EFTA00100685

Dershowitz, 410 F.Supp.3d 564 (2019) derives from their inherent power to preserve adversary process's integrity. KeyCite Yellow Flag - Negative Treatment Distinguished by Penrose Hill, Limited v. Mabmy, N.D.Cal., August 18, 2020 410 F.Supp.3d 564 United States District Court, S.D. New York. Plaintiff, 121 Attorneys and Legal Servicese-Relation of v. remedy to client's right to counsel of choice Alan DERSHOWITZ, Defendant. In deciding whether to disqualify counsel, courts 19 Civ. 3377 (LAP) must weigh client's right freely to choose his counsel against need to maintain highest 10/16/2019 standards of profession. I Cases that cite this headnote Synopsis Background: Plaintiff brought action alleging that defendant defamed her by making public statements that she was liar, had committed perjury, and was conspiring with law firm to extort him and others by claiming that Attorneys and Legal Services~Standards of she was forced to engage in sexual activity with him. professional conduct in general Defendant moved to dismiss and to disqualify law firm Rules of American Bar Association and state disciplinary bodies merely provide general Holdings: The District Court, Loretta A. Preska, Senior guidance and not every violation of disciplinary District Judge, held that: rule will necessarily lead to disqualification of counsel. III single publication rule did not apply to bar claim on limitations grounds; (2) plaintiffs allegations were sufficient to defeat defendant's claim to qualified self-defense privilege; and 141 Attorneys and Legal Services4H3isfavored or (3)advocate-witness rule required that law firm be severe nature of remedy disqualified from representing plaintiff Attorneys and Legal Servicese-Resolution of doubt Motion to dismiss denied; motion to disqualify granted. Motions to disqualify counsel are viewed with disfavor because of their vulnerability to abuse Procedural Posture(s): Motion to Dismiss for Failure to State a Claim; Motion to Disqualify Counsel. as litigation tactics, but any doubt is to be resolved in favor of disqualification. I Cases that cite this headnote West Headnotes (19) Attorneys and Legal Servicesfi•Inherent power or jurisdiction 151 Attorneys and Legal Serviceso ctual or apparent impropriety Authority of federal courts to disqualify counsel WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00100685 Dershowitz, 410 F.Supp.3d 564 (2019) In evaluating motion to disqualify counsel, court plaintiff's libel claims against defendant based must determine whether attorney's conduct on his alleged affirmative republication of would tend to taint underlying trial. defamatory statements about her to whole new cohort of journalists who posted his statements to new audiences, even if his prior statements I Cases that cite this headnote had been disseminated over internet via prominent news organizations with worldwide reach. r N.Y. CPLR § 215(3). 161 Limitation of ActionsinTorts I Cases that cite this headnote New York's single publication rule is that defamation claim accrues at publication, defined as earliest date on which work was placed on sale or became generally available to public. 1101 Libel and Slander self-defense I/ 1N.Y. CPLR § 215(3). Under New York law, individual is privileged to publish defamatory matter in response to attack upon his or her reputation, and is given more latitude in such situation than if statements were not provoked. 171 Limitation of Actionsi•Torts Under New York law, where defendant takes affirmative step to republish defamatory material, he may not find refuge in single publication rule, pursuant to which statute of 1111 Libel and Slander...Existence and Effect of limitations for defamation claim commences Malice upon original publication. Under New York law, either constitutional malice or common law malice can defeat privilege to publish defamatory matter in response to attack upon reputation. 181 Limitation of Actions#•Torts Under New York law, defamation plaintiff seeking to avoid limitation bar arising from single publication rule must allege separate 1121 Libel and Slander Existence and Effect of aggregate publication from original publication Malice on different occasion that is not merely delayed circulation of original edition. Under New York law, alleged sexual abuse victim's allegations that she was forced to have sex with defendant and that he subsequently made public statements denying her allegations, calling her liar, saying that she committed perjury, and claiming that she conspired with her lawyers to extort him were sufficient to 191 Limitation of ActionsinTorts plead that defendant made statements with malice and knowledge of their falsity, as Under New York law, single publication rule required to defeat defendant's claim to qualified did not apply to bar on limitations grounds self-defense privilege under New York law in WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00100686 Dershowitz, 410 F.Supp.3d 564 (2019) victim's defamation action. occur and that likelihood of prejudice occurring to witness-advocate's client is substantial. N.Y. R. Prof. Conduct 3.7. 1 Cases that cite this headnote 1131 Attorneys and Legal Services•••Witness Under New York law, advocate-witness rule prohibits attorney from representing party where 1171 Attorneys and Legal Service90•Persons attorney will be called as witness. N.Y. R. Prof. affected; imputed disqualification Conduct 3.7. Under New York law, advocate-witness rule required that law firrn be disqualified from I Cases that cite this headnote representing plaintiff in defamation action, where defamation claim was based in part on defendant's statement that plaintiff conspired with firm to extort him, plaintiff's complaint referred to conversations and communications 1141 Attorneys and Legal Services9•Witness between firrn attorney and defendant in which defendant asserted that plaintiff was mistaken in Under New York law, in order to disqualify her claim, defendant had tape-recorded evidence attorney based on advocate-witness rule, party of statements by firm attorney that he claimed must demonstrate that testimony is both supported his version of events, and defendant necessary and substantially likely to be announced his intention to take depositions of prejudicial. N.Y. R. Prof. Conduct 3.7. firm lawyers to help prove truth of his extortion assertion. N.Y. R. Prof. Conduct 3.7. I Cases that cite this headnote 1151 Attorneys and Legal Servicesp-Persons [18] Libel and Slander-9.Truth as justification in affected; imputed disqualification general Under New York law, lawyer may not act as Under New York law, truth is complete defense advocate where another lawyer in lawyer's to defamation claim. firm is likely to be called as witness on significant issue other than on client's behalf, and it is apparent that testimony may be prejudicial to client. N.Y. R. Prof. Conduct 3.7. 