DocumentCloud_Epstein_Docs_p00807.png

Case 18-2868, Document 279, 08/09/2019, 2628231, Page25 of 37 Ill. The pre-litigation privilege bars this action. A. The privilege applies to the January 2015 statement. Statements pertinent to a good faith anticipated litigation made by attorneys (or their agents under their direction'®) before the commencement of litigation are privileged and “no cause of action for defamation can be based on those statements,” Front, Inc. v. Khalil, 28 N.E.3d 15, 16 (N.Y. 2015). The facts that must be established, therefore, are (a) a statement, (b) that is pertinent to a good faith anticipated litigation, and (c) by attorneys or their agents under their direction. We did this. See Memo. of Law 6-8, 33-38; Doc.542-7, Ex.K J 8-30. For example, Mr. Barden (a) drafted the vast majority of the January 2015 statement and approved and adopted all of it, (b) directed Mr. Gow to send it to the media representatives who had requested Ms. Maxwell’s reply to plaintiff’s joint-motion allegations, (c) in the statement threatened legal action again these media representatives, and (d) at the time of the statement “was contemplating litigation against the press-recipients.” /d., Ex.K {J 10, 16-17, 28, 30. Plaintiff argues without citation to authority: Ms. Maxwell herself did not testify she intended to sue; she hasn’t offered any witnesses to testify she intended to bring a lawsuit; she didn’t in fact sue; and—this one is a non-sequitur—the statement was an “attempt[] to continue to conceal her criminal acts.” Resp. 41-42. These arguments fail. The privilege exists without regard to whether Ms. Maxwell testifies she “intended” to sue, whether she has “witnesses” to say she intended to sue, or whether she “in fact” sued. It refers to “anticipated” litigation, not “guaranteed” litigation. Indeed, the point of the pre-litigation privilege is to promote communications that avoid litigation. See Khalil, 28 N.E.3d at 19 (“When litigation is '6See Chambers v. Wells Fargo Bank, N.A., No. CV 15-6976 (JBS/JS), 2016 WL 3533998, at *8 (D.N.J. June 28, 2016); see generally Hawkins v. Harris, 661 A.2d 284, 289-91 (N.J. 1995). 20