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Case 18-2868, Document 276, 08/09/2019, 2628224, Page41 of 77 communications “between litigating parties or their attorneys.” Klein v. McGauley, 29. A.D.2d 418, 420 (N.Y. App. Div. 1968), cited with approval in Petrus v. Smith, 91 A.D.2d 1190, 1191 (N.Y. App. App. Div. 1983). It covers “cease and desist letters.” Khalil, 28 N.E.3d at 19. And it covers “all pertinent communications among the parties, counsel, witnesses and the court,” regardless “[w]hether a statement was made in or out of court, was on or off the record, or was made orally or in writing.” Frechtman v. Gutterrnan, 979 N.Y.S. 2d 58 (App. Div. 2014) (quoting Sexter v. Warmflash, P.C. v. Margrabe, 828 N.Y.S. 2d 315 (App. Div. 2007)). When the pre-litigation privilege is invoked in connection with an allegedly defamatory statement made during pending or contemplated litigation, “any doubts are to be resolved in favor of pertinence.” Flomenhaft, 8 N.Y.S.3d at 164. “[T]he test to determine whether a statement is pertinent to litigation is ‘“extremely liberal,”’ such that the offending statement, to be actionable, must have been ‘outrageously out of context.” Id. at 164-65 (emphasis supplied; quoting Black v. Green Harbour Homeowners’ Ass’n, 798 N.Y.S.2d 753 (App. Div. 2005), and Martirano v. Frost, 255 N.E.2d 693 (1969)); Kirk, 532 F. Supp. 2d at 593. In denying Ms. Maxwell’s motion to dismiss the Complaint based on the pre-litigation privilege, this Court limited its analysis of the privilege to whether under the Rule 12(b)(6) standard plaintiff had sufficiently pleaded that the January 2 and 4 statements were made with actual malice. Doc.37 at 18-19. The Court’s Rule 12(b)(6) analysis does not bear on the question presented here, for two reasons. Under the “substantive law””*® actual malice is not relevant to the pre-litigation defense. The New York Court of Appeals in Khalil held that to prevail on the pre-litigation privilege the defendant need only establish one element: the allegedly defamatory statement at issue was °8 ¢nderson, 477 US. at 248. 34