1191 Attorneys and Legal Services6.Witness Under New York law, there is no justification for allowing attorney to represent plaintiff 1161 Attorneys and Legal Servicese-Presumptions, during pre-trial aspect of litigation when it is inferences, and burden of proof in general clear that he may be material witness at trial, and it is clear that he could be required to testify. Under New York law, on motion to disqualify N.Y. R. Prof. Conduct 3.7. counsel based on advocate-witness rule, movant bears burden of demonstrating specifically how and as to what issues in case prejudice may WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00100687 Dershowitz, 410 F.Supp.3d 564 (2019) of this litigation. Neither the truth onrerlying claims nor Dershowitz's denial thereo is fore the Court. Attorneys and Law Firms *566 Sigrid S. McCawley, Boies, Schiller & Flexner LLP, Fort Lauderdale, FL, Joshua Schiller, Boies Schiller Flexner LLP, New York, NY, for Plaintiff. a. Motion to Dismiss Arthur Louis Aidala, Law Offices of Aidala & Bertuna, In allegations the Court is required to accept as true at this P.C., Brooklyn, NY, Christian Kiely, Howard M. Cooper, stage, Ashcroft v. lqbal 5566 78, 129 S.Ct. Todd & Weld LLP, Boston, MA, Imran H. Ansari, Aidala 1937, 173 L.Ed.2d 868 (2009), lieges that she Bertuna & Kamins PC, New York, NY, for Defendant. was "forced to engage in sexual acts with Dershowitz in, among other locations, [Jeffrey] Epstein's mansion ...." (Complaint ("Compl."), dated Apr. 16, 2019 [dkt. no. 1], at ¶ 36). Prior to filing the Complaint, she had filed a joinder motion in 2014 in another case describing this alleged sexual activity. (a at ¶ 10). Thereafter in 2015 Dershowitz said on national television that counsel on the joinder motion, Paul Cassell and Bradley OPINION & ORDER Edwards, had engaged in "unethical behavior warranting ent for filing the Joinder Motion." (Id. at ¶ 11). LORETTA A. PRESKA, Senior United States District "s alleges that Dershowitz made this statement about her counsel "wrongfully." (a) Cassell *567 and Edwards Judge sued Dershowitz for defamation, and that case was settled in April 2016. (I at 'II 11-12). ("Plaintiff' or brings this ac ton or e ation against Alan Dershowitz In 2015, Dershowitz made a number of statements in ("Defendant" or "Dershowitz")_has long claimed various media outlets, including The Wall Street Journal, that she was forced to engage in sexual activity with The New York Times, the BBC, CNN, the Today Show, Dershowitz. In response, Dershowitz has repeatedly and Reuters. (Declaration Of Michelle Proctus In Support called a liar, said that she committed perjury, and Of Defendant Alan Dershowitz's Motion To Dismiss claimed that she conspired with her lawyers at the law Complaint ("Proctus Decl."), dated June 25, 2019 [dkt. firm of Boies Schiller Flexner LLP "the Firm" or "BSF") no. 24], Ex. E; Proctus Decl. Ex. F; Proctus Decl. Ex. H; to extort Dershowitz and others redicates this Proctus Decl. -2, 8.9, 53-55, 61.63). These action on the grounds a Dershowitz's included saying tory was "completely, totally statements--which she avers are false—are actionable fabricated, made-up," that the allegations were "part of a defamation. pattern of made up stories a ainst prominent people and world leaders," and that is a "serial perjurer," a Before the Court are Dershowitz's motions to dismiss the "serial liar," and a "seria prostitute." (Proctus Decl. Ex. action for failure to state a claim and to disqualify BSF as E; Proctus Decl. Ex. G at 2-28). Plaintiff's counsel. For the reasons stated below, Dershowitz's motion to dismiss is denied, and his motion In November 2018, the Miami Herald published the first to disqualify the Firm is granted. in a series of articles that incl erences to Dershowitz's alleged sexual abuse o (Compl. at ¶ 13). In response, Dershowitz ma e a number of statements nein the alleged abuse took place and questioning lotives. Dershowitz said, "[T]he story was 100% flatly categorically made up" and I. Background land her attorneys [at BSF] fabricated the Two discrete sets of facts form the background of the two assertion in order to get money from other separate motions. The first relates to the defamation claim itself, while the second relates to the run-up to and filing wealthy people." (Id. at ¶ 17). Dershowitz calle "certified, complete, total liar" who "simply male ”1; ta WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00100688 M r. Dershowitz, 410 F.Supp.3d 564 (2019) is " ory for money." (kt) Dershowitz also accused of "committing the felony of perjury." (a. at 1 notes concerning his acting in `self defense' to the charges leveled against him." (a. at 6). 21). A day after receiving the Confidential Memorandum and haracterizes Dershowitz's "central assertion" as after commenting on it, Sires informed Dershowitz that he ommitted perjury and that she and her and Singer were "precluded from assisting [Dershowitz] attorneys 'hatched a scheme to falsely accuse in this matter due to a conflict, the nature of which we are Dershowitz of sex trafficking as part of a criminal attempt not at liberty to discuss." (a at 2). Dershowitz responded to extort a settlement from another party." (a at ¶ 14). "Darn. I was really hoping you could come on board." a lleges that Dershowitz knew his claims of perjury were false because "Dershowitz ... knew that David Boies ("Boies"), a name partner in the Firm, met Dershowitz had in fact had sex with Plaintiff." ak at 1 with in July 2014 and agreed to represent her. 15). (Declaration of Joshua Schiller In Support Of Plaintiffs Memorandum Of Law In Opposition To Defendant's Motion To Disqualify Boies Schiller Flexner("Schiller Decl."), dated July 3, 2019 [dkt. no. 36], Ex. 12 at Ty 5.6)). Sigrid McCawley, a BSF partner, represented as a fact witness in the since-settled defamation suit brought by Cassell and Edwards against Dershowitz b. Motion to Disqualify in Florida. (Sch. Ex. 4 at 11 43, 45). The Firm also represented n two other matters, an appeal On January 22, 2015, Ders eared on the Today to the Fourth ourt of Appeals in Florida and Show where he disputed allegations against litigation filed in September 2015 in this district against him. Afterwards, Carlos Sires ("Sires"), a partner at the Jeffrey Epstein's compatriot, Ghislaine Maxwell. Firm's Fort Lauderdale office, emailed Dershowitz saying (Schiller Decl. Ex. I2 at ¶ 8). that Defendant had a "very strong appearance on the Today [S]how" and informing him, "If there is anything I Sires says that on January 22, 2015, the same day he can do for you, please let me know." (Declaration of Alan initially contacted Dershowitz offering assistance, Sires Dershowitz ("Dershowitz Deer), dated June 7, 2019 spoke telephonically with Dershowitz and informed him [dkt. no. 10], Ex. H at 18). That day, Dershowitz responded, saying he would "love [Sires'] help." (a at that the Firm would need to run a conflict check. While Dershowitz does not address this assertion, he says that by 14). Sires then wrote to Dershowitz saying, "I just the next day, he believed there was no conflict check exchanged emails with [BSF partner] Stuart [Singer] and outstanding. (Schiller Decl. Ex. 8 at ¶ 5; Dershowitz Decl. voiced my desire to do what we can to help you out. He at ¶¶ 33-36). Further, Dershowitz says that he offered to shares that desire. I will speak with him tomorrow in call David Boies, saying Boies is a friend, but that Sires more detail ...." (a at 12). The next day, Sires wrote said it would be unnecessary. (Dershowitz Decl. at 1 34). Dershowitz saying, "Stuart and I think we can provide Singer contacted Boies and raised the possibility of help." (a) Sires wrote to Dershowitz that he and Singer representing Dershowitz; Boies informed Singer that there "look forward to working with [Dershowitz] on this" and was a conflict, and Singer immediately informed Sires. asked for copies of the pleadings. (a at 10). (Schiller Decl. Ex. 8 at ¶ 16). On January 30, 2015, Sires sent the email to Dershowitz saying that a conflict Dershowitz had a document marked "CONFIDENTIAL precluded the Firm from providing representation to L/C PRIVILEGE" ("Confidential Memorandum") sent to Dershowitz. (a at 8-9; Schiller Decl. Ex. 8 at 1 16; Sires and others (apparently all lawyers) that contained a Dershowitz Decl. Ex. H at 2). discussion of the case and Dershowitz's thoughts on legal strategy. (Sealed Tr. at 73:3, Sept. 24, 2019; Declaration On February 9, 2015, the Firm's General Counsel issued a of Imam Ansari, dated July 23, 2019 (Sealed Document screening memorandum to all Firm personnel, directing Placed in Vault [dkt. no. 42] ), Ex. A). Dershowitz also Sires and Singer not to discuss or share any information sent Sires a number of court pleadings, which Sires said regarding any aspect of the allegations against Dershowitz he would review. (Dershowitz Decl. Ex. H at 5, 9). or Dershowitz's responses to those allegations with any other Firm personnel. (Schiller Decl. Ex. I I). *568 Sires wrote back saying, "I'm sure you have already looked at this issue, but the attached opinion and Although these facts are largely undisputed, other facts Restatement section relate to Alan's recently-circulated relating to Dershowitz's interactions with Boies are WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00100689 Dershowitz, 410 F.Supp.3d 564 (2019) vigorously disputed. 