prove Miss Maxwell's complicity. As with her other factually bereft arguments,
the complicity argument awaits plaintiff's introduction of facts to support it.
Having failed to do so, plaintiff cannot avoid some rejudgment.
Plaintiff labor is in vain to turn the Bardon Declaration
into disputed issues of fact. For there to be disputed
(16:36):
factual issues, plaintiff would need to introduce evidence disputing his
sworn statements. She has not done so. In any event,
the Bardon Declaration is all but irrelevant to the central
dispositive republication question, whether Miss Maxwell is liable for the
media's republication of her statements where they did so without
(16:56):
her authority or request, and where she and her agents
had no control over the media. On this question, we
cited to the Bardon Declaration for one evidentiary fact. Messrs
Bardon and Gow had no control over the media see
Documentation five forty two through five forty seven example K
twenty four cited in the Memo of Law fourteen. Plaintiff
(17:19):
has offered no admissible evidence disputing this fact. There is
no issue for trial unless there is sufficient evidence favoring
the non moving party for a jury to return a
verdict for that party. Anderson Versus Liberty Lobby, Incorporated. Four
seventy seven US two forty two, two forty nine, nineteen
eighty six. It is one thing to argue in conclusiony
(17:42):
fashion as plaintiff does, that a jury should decide a
factual question. It's quite another to identify evidence in the
Rule fifty six record that raises a genuine question of
material fact, which plaintiff does not do. Some rejudgment is warranted,
subjecting miss Maxwell to liability for the media's republication of
(18:04):
excerpts that unilaterally selected is particularly unfair. It is undisputed
that no one ever republished in TOTO the January twenty
fifteen statement that various media outlets unilaterally selected portions of
the statement to republish. We set on page fourteen of
our memorandum that the media selective partial republication of the
(18:27):
statement is more problematic yet emphasis altered. That is to say,
as improper as it is, the whole publisher of a
statement liable for republication over which she had no control.
Were worse, is it to make her liable for selective,
partial republication of her statement. We relied on the holding
and ran versus New York Times Company, four thirty Nys
(18:51):
two seventy one, two seventy five, First Department, nineteen eighty
that a publisher cannot be charged with a republisher's editing
and excerpting a statements memo of law at fourteen. Plaintiff
argues that our position is absurd on its face, because
it would mean that the defamer could send to the
media a long attack on a victim with one irrelevant sentence,
(19:13):
and when the media quite predictably cut that sentence, escape
liability response at thirty two. This argument has two erroneous assumptions.
One is that the defamer can escape liability, not true.
An original publisher remains liable for her defamation. We are
concerned here with republication. The second wrong assumption is that
(19:36):
the original publisher must always remain liable for any republication.
Jiachi rejects that view. Under New York law, each person
who repeats the defamatory statement is responsible for the resulting
damages nine thirty eight two D and nine to twenty one.
The effort by plaintiff to distinguish rand is meritless. She
(19:56):
argues the media's republication of the January two tith tenty
fifteen statement actually was not a republication at all, just
an original publication response at thirty two. That argument is
absurd on its face, since there is no dispute. Miss
Maxwell did not control the media's decision to republish the statement.
Plaintiff next argues the media did not edit or take
(20:20):
quotes out of context. Id Plaintiff cannot be more wrong,
As she concedes, all republications of the statement by the
media were selective partial republications of the statement. Any such
selective partial republication, by definition, took those excerpts out of context.
This is so because mister Gal informed the media into
(20:42):
email that he was providing a quotable statement documentation five
forty two through five forty six example f not a
statement from which you, the media, are free to excerpt
as you please. More importantly, as mister Barton explained selectively
excerpting the statement meant substantially altered his message CID Example
(21:03):
K twenty and for example, when he said in the
third paragraph that Plaintiff's claims or obvious lies, it followed
two paragraphs in which he explained why it was obvious
the new claims or lies CID example K nineteen through
twenty two. Excerpting republishing only the obvious lies phrase, as
plaintiff did in her complaint, certainly gives the reader a
(21:25):
different understanding than if the media had republished the entire statement.
As Ran held, a defendant cannot be liable for the
republication of derogatory but constitutionally protected opinion when the foundation
upon which that opinion is based is omitted. The defamatory
remark should be read against the background of its issuance.
(21:46):
Four thirty n y two d at two seventy five.
