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Case 18-2868, Document 280, 08/09/2019, 2628232, Page43 of 74 “contemplations” 25 other times. All the while Defendant has claimed a privilege as to her communications with Barden. Defendant attempts to convince the Court that she only granted Gow permission to publish the defamatory statement as part of “Mr. Barden’s deliberated and carefully crafted” (MSJ at 16) legal strategy and advice. Yet, she still refused to turn over her communications with Barden under the auspices of attorney-client privilege.*” Such gamesmanship should not be permitted. If the Court were to consider the Barden Declaration (which it shouldn’t), it would be ruling on a less than complete record because, based on this Declaration, it is necessary that Defendant disclose all communications with him and possibly others. Ms. Giuffre doesn’t have those communications, the court doesn’t have those communications; therefore, Defendant is asking for summary judgment on an incomplete record. The Court should also not consider the Barden Declaration because it will be inadmissible as unduly prejudicial. It is a self-serving declaration by a non-deposed witness made without turning over the documents that are relevant to the declaration. See, e.g., Rubens v. Mason, 387 F.3d 183, 185 (2d Cir. 2004) (“We find that the District Court predicated its grant of summary judgment as to liability on an affidavit from the arbitrator who presided over the underlying arbitration, the probative value of which was substantially outweighed by the danger of unfair prejudice. The affidavit, therefore should not have been admitted. We therefore vacate the grant of summary judgment to the defendants on liability and remand to the District Court.”). b. Defendant’s summary judgment argument requires factual findings regarding Barden’s intent, thereby precluding summary judgment. Even were the Court to consider this Declaration and representations therein — which it should not — the declaration itself demonstrates that the Court would have to make factual “ MSJ at 27. ® See McCawley Dec. at Exhibit 22, Defendant’s Privilege Log. 35