2019). Proving the point, several BSF partners have submitted affidavits on these motions with respect to the In Ma of 2015, Dershowitz met with Boies to discuss alleged scheme to extort Mr. Wexner. E.g. Schiller Decl. Ilegations. (Compl. at ¶ 70; Dershowitz Decl. Ex. 12 at ¶ 22 (Affidavit of David Boies sworn to on Dec. at ¶ 47). Dershowitz says that he told Boies that 1, 2017), Ex. 13 at ¶ 5 (Affidavit of Sigrid S. McCawley Dershowitz's "records ... demonstrated that sworn to on Nov. 30, 2017), Ex. 16 at 6 (Affidavit of allegations could not be true." (Dershowitz Decl. at ¶ 48). Stephen N. Zack sworn to on Nov. 22, 2017). Dershowitz alleges that during this meeting, and in multiple p ftenvards, Boies stated that he did Dershowitz says he plans to produce the recordings of his not believe 'legations against Dershowitz. calls with Boies and call Boies to testify to these at¶¶ 48.6I). Dershowitz recorded one or more of these conversations at trial. (Dershowitz Decl. at ¶¶ 73-75). discussions and played them to reporters in support of his According to the preliminary transcript of the call allegation that the Firm's attorneys did not believe prepared by defense counsel Boies told Dershowitz that (Compl. at ¶ 69; Dershowitz Decl. at ¶ 59). he proposed to say to "[W]e have now reviewed the documentary evidence an we are convinced that your acknowledges that these communications took belief [that you had relations with Dershowitz] is wrong pace ut alleges that Dershowitz's *569 statements and we would like to explore with you how you could regarding his meeting with Boies are taken out of context have come to this conclusion that is wrong." (Declaration and that the recordings Dershowitz produced to reporters of Alan Dershowitz, dated Sept. 25, 2019 ("Dershowitz were also "out of context." (Compl. at ¶ 69). Boies says Sept. 25 2019 Decl.") (Sealed Document Place "old Mr. Dershowitz that [he] was convinced Ms. [dkt. no. 52] ), Ex. A). In connection with as telling the truth as she recalled it." allegations that Dershowitz lied when he sat s e upp °mental Declaration of David Boies ("Boies conspired with her attorneys at BSF to extort Dershowitz Decl."), dated July 3, 2019 [dkt. no. 35], at ¶ 4). Boies and others. (Compl. ¶ 17 (c)), Dershowitz also says he al at the time Dershowitz "did not dispute that plans to take the depositions of lawyers in the Firm and Ms vas truthfully recounting what she believed call them as trial witnesses. (Dershowitz Decl. at ¶ 75). happened" but Dershowitz asserted that Ms. had "made an honest mistake and had confused [Dershowitz] with another friend of Mr. Epstein." (Id.) Boies says that Dershowitz "was never able to substantiate his assertions" and that the Firm was "increasingly uncovering evidence that was conha Dershowitz's assertions and II. Legal Standard supportive of M rt." (Id. at ¶ 7). The Complaint alleges that Dershowitz said on December 2, 2018 that he was "deliberately framed for financial a. Motion to Dismiss reasons" and that Dershowitz used as support for this claim the statement he attributed to Boies that To survive a motion to dismiss under Rule 12(bX6), the claims were "wrong ... simply wrong." (Comp. at plaintiff must plead enough facts "to 'state a claim to 17(c)). Although the Complaint does not state that Boles relief that is plausible on its face.' lqbal, 556 U.S. at is the lawyer who made the statement, it concedes that the statement was made and that the statement was used to 663, 129 S.Ct. 1937 (auoting / *570 Bell Atl. Corp. v. supii r ershowitz's claim that Dershowitz was extorted Twombly 550 U.S. 544, 570, 127 S.Ct. 1955, 167 by and her lawyers. act at 11117, 69). There is no L.Ed.2d 929 (2007)). A court must accept all question that Dershowitz's allegations of extortion relate well-pleaded facts as true and must draw all reasonable to BSF. At oral argu Court asked if "the gist of inferences in favor of the plaintiff. Twombly, 550 the statement was tha conspired with people in U.S. at 570, 127 S.Ct. 1955. But a court is not bound to [BS1Mrt, among others, Wexner" to which counsel accept as true legal conclusions that are couched as for , BSF) confirmed the Complaint's factual allegations. lqbal, 556 U.S. at 678, 129 S.Ct. allegation that it was a "defamatory statement" (Tr. 65:3, 1937. "Nor does a complaint suffice if it tenders 'naked Sept. 24, 2019). A few moments later, the Court again asset-hoofs!' devoid of 'further factual enhancement.' " said to counsel fo [t]he defense says that they're going to call ... I don't know if it's Ms. Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. McCawley or who, on the extortion issue," to which BSF 1955). If there are insufficient factual allegations to raise confirmed, "Right, your Honor." (Tr. 66:12, Sept. 24, a right to relief above the speculative level, the complaint WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00100690 Dershowitz, 410 F.Supp.3d 564 (2019) -. tJ must be dismissed. Twombly, 550 U.S. at 555, 127 libel is one year. P N.Y. C.P.L.R. 215(3). New York's S.Ct. 1955. single publication rule is that "a defamation claim accrues at publication, defined as the earliest date on which the work was placed on sale or became generally available to the public.' " Van Buskirk v. The New York Times Co. 325 F.3d 87, 89 (2d Cir. 2003) (Quoting Tomasino v. William Morrow & Co. 174 A.D.2d 734, 571 N.Y.S.2d 571, 572 (2d Dep't 1991)). Dershowitz invokes the rule b. Motion to Disqualify to argue that the statements he made in late 2018 and 111 I2IThe authority of federal courts to disqualify counsel early 2019 (facially made within the statute of limitations) are in fact time-barred because they are "substantively "derives from their inherent power to preserve the identical" to statements he previously made in 2015 (Le,, integrity of the adversary process." Hempstead Video, outside the one year statute of limitations). (Professor Inc. v. Inc. Vill. of Valley Stream 409 F.3d 127, 132 (2d Alan Dershowitz Memorandum In Support Of Motion To Cir. 2005Xintemal quotation marks omitted). In deciding Dismiss Complaint ("Mot. Dismiss"), dated June 25, 2019 whether to exercise this power, courts must weigh "a [dkt. no. 23], at 10-11). The Court, however, is not client's right freely to choose his counsel against the need persuaded by this argument, especially in light of the to maintain the highest standards of the profession." Id. rationale for this common law rule. (internal quotation marks omitted). New York's adoption of the single publication rule came 131 141 Is]The rules of the American Bar Association and in response to Duke of Brunswick v. Harmer (1849) 117 state disciplinary bodies "merely provide general Eng. Rep. 75; 14 Q. B. 185, in which the plaintiff brought guidance and not every violation of a disciplinary rule an action based on a defamatory statement made in a will necessarily lead to disqualification." Id: see also newspaper published *571 by the defendant seventeen Bd. of Ed. of City of New York v. Nyquist, 590 F.2d years earlier. The defendant sold and delivered a copy of 1241, 1246 (2d Cir. 1979). Motions to disqualify are the newspaper to the plaintiff's agent seventeen years viewed with disfavor because of their "vulnerability to after publication, and, as the New York Court of Appeals abuse as litigation tactics." CQS ABS Master Fund Ltd. v. summarized it, the English court held "each delivery to a MBIA Inc. 2013 WL 3270322, at .8 (S.D.N.Y. June 24, third person of a defamatory article constituted a new 2013). Nevertheless, "any doubt is to be resolved in favor publication of the libel, which in turn gave rise to a new • cause of action." t" Gregoire v. G. P. Putnam's Sons of disqualification." P