Plaintiff argues a jury could reasonably conclude that Miss Maxwell's
statement that Miss Roberts claims of child sexual abuse or
obvious lies is not a rhetorical device nor hyperbole, but
a literal and particular affirmation that plaintiff lied. Respond to
(22:06):
thirty three we italicize plaintiff's rhetorical sleight of hand, as
plaintiff knows. Nowhere did the January twenty fifteen statement specify
which of Plaintiff's countless allegations or obvious lies. Indeed, this
is the problem with Plaintiff's case, since the statement specified
no particular allegations as obvious lies. Plaintiff believes she is
(22:29):
entitled to prove the truth of every allegation she has
ever made about her alleged experience as a sex slave.
What mister Barton's declaration makes clear is he deliberately made
no reference to any specific allegation by the plaintiff. He
had a bigger target Plaintiff's credibility. He used the statement
to show Plaintiff's behavior is that of a liar i e.
(22:51):
One who increasingly embellishes her story and her allegations become
more and more outlandish, so that by January twenty fifteen,
she was claiming to have sex with a well respected
Harvard law professor, Alan Dershowitz. Contrary to Plaintiff's argument, even
apparent statements of fact may assume the character of statements
of opinion and thus be privileged when made in public debate,
(23:14):
or other circumstances in which an audience may participate or
anticipate the use of epitephs, fiery rhetoric or hyperbole. Stein
Hilbert versus Alphonse five oh one two D five point
fifty five fifty six, New York, nineteen eighty six. That
was the case here. Plaintiff falsely, and as Judge marreheld
(23:35):
unnecessarily a legend lurid detail that miss Maxwell had sexually
abused her. The six to thirty journalists would have anticipated
a fiery denial of the allegations, regardless, The statement overall
was constitutionally protected opinion grounded on facts disclosed to the journalists.
Plaintiff increasingly outlandish and inconsistent stories her newly embellished allegations,
(23:58):
and are increasingly lurid and salacious enhancements of her earlier allegations.
All right, folks, we're gonna wrap up. We'll part two here,
and then the next episode we'll pick up where we
left off. All of the information that goes with this
episode can be found in the description box.
What's up, everyone, and welcome back to the Epstein Chronicles.
In this episode, we're diving right back into those court
documents and we're going to take a look at the
motion and support for Gallaine Maxwell to get a summary
judgment against Virginia Roberts. So let's dive right in preliminary statement.
(00:20):
Before the court reaches the question whether plaintiff can prove
falsity and actual malice, it should decide three questions of law,
one that narrows considerably the legal issues, and two that
dispose of the case entirely. One, it is undisputed Miss Maxwell,
through her agents, sent to various media representatives and to
(00:40):
no one else the January twenty fifteen statement. It is
undisputed that she had no control over any of the
media that decided to republish excerpts from that statement. On
these facts, under the black Letter of New York law,
she is not responsible for these publications. Plaintiff's contrary argument
relies on foreseeability doctrine that the New York City Court
(01:04):
of Appeals has specifically rejected some rejudgment should enter in
favor of Miss Maxwell as to any republication. Two, under
the New York constitution. Whether a statement is constitutionally non
actionable opinion depends upon, among other things, an examination of
the full context of the communication and consideration of the
(01:26):
setting surrounding it. The January twenty fifteen statement makes no
reference two specific allegations. Explains why the author believes plaintiffs
allegations are obvious lies. Each time the story is retold,
it changes with new salacious details. It is an expression
of a venerable opinion. When a person falsely cries Wolfe previously,
(01:49):
others are free to opine she is telling falsehoods Now,
this is non actionable opinion three. Under New York law,
a statement made pertinent to good faith anticipatedly litigation is
non actionable. The statement was sent exclusively to the media
representatives and contained a clear message the media should not
republish plaintiff's obvious lies, else Miss Maxwell would sue them.
(02:13):
Such a statement is non actionable if the court reaches
the question of falsity and actual malice. The rule fifty
six record establishes plaintiff cannot prove falsity and actual malice
by clear and convincing evidence. The argument one Miss Maxwell
is not liable for republication of the January twenty fifteen statement.
