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20 Za 22 23 24 25 Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 27 of 64 26 H2G8GIUC the privilege is qualified by whether or not the statement is pertinent to good faith anticipated litigation. Regardless of which way we want to look at this privilege, as articulated in the Khalil case, Judge, it applies here. The elements that Khalil says we must establish in order to prevail on summary judgment on this privilege, Judge, is it has to be a statement by an attorney or an agent under his direction. We have undisputed testimony, paragraphs 7 to 20 of Mr. Barton's declaration, saying that: I'm the one who engaged Mr. Gow. I am the one who directed Mr. Gow. I am the one who drafted the vast majority of the statement. As to the possibility that other parts were drafted by someone else, I adopted them as my own before I directed Mr. Gow to send out the statement. We have satisfied that. The second element is that it had to be pertinent to good faith anticipated litigation. Well, the test on pertinence, I don't believe that the plaintiff is contesting this but I will just mention it quickly, which is that in the Flomenhaft case, the appellate court said that the test on pertinence is "extremely liberal." And for a statement to be actionable it must be "outrageously out of context." Well, there is good reason why the plaintiff would not dispute this, Judge. The January 2015 statement was certainly not outrageously out of context. It was fully within context. Be careful if you choose to republish the plaintiff's salacious SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300