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20 Za 22 23 24 25 Case 1:15-cv-07433-LAP Document 1332-10 Filed 01/08/24 Page 62 of 64 61 H2G8GIUC Puerto Rican case, two New York intermediate appellate court decisions. Once again, the plaintiff fails to acknowledge that those, like this Court's opinion back in October, are 12(b) (6) cases. They are not summary judgment cases, not relevant to this proceeding, Judge. Those are cases where, actually, the courts made inferences of control and authority based on the pleaded facts. Of course, the Court isn't able to do that ina Rule 56 proceeding. On the pre-litigation privilege, Judge, the statement made by Ms. McCawley is that Ms. Maxwell sends the statement. She is the one who drafts the statement. She is the one who prepares the statement. She points to a, quote unquote, smoking gun. What is the smoking gun Ms. McCawley is referring to? This e-mail that they spent upwards of $100,000 to get. Well, Judge, the smoking gun turns out to be nothing but a peashooter. This smoking gun is an e-mail from Ms. Maxwell to Mr. Gow saying this is the statement. That's it. It is the actual transmission. It was the actual approval by Ms. Maxwell of the statement that Mr. Gow ultimately sends to these 6 to 30 newspaper reporters. Well, since Ms. McCawley wants to call this a conflict of facts and wants a jury, then it's her burden to show that there is a conflict between the smoking gun and Mr. Barton's declaration. Well, where is the conflict, Judge? Ms. Maxwell, in sending out that smoking gun, didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300