(02:36):
Under Black Letter of New York law, liability for republication
of an allegedly defamatory statement must be based on real
authority to influence the final product. David versus Costa Gavrius,
five eightf. Supp. Ten eighty two, ten ninety six, SDNY,
nineteen eighty four. Where a defendant had no actual part
(02:56):
in composing or publishing, he cannot be held liable. Dighting
Fallwell versus Miller, one forty five f. Four ninety five,
four ninety seven, Second Circuit, nineteen oh six. Accord Jiassi
versus Probes nine thirty eight ne E two D nine seventeen, nine,
twenty one, and y twenty ten. Conclusive evidence of lack
(03:17):
of actual authority is sufficiently dispositive that the trial court
has no option but to dismiss the case. Emphasis applied
quoting Ronaldi Verst. Viking Penguin Incorporated. Four twenty e two D.
Three seventy seven, three eighty two, New York, nineteen eighty one.
It is undisputed that miss Maxwell and their agents had
(03:39):
no ability to control, and did not control, whether or
how the media recipients would use the statement. Documentation five
point forty two seven Exhibit J two and three ID
Example K twenty four. Unsurprisingly, plaintiff has offered no evidence
of such control. For tiori claim that this Court has
(04:01):
no option but to dismiss the case. Internal quotations omitted
to the extent it is founded upon the media's republication
of the statement. A plaintiff's argumental against some rejudgment is
substantially groundless. A legal argument is frivolous if it is
presented contrary to a long line of authorities and the
(04:21):
fundamental principles of the underlying substantative law. Plaintiff Roberts argument
opposes some re judgments as to a republication is frivolous.
The New York Court of Appeals in Jirase followed a
long line of New York cases holding that a defamation
defendant is not liable for republication of his allegedly defamatory
(04:43):
statement unless he had actual authority to control the decision
to republish. Our republication liability standard has been consistent for
more than one hundred years. See Garassi nine thirty eight
two d A nine to twenty one footnote admitted. Indeed,
the Garassi Court observed. The New York Court of Appeals
(05:04):
in Chauflin versus Coffee, a case decided in nineteen hundred,
held it is too well settled to be now questioned
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,
(05:25):
and who thereby make themselves liable to the person injured,
And that such repetition cannot be considered in law as necessary, natural,
and probable consequence of the original slander of the libel
nine thirty eight, two d At nine twenty one, emphasis applied,
quoting Chauflin fifty six and e at five oh four.
(05:47):
The cases in which this Court and its sister courts
in this circuit assidiously have followed this line of New
York cases or legion. The Second Circuit was in the
vanguard in the face of this uninterrupted line of New
York state and federal cases dating back to the nineteenth century,
powerfully establishing a bright line rule regarding republication, liability, and plaintiff.
(06:11):
Roberts manages what amounts to a frivolous murmur of opposition.
She claims there are two standards in New York law,
one older and one more modern. Response at twenty eight.
The older standard, plaintiff says, is represented by a legion
of cases. We have cited the more modern formulation. Where
can it be found? Why in one place the treatsies
(06:33):
on defamation, citing Sack on Defamation at two seven two
at two one thirteen two one fourteen, fourth edition, twenty sixteen.
It surely is frivolous to argue that a treatsise creates
a republication liability standard that is separate from more modern
then and supersedes the New York Court of Appeals twenty
(06:55):
ten decision in Garassei and this Court's twenty twelve decision
in Igazarian. Trying to build on this start, plaintiff argues,
New York appellate courts have repeatedly held that an individual
is liable for the media publishing that individual's defamatory press release,
responds at twenty eight. Even if we accept plaintiff's mischaracterization
(07:18):
of the January twenty fifteen statement as a press release,
her argument still would be meritless to begin with. When
plaintiff says the New York Appellate courts have repeatedly supported
her claimed rule of law she means twice, and an
examination of those two cases reveals she is quite wrong,
and worse, has advanced a seriously misleading argument. Neither case involved,
(07:41):
as here a motion for some rejudgment. In both cases,
the New York Appellate Division affirmed the denial of emotion
to dismiss under the state's equivalent of federal rule of
civil Procedure twelve B six ce Levy Smith, eighteen n
Ys three d four thirty eight, four thirty nine, Second Department,
twenty fifteen. National Puerto Rican Day Parade Incorporated. Versus Costa Pubs.
(08:06):
NPR nine one four Nys two d one twenty one,
twenty two through one twenty three, First Department, twenty ten.
