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20 Za 22 23 24 25 Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 28 of 64 27 H2G8GIUC allegations because we may end up suing you for defamation. As a matter of fact, in the last paragraph of the January 2015 statement, the word defamatory is used twice, Judge. The last element is, was there anticipated good faith litigation? Well, that's not a difficult hurdle for us, Judge. Mr. Barton says in his declaration that, as a matter of fact, he did anticipate litigation. He did not have in his eye a particular reporter or medium to bring a lawsuit against. In fact, that was the whole point of the January 2015 statement, was to dissuade the media from republishing plaintiff's false statements. And that's why he made the argument that he did: Do not trust this person, this person tells falsehoods. He could easily see, and he did see, that if the media chose to republish the plaintiff's false allegations, it would be "defamatory," as he says in the fourth paragraph of the January 2015 statement, and he would be entitled to sue. So that certainly is good faith anticipated litigation. Judge, once we have satisfied those elements, this privilege kicks in and that statement, the January 2015 statement, all of it, becomes non-actionable under the New York Constitution. It seems to me that the main point of the plaintiff's in opposition to the pre-litigation privilege is this idea that malice applies. Well, Judge, that was addressed in the Khalil case. There is no malice question in the application of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300