Hull v. Celanese Corp. 513 F.2d 568, 571 (2d Cir. 1975). The Court must determine 298 N.Y. 119, 122-23, 81 N.E.2d 45 (N.Y. 1948). whether the attorney's conduct would "tend[ ] to taint the underlying trial." ti • Nvquist, 590 F.2d at 1246. New York rejected the English rule and instead adopted the single publication rule to provide repose to defendants and ensure that it could not be the case that "the Statute of Limitation would never expire." ? I:l id. at 125, 81 N.E.2d 45. The New York Court of Appeals expressly sought to preclude the specter that a book printed fifty years ago III. Discussion could form the basis of a defamation claim if the old book were sold today. Id. As Judge Sack explains: a. Motion to Dismiss Dershowitz argues that (i) claims are The ... rule was applied time-barred, and (ii) his statements are protected by the traditionally to mass publications self-defense privilege and therefore not actionable. under which a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, 1. Statute of Limitations and the Single Publication Rule regardless of the number of "11n New York, the statute of limitations for slander and copies of the publication WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00100691 Dershowitz, 410 F.Supp.3d 564 (2019) distributed or sold. Publication in deliberate decision" to publish a paperback version of a a new form republication of a previously-published hardcover b k with respect to person's spoken words in a book, which plaintiff did not sue).) as alleged exactly or the publication of a hardcover that. (Compare Compl. at ¶ Compl. at ¶ 17). book in softcover format or as a Republication of the prior statements has also been found motion picture is a separate actionable where additional material is added to the prior publication for which the statute statements. E.g., !* In re Davis 347 B.R. 607, 612 (W.D. begins to run anew. Ky. 2006) (holding that adding "Breaking News!" and "Update!" sections to previously published material constituted an actionable republication). Robert D. Sack, Sack on Defamation: Libel. Slander, and Related Problems § 2.6.4, Practising Law Institute, (5d Dershowitz, who has proclaimed his appreciation of ed. 2017X"Sack") (quotations omitted, emphasis added). chutzpah, Alan Dershowitz, Chutzpah (1992), employs it to advance the argument that his actions are analogous to The single publication rule has been adapted to a passive republication. Surveying the cases shows that blications on the Internet under a similar rationale. this ain't that. r Firth v. State, 98 N.Y.2d 365, 370, 747 N.Y.S.2d 69, 775 N.E.2d 463 (N.Y. 2002). In adapting the rule to the Relying on Clark, Dershowitz argues: "[W]here the allegedly defamatory statements have been widely Internet, the New York Court of Appeals recognized that disseminated over the Internet via prominent news one of the rationales for the rule was to prevent "endless organizations with worldwide reach, they have 'already retriggering of the statute of limitations." Id. been directed at most of the universe of probable interlocutors' and there is as a matter of law no new ITIFirth and other cases applying the rule in the Internet audience to reach, and no new cause of action accrues." context did not hold that once a defendant makes a (Reply Memorandum In Support Of Alan Dershowitz's statement in a prominent place on the Internet, he can Motion To Dismiss Complaint ("Def. Dismiss Rep."), proactively repeat that claim in new places on the Internet ad infinitum and remain immune from suit. Republication dated July 16, 2019 [dkt. no. 40], at 4 citing !' Clark to a new audience or in a new forum does not come 617 F. App'x. at 506) (emphasis added). Dershowitz's within the single publication rule. Where a defendant misreading of Clark is evident from the sentences before takes an affirmative step to republish the defamatory and after the sentence he quotes. The discussion of "no material, he may not find refuge in the single publication new audience" was specifically related to "run-of-the-mill rule which is designed to provide repose to inactive or hyperlinks, website updates, or interface redesigns." passive defendants. "The justification for [the Clark 617 F. App'x at 506. Such passive changes republication] exception to the single publication rule is "typically demonstrate neither the intent nor the ability to that the subsequent publication is intended to and actually garner a wider audience than the initial iteration of the reaches a new audience." f 1 Firth 98 N.Y.2d at 371, 747 online statement could reach." Id. N.Y.S.2d 69, 775 N.E.2d 463. The single publication rule was meant to protect the weary, not the wily. Because Dershowitz did not make only passive changes to a website or the like, he can find no refuge in Clark. His 181 PIThe case law distinguishes between those 2018-19 statements are alleged to be "a separate republications that include an "affirmative act" to present aggregate publication from the original on a different occasion [and] not merely a delayed circulation of the the material again and those that are passive.' II *572 Clark v. Viacom Intl Inc. 617 F. App'x 495, 505 (6th original [statements]." Firth, 98 N.Y.2d at 371, 747 Cir. 2015). New York case law requires a defamation N.Y.S.2d 69, 775 N.E.2d 461 Compl. 11117, 21, 86, plaintiff seeking to avoid the single publication rule to 92, 98). allege "a separate aggregate publication from the original on a different occasion which is not merely a 'delayed leges that Dershowitz's statements in 2018 and 2019 were an attempt to reach a whole new cohort of circulation of the original edition.' " P a Firth 98 N.Y.2d who posted his statements to new audiences. at 371, 747 N.Y.S.2d 69, 775 N.E.2d 463 (quoting pposition papers allege *573 that Dershowitz Rinaldi v. Viking Penguin 52 N.Y. 2d 422, 435, 438 communicated in 2015 through the Today Show and an N.Y.S.2d 496, 420 N.E.2d 377 (N.Y. 1981) (actionable op-ed in The Wall Street Journal, (Pl. Disqualify Opp. at republication where publisher made a "conscious and 7-8; Schiller Decl. Ex. 8 at 1 II), while the Complaint WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00100692 . Dershowitz, 410 F.Supp.3d 564 (2019) alleges that in 2018 and 2019, he gave interviews to the reputation against the outrageous, knowingly false and Miami Herald, CNN, the NY Daily News, Local 10 defamatory allegation publicly and maliciously leveled News, RawStory.com, Law & Crime, The Crimson, and against him by the Plaintiff." (Mot. Dismiss at 1). In other Vanity Fair. (Compl. Exs. 1.6). As alleged, these are words, he admits he took affirmative steps to republish his clearly new audiences even if, arguendo Dershowitz prior statements to defend himself and his reputation by made the same statements.= Thus, Dershowitz cannot influencing new audiences or re-influencing old claim the benefit of the single publication rule. g audiences. Said differently, Dershowitz went looking for Firth 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d trouble, and by his repeated affirmative republications, he 463 ("The justification for [the replication exception] to found it. the single publication rule is that the subsequent publication is intended to and actually reaches a new Finally, it is worth noting that there is no limiting audience.") principle to Dershowitz's bold position. It cannot be the law that, having spoken in 2015 and not having been sued *574 within one year, Dershowitz is now able to "go on Dershowitz's invocation of Hoesten v. Best, 34 TV seven days a week, 20 channels a day forever and say A.D.3d 143, 821 N.Y.S.2d 40 (N.Y. App. Div. 1st Dep't the same things." (Tr. 4:25, Sept. 24, 2019)) That is 2006), is similarly unavailing. In that case, the alleged because the rationale undergirding the single publication republication occurred in a private meeting and was rule is to provide repose to passive defendants while "made to three ABC executives who were already affording plaintiff the