This argument two is frivolous despite plaintiff's baseless claim that
there is an old formulation and a more modern formulation
of republication liability law in New York. Both cases she
(08:28):
cites applied the same old standard used by the New
York Court of Appeals in Garachi, by this court in
the two Igazarian cases, and by us in the Memorandum
of law in support of Miss Maxwell's motion for summary
judgment see Levy eighteen n Ys three d at four
thirty nine, citing Garachi and Shoplin, n PR nine, fourteen
(08:51):
n Ys two d at five ninety four, ninety five,
citing Hoffman, First Landers, five thirty seven n Ys two
d two twenty eight two thirty one, Second Department, nineteen
eighty nine, citing Schoflin. Both the courts and Levy and
NPR applied the Garacchi standard and the twelve six B standards,
e g. Assuming the pleted facts were true, they concluded
(09:15):
it was possible to infer from the complaints allegations that
the defendant caused the republication. Accordingly, they denied the motions
to dismiss See Levy eighteen nys At two d at
four thirty nine, NPR nine fourteen n Ys two d
at one twenty three. It was improper for plaintiff to
(09:36):
cite these cases without disclosing their twelve B six cases,
in which the courts applied the Garacchi republication rule and
inferred facts from the pleted allegations. B New York State
federal courts have rejected liability for republication based on foreseeability.
Plaintiff site section five seventy six of the restatement second
(09:58):
of Torts for the proposition that if republication was foreseeable,
then the defendant in the cause of any special damages
from the republication. This argument is frivolous as an initial matter.
Plaintiff is pleaded no special damages see Document one, Document
twenty three at twenty three, Document thirty seven at seventeen. Regardless,
(10:20):
the New York Court of Appeals in Garachi rejected the
restatements foreseeability doctrine C. Nine thirty eight two d at
nine to twenty one in twenty two, noting that section
five seventy six foreseeability standard is not nearly as broad
as plaintiff suggests, and that we did not endorse such
a broad restatement standard of foreseeability in Caradomin is evident
(10:43):
from our decision in the year's following in Rinaldi. While
trying to distinguish this Court's decision in Davis, plaintiff fels
to disclose that Davis itself decided twenty six years before
Garacci also rejected plaintiffs foreseeability argument Davis. Plaintiffs, like plaintiff
Roberts here also asserted republication liability despite defendant's lack of
(11:06):
participation on the ground he could reasonably have for seen
the republication would occur five eighty ft. Supp At ten
ninety six. This Court, relying on Carradooman, was unpersuaded. The
New York Court of Appeals has not applied the foreseeability
standard suggested by plaintiffs in prior liable cases in which
(11:29):
such a standard would have been relevant, if not controlling ID.
This Court noted the jurisdictions have adopted a foreseeability standard
have refused the whole responsible a defendant with no control
or influence over the entity that actually republished the statement. ID.
Plaintiff's failure to disclose this Court's holdings in Davis is
(11:50):
a notable lapse in candor. All right, folks, that's going
to do it for part one, and in the next
episode we'll keep the discussed bus rolling. All of the
information that goes with this episode can be found in
the description box. What's up, everyone, and welcome back to
the Epstein Chronicles. In this episode, we're diving right back
in to the brief in support of Glenn Maxwell and
(12:12):
her request for a summary judgment see Plaintiff's purported application
of the Drachi rule is misleading and it's wrong. Plaintiff
eventually purports to apply the old standard, that is to say,
the controlling law in the state of New York. She
argues Miss Maxwell authorized the January twenty fifteen statement, paid
(12:33):
money to her publicist to convince media outlets to publish it,
requested its publication, made a deliberate decision to publish her
press release, actively participated in the decision to publish her
press release, was active in influencing the media to publish
the statement, and approved of and push for the publication
(12:53):
of the statement. Response at thirty and thirty one. These
arguments manufactured facts, have no record of support. In applying
the controlling law, Plaintiff willingly makes a mess out of it.
She disingenuously suggests any help Miss Maxwell gave to help
her lawyers prepare the June twenty fifteen statement and her
assigning off on it are the equivalent of requesting, authorizing,
(13:17):
and controlling its republication. That isn't the law. The authority
required for republication liability is the actual authority to decide
upon or implement the republication five eighty f. Supp At
ten ninety five. Emphasis supplied, citing Ronaldi four twenty and
E two d At three eighty two. Judge so far
(13:39):
studied Ronaldi's holding and noted a republication liability must be
based on a decision by the defendant to republish and
must focus on real authority to influence the final product,
not upon evidence of acquiescing or peripheral involvement in the
republication process Ida ten ninety six. Emphasis is applied accordingly.
