DocumentCloud_Epstein_Docs_p00799.png

Case 18-2868, Document 279, 08/09/2019, 2628231, Page17 of 37 She objects he is “non-deposed.” But Mr. Barden was the third-listed potential witness in our Rule 26(a)(1)(A) disclosure, served on plaintiff a year ago; the disclosure said he “thas knowledge concerning press statements by . .. Defendant in 2011-2015 at issue in this matter.”’ Plaintiff was free to depose him; that she chose not to was her own tactical decision. Finally, plaintiff argues “there are factual disputes” regarding the declaration. But plaintiff identified no such factual disputes relating to the declaration. A party opposing summary judgment cannot create a dispute by arguing, which is all plaintiff does. See Resp. 35-38. F. Plaintiff effectively has confessed Arguments I.B. and I.C. of the Memorandum. Argument I.B. of the Memorandum contends the First Amendment bars liability for republication by media organizations of the January 2015 statement. See Memo. of Law 16-17. Argument IC. contends that under Geraci plaintiff is barred from introducing into evidence any of the media organizations’ republication of the January 2015 statement. See id. at 17-18. Plaintiff offers no resistance to these arguments. We respectfully request that the Court consider these arguments confessed. See, e.g., Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 645- 46 (S.D.N.Y. 2015) (citing cases). Il. The January 2015 statement is constitutionally protected opinion. In deciding whether a statement is opinion the New York Constitution requires application of “the widely used four-part Ollman'"! formula,” Immuno AG v. Moor-Jankowski, 567 N.E.2d 1270, 1274 (N.Y. 1991). See id. at 1274, 1277-78, 1280-82 (noting Steinhilber’s adoption of formula). We addressed each of the four Ollman factors. The plaintiff avoids this analysis, choosing merely to block-quote large portions of this Court’s Rule 12(b)(6) order. That Menninger Decl. EXHIBIT NN, at 2. 8 Oliman v. Evans, 750 F.2d 970 (D.C. Cir. 1984). 12