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Case 18-2868, Document 279, 08/09/2019, 2628231, Page26 of 37 anticipated, attorneys and parties should be free to communicate in order to reduce or avoid the need to actually commence litigation.”). It applies when there is a good faith basis to anticipate litigation. Mr. Barden, Ms. Maxwell’s lawyer who drafted and caused the statement to be sent out, actually was anticipating litigation. Doc.542-7, Ex.K { 28. The argument that the statement was an attempt to “conceal” Ms. Maxwell’s “criminal acts” is fatuous. It would be hard to post facto “conceal” alleged criminal acts that plaintiff luridly and salaciously described in an earlier public filing, i.e., in the CVRA case, in which the United States government was the defendant. Citing no record evidence, plaintiff argues, “The record evidence shows [Mr. Barden] did not make the [January 2015] statement.” Resp. 42. That argument is easily disposed of by Mr. Barden’s uncontested testimony. See Doc.542-7, Ex.K {J 10-13, 15-17, 20, 26-28, 30. B. Malice is irrelevant to the pre-litigation privilege. Citing the New York Court of Appeals’ decision in Khalil, we pointed out that malice is not relevant to the pre-litigation privilege. Memo. of Law 34-35. To prevail on the pre-litigation privilege the defendant need only establish one element: the allegedly defamatory statement at issue was “pertinent to a good faith anticipated litigation.’” Id. (quoting Khalil, 28 N.E.3d at 16). Plaintiff disputes this and, without discussing Khalil or citing authorities, simply argues the pre-litigation privilege is “foreclosed . . . because [Ms. Maxwell] acted with malice.” Resp. 43. As suggested by her inability to find any law to support her, plaintiff is wrong. Under general New York defamation law, “[t]he shield provided by a qualified privilege may be dissolved” if plaintiff in rebuttal can show that the defendant “spoke with ‘malice.’” Liberman v. Gelstein, 605 N.E.2d 344, 349 (N.Y. 1992); accord Khalil, 28 N.E.3d at 19. “Malice” means two things: spite or ill will, and knowledge of falsity or reckless disregard of falsity. Liberman, 605 N.E.2d at 349. Plaintiff relies on this general qualified-privilege law. 21