(14:02):
Judge Sulfer held, when there is conclusive evidence of lack
of actual authority, this is dispositive of republication liability and
the trial court has no option but to dismiss the
case against the defendant. Emphasis applied quoting Ronaldi at four
twenty two d at three eighty two. There is no
evidence miss Maxwell paid money to her publicists to convince
(14:25):
the media to publish her statement. This is why plaintiff
cites no evidence to support that assertion. CE Response thirty.
Mister gals email containing the statement says nothing to convince
the media to publish the statement. CE Document five forty two.
Example f. There is no evidence that says Miss Maxwell
was active in influencing the media to publish it, nor
(14:47):
is there any evidence she pushed or requested its publication.
This is why plaintiff cites no evidence to support these assertions. Indeed,
plaintiff has zero evidence Miss Maxwell or her agents ever
did anything to urge or request any media to publish
the statement. Mister gal presented the January twenty fifteen statement
(15:08):
via email to six to thirty media representatives. It was
not sent to anyone else. In the email, he told
journalists he was presenting a quotable statement on behalf of
Miss Maxwell and no further communications will be provided Documentation
five forty two through five forty six example f It
is undisputed Miss Maxwell and er agents had no control
(15:31):
over the media that republished portions of the statement. Plaintiff
argues a jury should decide whether Miss Maxwell authorized or
intended the statement to be republished or approved of, and
even participated in its republication. Response thirty to thirty one.
All plaintiff wants to get to a jury. The summary
judgment question is whether they deserve to. Plaintiff has offered
(15:54):
no evidence to put before a jury on the dispositive
Jirachi question whether Miss Maxwell affirmatively authorized or requested a
person or entity over whom she has control nine thirty
eight and E two d at nine to twenty one.
The only new argument plaintiff makes in her entreaty to
see a jury is that she should be permitted to
(16:14):
prove Miss Maxwell's complicity. As with her other factually bereft arguments,
the complicity argument awaits plaintiff's introduction of facts to support it.
Having failed to do so, plaintiff cannot avoid some rejudgment.
Plaintiff labor is in vain to turn the Bardon Declaration
into disputed issues of fact. For there to be disputed
(16:36):
factual issues, plaintiff would need to introduce evidence disputing his
sworn statements. She has not done so. In any event,
the Bardon Declaration is all but irrelevant to the central
dispositive republication question, whether Miss Maxwell is liable for the
media's republication of her statements where they did so without
(16:56):
her authority or request, and where she and her agents
had no control over the media. On this question, we
cited to the Bardon Declaration for one evidentiary fact. Messrs
Bardon and Gow had no control over the media see
Documentation five forty two through five forty seven example K
twenty four cited in the Memo of Law fourteen. Plaintiff
(17:19):
has offered no admissible evidence disputing this fact. There is
no issue for trial unless there is sufficient evidence favoring
the non moving party for a jury to return a
verdict for that party. Anderson Versus Liberty Lobby, Incorporated. Four
seventy seven US two forty two, two forty nine, nineteen
eighty six. It is one thing to argue in conclusiony
(17:42):
fashion as plaintiff does, that a jury should decide a
factual question. It's quite another to identify evidence in the
Rule fifty six record that raises a genuine question of
material fact, which plaintiff does not do. Some rejudgment is warranted,
subjecting miss Maxwell to liability for the media's republication of
(18:04):
excerpts that unilaterally selected is particularly unfair. It is undisputed
that no one ever republished in TOTO the January twenty
fifteen statement that various media outlets unilaterally selected portions of
the statement to republish. We set on page fourteen of
our memorandum that the media selective partial republication of the
(18:27):
statement is more problematic yet emphasis altered. That is to say,
as improper as it is, the whole publisher of a
statement liable for republication over which she had no control.