possibility of a recovery for intimately familiar with the complaints previously levied affirmative republications. against plaintiff." Id. at 151, 821 N.Y.S.2d 40. One of the three executives had already received the prior Dershowitz argues that uld have sued Prof. publication, and the other two executives had known of Dershowitz over his denials notwithstanding their truth) the activity relating to the allegedly defamatory statement. within a year of their original publication in 2015." (Def. Id. The court held that even if the larger organization, Dismiss Rep. at 5). But this would also be true for a ABC, was not considered a single audience for plaintiff who sues over a softcover edition of a book after republication purposes, the three executives cannot having foregone the opportunity to sue over the reasonably be seen as a new audience. Id. Given this and hardcover, which is exactly what occurred in Rinaldi the fact that the statement made was "identical" to the supra and is perfectly permissible: prior complaint, the Court found no republication. Id. [A] rebroadcast of a television show, a reprint of a Analogizing Hoesten to this case is beyond a stretch. The magazine article, or a new edition of a book—even if putative "new audience" in Hoesten was comprised of substantively identical to the initial iteration (such as a three easily identifiable individuals who were "intimately paperback edition of a previously published book hs e familiar" with the prior, identical statements, and thus the e.g., Rinaldi v. Viking Penguin. Inc. 52 N.Y.2d three executives who heard the defamatory statements 422, 438 N.Y.S.2d 496, 420 N.E.2d 377, 382 (1981)[ could not "reasonably be seen as a new audience." Id. ("the bringing out of the paperbacks unquestionably Here, no particularized individuals are identified as was that of a new edition and, as such, a comprising either the prior or present audiences, and there republication.") ] )—generally will reset the limitations is no plausible assertion that all of the myriad unidentified period, because each is produced to garner an audience 2018-19 recipients of the statements were familiar with that the preexisting dissemination of the statement Dershowitz's prior statements from 2015 (other than could not reach. See Restatement (Second) of Torts § Dershowitz's novel and unsupported concept that 577A, cmt. d. publication "disseminated over the internet via prominent news organizations with worldwide reach" always 1Clark 617 F. App'x at 505. Dershowitz would have necessarily means that "as a matter of law [there is] no the Court reverse this well-established jurisprudence. The new audience to reach, and no new cause of action Court declines to do so and instead adheres to established accrues upon their repetition." (Def. Dismiss Rep. at 4).) precedent. The Complaint alleges that Dershowitz actively republished his 2015 statements in 2018 and 2019 and evinced an intent to garner a wider audience in 2018.19 than he had reached in 2015, (Compl. ¶'] 50.51, 92, 98), and by Dershowitz's own account he "has made every lawful effort available to him to defend himself and his 2. Self-Defense Privilege WESTLAW © 2020 Thomson Reuters. No claim to original U.S Government Works. 9 EFTA00100693 Dershowitz, 410 F.Supp.3d 564 (2019) 1101Dershowitz additionally argues that his statements are that defendant Ghislaine Maxwell's statements in that subject to a qualified privilege because they were made in case were made "with malice and knowledge of their reply to false charges that gave rise to his right to defend falsity." 165 F. Supp. 3d at 155. This was a sufficient himself. (Mot. Dismiss at 16). New York courts recognize pleading to defeat a qualified privilege defense at the a qualified privilege of reply: motion to dismiss stage. Id. "[a] person also has a right to defend himself or herself Dershowitz attempts to distinguish Maxwell on the from charges of unlawful activity .... An individual is grounds that (1) Dershowitz is a public figure who thus privileged to publish defamatory matter in response to should be afforded more "latitude" to respond to an attack an attack upon his or her reputation; the speaker is and (2) the court in Maxwell applied the wrong standard given more latitude in such a situation than if the of malice. statements were not provoked." First, on the greater latitude argument, Dershowitz's Sack at § 9.2.1; Reynolds v. Pegler 223 F.2d 429, 433 citations to [ g Gertz v. Robert Welch. Inc. 418 U.S. 323, (2d Cir. 1955); Konikoff v. Prudential Ins. Co. of Am. 1999 WL 688460, at *12 (S.D.N.Y. Sept. 1, 1999), aff'd 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and PINew York Times Co. v. Sullivan 376 U.S. 254, 305, 84 S.Ct. 710, 1234 F.3d 92 (2d Cir. 2000). 11 L.Ed.2d 686 (1964) are unavailing. Dershowitz argues that because as a public figure he would have a higher Although defendants are not required to "follow Marquis burden if he were suing for defamation, he should be of Queensberry rules" while allowing plaintiffs to "fight freestyle," there are definite limitations to the qualified afforded more latitude in responding when others allegedly defame him. In Sullivan Justice Goldberg privilege. *575 R.A.V. v. City of St. Paul, Minn. illuminated some of the concerns the Court was targeting, 505 U.S. 377, 392, 112 S.Ct. 2538, 120 L.Ed.2d 305 writing, "[T]he Constitution accords citizens and press an (1992); Collier v. Postum Cereal Co. 150 A.D. 169, 178, unconditional freedom to criticize official conduct." 134 N.Y.S. 847 (N.Y. App. Div. 1st Dep't 1912) ("One in self-defense is not confined to parrying the thrusts of his 4 II Sullivan 376 U.S. at 305, 84 S.Ct. 710 (Goldberg, J., concurring). What animated the Court and Justice assailant. Of course, the counter attack must not be Goldberg in Sullivan were concerns about the need to unrelated to the charge, but surely the motives of the one protect discussion of "public issues" and "official making it are pertinent.") Defendant and Plaintiff both conduct," not a public figure's right to respond. Gertz cite a Nevada case that laid out a standard for forfeiting explains that "[T]he state interest in compensating injury the qualified privilege: "The privilege may be lost ... if the to the reputation of private individuals requires that a reply: (1) includes substantial defamatory matter that is different rule should obtain with respect to [public irrelevant or non-responsive to the initial statement; (2) includes substantial defamatory material that is persons]." P ¶ Gertz, 418 U.S. at 343, 94 S.Ct. 2997. disproportionate to the initial statement; (3) is excessively These cases do not address and certainly do not establish publicized; or (4) is made with malice in the sense of that public figures somehow have an enhanced right to actual spite or ill will." State v. Eighth Judicial Dist. defame. Court ex rel. County of Clark, 118 Nev. 140, 42 P.3d 233, 239 (2002). Second, Dershowitz argues that the court in Maxwell applied the wrong standard for d e self-defense In a case related to this one, the Court's dear departed privilege, i.e., it misstated what must plead in colleague, Judge Robert W. Sweet, held that because the order to preclude Dershowitz from availing himself of the qualified privilege of reply is an affirmative defense that a self-defense privilege. (Del. Dismiss Rep. at 9). plaintiff has a right to rebut, it is not appropriate for Dershowitz argues that "the self-defense privilege *576 is resolution on a motion to dismis Maxwell only forfeited by a reply that is excessive in scope or 165 F. Supp. 3d 147, 155 (S.D.N. . e Court of content, or which is motivated solely by ill will or spite." Appeals has said that if "the defendant's reply was made (Id. at 10) (emphasis added). In other words, he argues in bad faith ... the defense fails" and that "[i]t is the that was required to plead that Dershowitz was function of the jury to pass upon the question of whether motivated solely by ill will or spite