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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 21 of 40 specific and protective standard. See In re Bank of New York Mellon, 42 Misc. 3d 171, 177, 977 N.Y.S.2d 560, 565 (Sup. Ct. 2013) (‘at issue’ waiver occurs ‘when the party has asserted a claim or defense that he intends to prove by use of the privileged materials.’ An example of an affirmative act that does constitute ‘at issue’ waiver of privilege is a party’s ‘assert[ing] as an affirmative defense [its] reliance upon the advice of counsel.””).'° DISCUSSION L MS. GIUFFRE DID NOT WAIVE HER ATTORNEY-CLIENT PRIVILEGE WHEN EDWARDS AND CASSELL FILED AND PURSUED THEIR OWN DEFAMATION ACTION AGAINST ALAN DERSHOWITZ. Defendant’s lead argument is that Cassell and Edwards waived Ms. Giuffre’s attorney- client privilege when they filed and pursued a defamation action against Alan Dershowitz. See Mot. to Compel at 10. This claim is meritless for numerous reasons, including the fact (not disclosed by Defendant) that this very argument has been fully litigated before the Florida court handling that defamation action, which specifically rejected any finding of waiver. A. The Florida Court Presiding over the Defamation Action Has Already Rejected the Same Waiver Claim that Defendant is Advancing Here. The claim that Cassell and Edwards somehow waived Ms. Giuffre’s attorney-client by pursuing their own, personal defamation action against Dershowitz has already been the subject of extensive briefing — and, ultimately, a Florida court ruling. Defendant has scoured the docket '° New York and federal authorities also hold that when attorneys are not acting on the client’s behalf, they cannot waive their client’s privilege. N.Y. C.P.L.R. § 4503(a); Dillenbeck v. Hess, 73 N.Y.2d 278, 290, 536 N.E.2d 1126, 1134 (N.Y. 1989) (“[T]he sine qua non of any evidentiary privilege is that it is personal to, and can only be waived by, the privilege holder.”). See also In re von Bulow, 828 F.2d 94, 100-01 (2d Cir. 1987) (“Of course, the privilege belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his client's consent.”); In re Bank of New York Mellon Corp. Forex Transactions Litig., 66 F. Supp. 3d 406, 410 (S.D.N.Y. 2014) (same); Ferreira v. Capitol Specialty Ins. Corp., 31 Misc. 3d 1209(A), 929 N.Y.S.2d 199 (N.Y. Sup. Ct. 2011) (“CPLR 4503 makes clear that an attorney cannot waive the attorney-client privilege rather waiver is only effective when done by the beneficiary of the privilege or their personal representative.”). 14