Were worse, is it to make her liable for selective,
partial republication of her statement. We relied on the holding
and ran versus New York Times Company, four thirty Nys
(18:51):
two seventy one, two seventy five, First Department, nineteen eighty
that a publisher cannot be charged with a republisher's editing
and excerpting a statements memo of law at fourteen. Plaintiff
argues that our position is absurd on its face, because
it would mean that the defamer could send to the
media a long attack on a victim with one irrelevant sentence,
(19:13):
and when the media quite predictably cut that sentence, escape
liability response at thirty two. This argument has two erroneous assumptions.
One is that the defamer can escape liability, not true.
An original publisher remains liable for her defamation. We are
concerned here with republication. The second wrong assumption is that
(19:36):
the original publisher must always remain liable for any republication.
Jiachi rejects that view. Under New York law, each person
who repeats the defamatory statement is responsible for the resulting
damages nine thirty eight two D and nine to twenty one.
The effort by plaintiff to distinguish rand is meritless. She
(19:56):
argues the media's republication of the January two tith tenty
fifteen statement actually was not a republication at all, just
an original publication response at thirty two. That argument is
absurd on its face, since there is no dispute. Miss
Maxwell did not control the media's decision to republish the statement.
Plaintiff next argues the media did not edit or take
(20:20):
quotes out of context. Id Plaintiff cannot be more wrong,
As she concedes, all republications of the statement by the
media were selective partial republications of the statement. Any such
selective partial republication, by definition, took those excerpts out of context.
This is so because mister Gal informed the media into
(20:42):
email that he was providing a quotable statement documentation five
forty two through five forty six example f not a
statement from which you, the media, are free to excerpt
as you please. More importantly, as mister Barton explained selectively
excerpting the statement meant substantially altered his message CID Example
(21:03):
K twenty and for example, when he said in the
third paragraph that Plaintiff's claims or obvious lies, it followed
two paragraphs in which he explained why it was obvious
the new claims or lies CID example K nineteen through
twenty two. Excerpting republishing only the obvious lies phrase, as
plaintiff did in her complaint, certainly gives the reader a
(21:25):
different understanding than if the media had republished the entire statement.
As Ran held, a defendant cannot be liable for the
republication of derogatory but constitutionally protected opinion when the foundation
upon which that opinion is based is omitted. The defamatory
remark should be read against the background of its issuance.
(21:46):
Four thirty n y two d at two seventy five.
Plaintiff argues a jury could reasonably conclude that Miss Maxwell's
statement that Miss Roberts claims of child sexual abuse or
obvious lies is not a rhetorical device nor hyperbole, but
a literal and particular affirmation that plaintiff lied. Respond to
(22:06):
thirty three we italicize plaintiff's rhetorical sleight of hand, as
plaintiff knows. Nowhere did the January twenty fifteen statement specify
which of Plaintiff's countless allegations or obvious lies. Indeed, this
is the problem with Plaintiff's case, since the statement specified
no particular allegations as obvious lies. Plaintiff believes she is
(22:29):
entitled to prove the truth of every allegation she has
ever made about her alleged experience as a sex slave.
What mister Barton's declaration makes clear is he deliberately made
no reference to any specific allegation by the plaintiff. He
had a bigger target Plaintiff's credibility. He used the statement
to show Plaintiff's behavior is that of a liar i e.
(22:51):
One who increasingly embellishes her story and her allegations become
more and more outlandish, so that by January twenty fifteen,
she was claiming to have sex with a well respected
Harvard law professor, Alan Dershowitz. Contrary to Plaintiff's argument, even
apparent statements of fact may assume the character of statements
of opinion and thus be privileged when made in public debate,
(23:14):
or other circumstances in which an audience may participate or
anticipate the use of epitephs, fiery rhetoric or hyperbole. Stein
Hilbert versus Alphonse five oh one two D five point
fifty five fifty six, New York, nineteen eighty six. That
was the case here. Plaintiff falsely, and as Judge marreheld
(23:35):
unnecessarily a legend lurid detail that miss Maxwell had sexually
abused her. The six to thirty journalists would have anticipated
a fiery denial of the allegations, regardless, The statement overall
was constitutionally protected opinion grounded on facts disclosed to the journalists.
Plaintiff increasingly outlandish and inconsistent stories her newly embellished allegations,
(23:58):
and are increasingly lurid and salacious enhancements of her earlier allegations.
All right, folks, we're gonna wrap up. We'll part two here,
and then the next episode we'll pick up where we
left off. All of the information that goes with this
episode can be found in the description box.
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