and that because she or not defendant published the alleged defamatory matter did not, this motion can be granted on the face of the in good faith, as this is a subject on which reasonable men Complaint. may differ." Reynolds v. Pegler 223 F.2d at 433. However, the court in Maxwell held that either common InM. MtucwelMas she does here, alleged law or constitutional malice can defeat the defense of WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00100694 Dershowitz, 410 F.Supp.3d 564 (2019) qualified privilege in New York. 165 F. Supp. 3d at 155; suits, then Dershowitz's quarrel properly is with the cf. Liberman v. Gelstein 80 N.Y.2d 429, 438, 590 Federal Rules of Civil Procedure which "represented a N.Y.S.2d 857, 605 N.E.2d 344 (N.Y. 1992). The New major break from the common law and code systems." York Court of Appeals has defined constitutional malice Arthur R. Miller From Conley to Twombly to lqbal: A as "knowledge of falsity or reckless disregard for truth or Double Play on the Federal Rules of Civil Procedure 60 Duke L.J. I, 3.5 (2010) (Explaining that the drafters of falsity," Liberman 80 N.Y.2d at 434, 590 N.Y.S.2d the Federal Rules "reshaped civil litigation to reflect core 857, 605 N.E.2d 344, an' most assuredly has values of citizen access to the justice system and pleaded that. (E.g., Compl. at ¶ 15, 17, 47-52).4 adjudication on the merits based on a full disclosure of IIIIDershowitz, however, argues that the self-defense relevant information."); see P.' Dioguardi v. Duming, privilege is unique and only a showing of "ill will or 139 F.2d 774 (2d Cir. 1944). spite" can properly defeat it. (Def. Dismiss Rep. at 9). Dershowitz cites no binding authority that would impel II21Therefore, the Court adopts the reasoning of Maxwell. the Court to limit the holding of the New York Court of as repeatedly pled that Dershowitz's statements were made with malice and knowledge of their falsity. Appeals in Liberman v. Gelstein 80 N.Y.2d at 434, (Compl. at 11 15-17, 47-52). Specifically, 590 N.Y.S.2d 857, 605 N.E.2d 344, in this way. Instead pled that she was "forced to have sex withr an of citing a case, Dershowitz invokes "common sense," Dershowitz." (LL at ¶ 36). Taking this fact to be true, as arguing that "[w]ere the self-defense privilege to be the Court must, it is a logical conclusion that a false defeated by an allegation of knowing falsity or reckless denial of this charge was necessarily made with disregard for the truth, it would be no privilege at all." knowledge of falsity; Dershowitz could not have had sex (Del Dismiss Rep. at 10). Whatever he means by this with • falsely denied that fact without knowing formulation, it does not trump the New York Court of that what he was saying was Maxwell, 165 F. . The Court agrees with Judge Sweet's holding in Supp. 3d at 155-56. If at tri ils to prove that v. Maxwell that either constitutional malice or she was "forced to have sex with Alan Dershowitz" or if law malice can defeat the self-defense privilege, Dershowitz proves that he did not have sex with her at all, Maxwell, 165 F. Supp. 3d at 155, and the question of then the truth or falsity of his statements will be "good faith" regarding an assertion of that qualified established, and if they are true his lack of knowledge of privilege is to be proven at a later stage, Reynolds, 223 falsity will be established, b tion of this issue F.2d at 433.5 will await a jury. For now, as pled sufficient facts to defeat the qualified self-defense privilege. Dershowitz invokes a nightmare scenario where courts encourage defamation suits by false accusers and "First Accordingly, the motion to dismiss is denied. Amendment protected advocacy would be chilled to the point of freezing important debate." Dershowitz pits this as a story of fairness as between accusers and repliers. "Surely, Prof. Dershowitz has at least as much right to call his accuser a liar as the accuser *577 had to call him a pedophile and rapist. Either the law must protect both the accuser and accused in such a cases, or it must not protect b. Motion to Disqualify either." (Mot. Dismiss at 21). While as a matter of ultimate law this may well be correct, that Dershowitz argues the Firm should be disqualified for two Dcrshowitz was always free to sue if he felt independent reasons. First, based on a conflict of interest aggrieved by what he views as her false and defamatory (Memorandum Of Law In Support Of Alan Dershowitz's statements about him. But the Federal Rules of Civil Motion To Disqualify ("Def. Disqualify Mot."), dated Procedure require Dershowitz, at the motion to dismiss June 7, 2019 [dkt. no. 8], at 16) and, second, based on the stage, to satisfy different requirements from those applied advocate-witness rule, (a at 26). to Plaintiff. The putative "unfairness" Dershowitz complains of applies to any civil action-plaintiffs can put On conflict of interest, Dershowitz argues that he was a their allegations out to the world and must only plead former client of the Firm, he provided the Firm with them, not prove them, at the motion to dismiss stage. The confidential information, and the Firm is now adverse to question the Court must address is whether they are him in a substantially related litigation. (lia at 16). sufficient, not whether they are true. Dershowitz argues that Sires' conflicts should be imputed to the Finn. (a at 25). The Firm argues that Dershowitz If the Court's decision somehow encourages defamation has waived this argument by having failed to move timely WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00100695 Dershowitz, 410 F.Supp.3d 564 (2019) after it arose. (S.D.N.Y.), reconsideration denied, 319 F. Supp. 3d 741 (S.D.N.Y. 2018) (gtstgi ! I Decker v. Nagel Rice LLC On the advocate-witness rule, Dershowitz argues that 716 F. Supp. 2d 228, 232 (S.D.N.Y. 2010)). Boles and other Firm lawyers who represer are necessary witnesses on substantial issues in this action. I16IA lawyer may also not act as an advocate where (a. at 12). The credibility of these advocate-witnesses "another lawyer in the lawyer's firm is likely to be called may have to be challenged by other members of the Firm as a witness on a significant issue other than on behalf of who *578 "will not have the necessary independence." the client, and it is apparent that the testimony may be (a at 13). He argues that the rule should not only disqualify Boles, McCawley, and other relevant lawyers prejudicial to the client." Murray v. Metropolitan Life Ins. Co., 583 F.3d 173. 178 (2d Cir. 2009) (gt N.Y. but also the entire firm based on imputation. (a. at 26). R. Profl Conduct § 3.7(b)(1)). The Court of Appeals has Because disqualification is so clearly required under the noted, though, that this rule "lends itself to opportunistic abuse." Id. advocate-witness rule, the Court does not reach the conflict of interest argument advanced by Dershowitz. It is thus unnecessary to reach the waiver argument in that it Ilene Court of Appeals explained that Rule 3.7(a) is designed to alleviate the risks that: applies only to the conflict of interest branch of the disqualification motion. The advocate-witness branch of the motion to disqualify arises out of the language of the Complaint itself, and Dershowitz moved on that basis (1) the lawyer might appear to within eight weeks of the filing thereof. vouch for his own credibility; (2) the lawyer's testimony might place opposing counsel in a difficult position when she has to 1. Advocate-Witness Rule cross-examine her " 31The advocate-witness rule prohibits an attorney from lawyer-adversary and attempt to representing a party where the attorney will be called as a impeach his credibility; (3) some witness. Rizzuto v. De Blasio 2019 WL 1433067, at may fear that the testifying attorney *3 (E.D.N.Y. Mar. 29, 2019); N.Y. R. ProfI Conduct § is distorting the truth as a result of 3.7. bias in favor of his client; and (4) when an individual assumes the Rule 3.7 of the New York Rules of Professional Conduct role of advocate and witness both, states: the line between argument and evidence may be blurred, and the a) A lawyer shall not act as advocate before a jury confused. tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact [...] b) A lawyer may not act as advocate before a ?IiMurray 583 F.3d at 178. The movant "bears the tribunal in a matter if: burden of demonstrating specifically how and as to what issues in the case the prejudice may occur and that the (I) another lawyer in the lawyer's firm is likely to likelihood of prejudice occurring [to the be called as a witness on a significant issue other witness-advocate's client] is substantial." Id. than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; I'7IAs developed at oral argument, (Tr. 59:2.60:1; 62:4-14; 63:3-16, Sept. 24, *579 2019), t en of N.Y. R. ProfI Conduct § 3.7. Dershowitz's motion to disqualify is that lieges in her complaint that Dershowitz's statements that she "MC rule differentiates between an attorney who will conspired with her BSF lawyers to extort him and others be called on behalf of his client and an attorney who will are false; she also refers t tement made by Boles be called as a witness other than on behalf of his client. in the recorded call that nas "wrong ... sim I Id. "In order to disqualify an attorney based on the wrong." (Compl. at ¶ 17(c), 69). By so pleadin advocate-witness rule, 'a party must demonstrate that the made the truth of these statements (Dershowitz's ultimate testimony is both necessary and substantially likely to be defense on the merits), including the actions and prejudicial.' " Prout v. Vladeck 316 F. Supp. 3d 784, 809 WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00100696 F=. Dershowitz, 410 F.Supp.3d 564 (2019) motivations of at least one of the Finn's attorneys, a Dershowitz contends that because such an explanation necessary--indeed essential--part of the Complaint. may be harmful to her, rial counsel must be Dershowitz has proclaimed that his defense to these free to discredit Boies's prejudicial statements even at the claims is that his statements are true; that Plaintiff did in expense of Boies's own professional reputation." (Def. fact conspire with Boies, McCawley, and other attorneys Disqualify Mot. at 13). Dershowitz argues that the Finn's in the Firm to extort him. (Tr. 63:14, Sept. 24, 2019); see partners and associates will not have the necessary Martin v. Hearst Corp. 777 F.3d 546, 552 (2d Cir. 2015) independence to pursue a line of questioning that might ("truth is an absolute defense to a defamation claim.") damage the professional reputation of the name partner of their firm in favor of a client. (Id. at 13). *580 At a Dershowitz's allegation of an extortion conspiracy is no minimum, the scenario Dershowitz paints--which cannot mere throwaway line. explicitly cha be disregarded--would be unseemly in the extreme. Dershowitz's "central assertion" as the facts tha committed perjury and that she and her attorneys ate e points to Interpharm. Inc. v. Wells Fargo Bank, a scheme to falsely accuse Dershowitz of sex trafficking N.A. where this court denied a motion to disqualify. as part of a criminal attempt to extort a settlement from 2010 WL 1141201, at *6 (S.D.N.Y. Mar. 25, 2010); another party." (Compl. at ¶ 14). pleads that such (Plaintiff's Opposition To Defendant's Motion To statements are false and defamatory. (a at ¶ 17). At trial, Disqualify Boies Schiller Flexner LLP ("Pl. Disqualify she will seek to prove, inter olio that BSF did not Opp."), dated July 3, 2019 [dkt. no. 33], at 21-22). participate in such a scheme (rendering Dershowitz's However, in Interpharm the court noted that the movant statements false), while Dershowitz will seek to prove "offer[ed] no evidence whatsoever that [opposing that that is exactly what BSF did (rendering his statements counsel] will offer any testimony or has any information true). Either way, BSF is immersed in the facts it pled. that would warrant his disqualification" under Rule 3.7. By including these allegations in the Complaint P 2010 WL 1141201, at *5. signed pursuant to Rule II, and filed by BSF, raises the specter of one set of BSF lawyers' examining Here, Dershowitz offers tape-recorded evidence of the another set of BSF lawyers, including name partner David statements which he contends support the truth of his Boies. Because plaintiffs are "masters of their extortion statement. (Compl. at ¶ 69). For example, the preliminary transcript prepared by defense couns complaints," Standard Fire Ins. Co. v. Knowles 568 Boies as proposing that he and McCawley say toll. U.S. 588, 595, 133 S.Ct. 1345, 185 L.Ed.2d 439 (2013), "[W]e have reviewed the documentary evidence and we the Firm is thus hoist on its own petard. are convinced that your belief [that you had relations with Dershowitz] is wrong and we would like to explore with Beyond that dispositive point, the Complaint also refers to you how you could have come to this conclusion that is conversations and communications between Boies and wrong." (Dershowitz Sept. 25 2019 Decl. Ex. A), I Dershowitz in which Dershowitz asserted that concedes these tapes exist and alleges that they purport to was mistaken in her claim about having sex with show statements made by Boies that "based on what was Dershowitz. (Comp]. at ¶¶ 69-81; Def. Disqualify Mot. at shown in [Dershowitz's summary, it would have been 6). Regarding these admitted conversations, impossible for assertions about him to be true, alleges they were taken "out of context." (Compl. all 69). and that if his asse ons proved out, counsel Dershowitz says he plans to adduce evidence that Boles would undertake to convince her that s e mus ave made agreed with Dershowitz's denial of allegations, a mistake." (Compl. at ¶¶ 69, 71). However, she adds that which will help Dershowitz prove that Dashov. Boies also told Dershowitz "(i) that [Dershowitz's telling the truth when he said that the Finn and assertions would have to be proven, (ii) that Ms. conspired to extort him. In order to prove his defense, had always been very clear that she recalled having had Dershowitz has stated his intention to call Boies, sex with Dershowitz multiple nd (iii) that McCawley, and other BSF attorneys to testify to these everyone was convinced that Ms. as telling the communications and expects, "if testifying truthfully, truth as she recalled it." (a at ¶ 71). these witnesses will offer testimony adverse and prejudicial to their own cheat (Del Disqualify Contends that Dershowitz will be unable to elicit Mot. at 27; Dershowitz Decl. ¶ 74). Dershowitz says such testimony because it will be inadmissible as Boies might seek to explain his statements in a manner statements made during settlement discussions. (P1. arrassing to [Boies] and [thus] detrimental to Disqualify Opp. at 22). The Complaint questions the r may seek to assert that his statements were propriety of Dershowitz's having made the recordings, merely hypothetical." (Def Disqualify Mot. at 13). (Compl. at ¶ 69), and Dershowitz responds that he "was WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 EFTA00100697 M v. Dershowitz, 410 F.Supp.3d 564 (2019) not wearing his attorney hat when that was recorded " r. at 178. Dershowitz has also shown that "the testimony 51:7; 52:4, Sept. 24, 2019), whatever that means. may be prejudicial to the client" based on the recorded included some of the details of these discussions wit conversations. Id. Boies in her Complaint drafted and filed by BSF, (Compl. VI 70.71), thus necessarily making them part of her case. In any event, admissibility will be determined in limine or a laims that the motion to disqualify is "premature at this point in time." (Pl. Disqualify Opp. at at trial. 21). However, disqualification early in the proceeding can give a plaintiff time to find a new attorney to represent Pine discussions between Boies and Dershowitz are not her without delaying trial. Gorbaty v. Wells Fargo Bank the only facts beyond the face of the Complaint itself that N.A., 2011 WL 318090, at *3 (E.D.N.Y. Feb. 1, 2011); raise the issue of the witness-advocate rule--they are [ Gleason v. Zocco 941 F. Supp. 32, 36 (S.D.N.Y. simply the most developed at this stage. Dershowitz has 1996) (noting that granting a motion to disqualify also announced his intention to take the depositions of "immediately after the action was commenced" would several BSF lawyers to help prove the truth of his make "prejudice to plaintiff of having to change counsel extortion assertion. (Tr. 35:6, Sept. 24, 2019). Again, it is ... insignificant"). Further, there is no justification for essential to follow the litigation jujitsu at work here: allowing an attorney to represent a "plaintiff during the says Dershowitz defamed her by falsely saying pre-trial aspect of [a] litigation when it is clear that he s e an BSF engaged in an . cheme; Dershowitz may be a material witness at trial, and it is clear that he says he said it and it is true urden is to prove it could be required to testify." Fulfree v. Manchester 945 is false in the face of Dershowitz's vehement claim that it F. Supp. 768, 772 (S.D.N.Y. 1996). is true. Truth, of course, is a complete defense. Printers II Inc. v. Professionals Pub.. Inc., 784 F.2d 141, 146 (2d Plaintiff's attorneys must be independent and free to Cir. 1986). Dershowitz stated that "if testifying truthfully, challenge the credibility of Boies and other BSF partners these witnesses will offer adverse and in order to test the allegations made in the Complaint they prejudicial to their own client, because their testimony will tend to prove what Dershowitz said is true. drafted and filed. !* Murray, 583 F.3d at 178. (Def. Disqualify Mot. at 27; Dershowitz Dec1.174). *581 Accordingly rtion to disqualify the Firm from Thus, it is plain that several of the Firm's lawyers will be representing is granted. essential trial witnesses on a major claim in the Complaint,' likely to be called by both parties and not merely called to identify documents as in Murray 583 F.3d at 179. Even if each of those lawyers denied participation in such a plot (and pretermitting IV. Conclusion cross-examination), some or all of the concerns raised by Defendant's motion to dismiss the complaint [dkt. no. 22] the Court of Appeals in Murray are present, particularly is denied. Defendant's motion to disqualify the law firm that "some may fear that the testifying attorney is of Boies Schiller Flexner LLP [dkt. no. 7] is granted. distortin the truth as a result of bias in favor of his 1 New counsel for Plaintiff and counsel for Defendant shall client." 583 F.3d at 178. Accordingly, the Firm must be disqualified to "preserve the integrity of the adversary confer and submit a proposed discovery plan no later than November 13. Counsel shall appear for a Rule 16 process," t Hempstead Video 409 F.3d at 132 ag(t &gt conference on November 20 at 11:00 A.M. Nyquist, 590 F.2d at 1246), and avoid "taint[ing] the underlying trial, PNyquist 590 F.2d at 1246. SO ORDERED. Dershowitz has carried his burden of imputation under Rule 3.7(b). He has shown that at the very least Boies "is likely to be called as a witness on a significant issue," All Citations whether Dershowitz's extortion claims (which the 410 F.Supp.3d 564 Complaint says are false) are true. II Murray, 583 F.3d Footnotes Examples of passive, non-actionable republication compiled in Clark include: third party's posting the WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 EFTA00100698 Dershowitz, 410 F.Supp.3d 564 (2019) statement elsewhere on the intemet, see Jankovic v. Intl Crisis Grp. 494 F.3d 1080, 1087 (D.C. Cir. 2007); passively maintaining the website to which the defamatory statement is posted see Pigpen v. NBCUniversal Media. LLC 734 F.3d 610, 616 (7th Cir. 2013); r " Ladd v. Uecker 323 Wis.2d 798, 806-07, 780 N.W.2d 216 (Wis. Ct. App. 2010); failing to remove a statement from a website after receiving notice of its falsity, see Roberts v. McAfee. Inc. 660 F.3d 1156, 1167-68 (9th Cir. 2011); adding an unrelated story to the web page that hosts the allegedly defamatory statement see Firth, 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d 463; creating hypertext links to previously published statements, see ' In re Philadelphia Newspapers. LLC 690 F.3d 161, 174-75 (3d Cir. 2012)(collecting cases); revising other information at the URL at which the allegedly defamatory statement is found, but leaving the statement itself intact, see I Yeager v. Bowfin 693 F.3d 1076, 1083 (9th Cir. 2012); updating a website's user interface to give visitors additional avenues to access the allegedly defamatory statements see Churchill v. State 378 N.J.Super. 471, 876 A.2d 311, 319 (N.J. Super. Ct. App. Div. 2005); or changing the URL at which the allegedly defamatory statement was posted i.e., posting the statement verbatim to a new URL), see Canatella v. Van De Kamp 486 F.3d 1128, 1134-35 (9th Cir. 2007). 2 Because the Complaint adequately alleges that Dershowitz's 2018-19 republication was not passive and was intended to reach new audiences, the Court need not reach the likely jury question of whether the 2018-19 statements were identical to the 2015 statements. [The Court] So tell me this. What is the limiting principle? Does your argument mean that Professor Dershowitz can go on TV seven days a week, 20 channels a day forever and say the same things? Mr. Cooper: Yes, your Honor. (Tr. 4:23-5:2, Sept. 24, 2019) aa* The Court: So that is essentially if you put it on the intemet you're immune. Mr. Cooper: Yes. (Tr. 14:11-13, Sept 24, 2019) aa* [The Court:] You argue at page 5 of your reply that if Ms. Maxwell's simple denials destroyed the plaintiffs reputation, then Professor Dershowitz's worldwide rebuke, you say, destroyed her reputation even more and now she's essentially libel proof. So is the rule to be taken from that that if you blast them pretty well the first time you can keep blasting them? Mr. Cooper: Well, you Honor, the answer to that question is yes. (Tr. 18:13-21, Sept. 24, 2019) 4 ga "As Defendant and Epstein well knew, Dershowitz's assertion was false. Dershowitz and Epstein knew that Dershowitz had in fact had sex with Plaintiff. Dershowitz and Epstein also knew that Roberts's assertions about Dershowitz were not part of any criminal extortion plot. Indeed, Dershowitz and Epstein knew that Roberts had identified Dershowitz as a sexual predator years before December 2014." (Compl. at I 15) (emphasis added); "Dershowitz made his false and defamatory statements as set forth above on behalf of himself and on behalf of his co-conspirator and client Epstein, in the Southern District of New York and elsewhere, in a deliberate effort to maliciously discredit Roberts and silence her efforts to expose the sexual abuse she suffered. Dershowitz and Epstein did so with the purpose and effect of having others repeat such false and defamatory statements and thereby further damaged Roberts's reputation. Dershowitz and Epstein knew Dershowitz's statements were false." (Id. at 1 47) (emphasis added). 5 Dershowitz's argument does raise an interesting thought that the parties will have to confront at trial: what is the interplay between plaintiffs prima facie case and Dershowitz's "affirmative defense" of truth? If Plaintiff fails to prove falsity on her direct loses for failure of proof, and there is no need for any defense, affirmative or otherwise. Here, laims and Dershowitz's truth defense are the mirror images of each falsity of the s mplained of will either be proven or not, and that will end the case. If roves falsity, she will have disproven Dershowitz's truth defense; if she doesn't prove falsity, he will require no defense. As noted above, three BSF lawyers have submitted affidavits on the topic of the alleged scheme to extort WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 EFTA00100699 Dershowitz, 410 F.Supp.3d 564 (2019) Wexner. See supra p. 569. End of Document O2020 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 EFTA00100700