Dershowitz, 410 F.Supp.3d 564 (2019)

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, v. Alan DERSHOWITZ, Defendant. 19 Civ. 3377 (LAP) 10/16/2019 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 she was forced to engage in sexual activity with him. Defendant moved to dismiss and to disqualify law firm Holdings: The District Court, Loretta A. Preska, Senior District Judge, held that: 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 (3) advocate-witness rule required that law firm be disqualified from representing plaintiff Motion to dismiss denied; motion to disqualify granted. Procedural Posture(s): Motion to Dismiss for Failure to State a Claim; Motion to Disqualify Counsel. West Headnotes (19) Attorneys and Legal Servicesfi•Inherent power or jurisdiction Authority of federal courts to disqualify counsel 121 Attorneys and Legal Servicese-Relation of remedy to client's right to counsel of choice In deciding whether to disqualify counsel, courts must weigh client's right freely to choose his counsel against need to maintain highest standards of profession. I Cases that cite this headnote Attorneys and Legal Services~Standards of professional conduct in general Rules of American Bar Association and state disciplinary bodies merely provide general guidance and not every violation of disciplinary rule will necessarily lead to disqualification of counsel. 141 Attorneys and Legal Services4H3isfavored or severe nature of remedy Attorneys and Legal Servicese-Resolution of doubt Motions to disqualify counsel are viewed with disfavor because of their vulnerability to abuse as litigation tactics, but any doubt is to be resolved in favor of disqualification. I Cases that cite this headnote 151 Attorneys and Legal Serviceso ctual or apparent impropriety 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 must determine whether attorney's conduct would tend to taint underlying trial. I Cases that cite this headnote 161 Limitation of ActionsinTorts 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. I/ 1 N.Y. CPLR § 215(3). 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 limitations for defamation claim commences upon original publication. 181 Limitation of Actions#•Torts Under New York law, defamation plaintiff seeking to avoid limitation bar arising from single publication rule must allege separate aggregate publication from original publication on different occasion that is not merely delayed circulation of original edition. 191 Limitation of ActionsinTorts Under New York law, single publication rule did not apply to bar on limitations grounds plaintiff's libel claims against defendant based on his alleged affirmative republication of defamatory statements about her to whole new cohort of journalists who posted his statements to new audiences, even if his prior statements had been disseminated over internet via prominent news organizations with worldwide reach. r N.Y. CPLR § 215(3). I Cases that cite this headnote 1101 Libel and Slander self-defense 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. 1111 Libel and Slander...Existence and Effect of Malice Under New York law, either constitutional malice or common law malice can defeat privilege to publish defamatory matter in response to attack upon reputation. 1121 Libel and Slander Existence and Effect of Malice 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 plead that defendant made statements with malice and knowledge of their falsity, as required to defeat defendant's claim to qualified 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. 1131 Attorneys and Legal Services•••Witness Under New York law, advocate-witness rule prohibits attorney from representing party where attorney will be called as witness. N.Y. R. Prof. Conduct 3.7. I Cases that cite this headnote 1141 Attorneys and Legal Services9•Witness Under New York law, in order to disqualify attorney based on advocate-witness rule, party must demonstrate that testimony is both necessary and substantially likely to be prejudicial. N.Y. R. Prof. Conduct 3.7. I Cases that cite this headnote 1151 Attorneys and Legal Servicesp-Persons affected; imputed disqualification Under New York law, lawyer may not act as advocate where another lawyer in lawyer's 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. 1161 Attorneys and Legal Servicese-Presumptions, inferences, and burden of proof in general Under New York law, on motion to disqualify counsel based on advocate-witness rule, movant bears burden of demonstrating specifically how and as to what issues in case prejudice may 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 1171 Attorneys and Legal Service90•Persons affected; imputed disqualification Under New York law, advocate-witness rule required that law firrn be disqualified from 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 between firrn attorney and defendant in which defendant asserted that plaintiff was mistaken in her claim, defendant had tape-recorded evidence of statements by firm attorney that he claimed supported his version of events, and defendant announced his intention to take depositions of firm lawyers to help prove truth of his extortion assertion. N.Y. R. Prof. Conduct 3.7. [18] Libel and Slander-9.Truth as justification in general Under New York law, truth is complete defense to defamation claim. 1191 Attorneys and Legal Services6.Witness Under New York law, there is no justification for allowing attorney to represent plaintiff during pre-trial aspect of litigation when it is clear that he may be material witness at trial, and it is clear that he could be required to testify. N.Y. R. Prof. Conduct 3.7. 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. Arthur Louis Aidala, Law Offices of Aidala & Bertuna, P.C., Brooklyn, NY, Christian Kiely, Howard M. Cooper, Todd & Weld LLP, Boston, MA, Imran H. Ansari, Aidala Bertuna & Kamins PC, New York, NY, for Defendant. OPINION & ORDER LORETTA A. PRESKA, Senior United States District Judge ("Plaintiff' or brings this ac ton or e ation against Alan Dershowitz ("Defendant" or "Dershowitz") _has long claimed that she was forced to engage in sexual activity with Dershowitz. In response, Dershowitz has repeatedly called a liar, said that she committed perjury, and claimed that she conspired with her lawyers at the law firm of Boies Schiller Flexner LLP "the Firm" or "BSF") to extort Dershowitz and others redicates this action on the grounds a Dershowitz's statements --which she avers are false—are actionable defamation. Before the Court are Dershowitz's motions to dismiss the action for failure to state a claim and to disqualify BSF as Plaintiff's counsel. For the reasons stated below, Dershowitz's motion to dismiss is denied, and his motion to disqualify the Firm is granted. I. Background Two discrete sets of facts form the background of the two separate motions. The first relates to the defamation claim itself, while the second relates to the run-up to and filing a. Motion to Dismiss In allegations the Court is required to accept as true at this stage, Ashcroft v. lqbal 5566 78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), lieges that she 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 Edwards, had engaged in "unethical behavior warranting "sent for filing the Joinder Motion." (Id. at ¶ 11). alleges that Dershowitz made this statement about her counsel "wrongfully." (a) Cassell *567 and Edwards sued Dershowitz for defamation, and that case was settled in April 2016. (I at 'II 11-12). In 2015, Dershowitz made a number of statements in various media outlets, including The Wall Street Journal, The New York Times, the BBC, CNN, the Today Show, and Reuters. (Declaration Of Michelle Proctus In Support Of Defendant Alan Dershowitz's Motion To Dismiss Complaint ("Proctus Decl."), dated June 25, 2019 [dkt. no. 24], Ex. E; Proctus Decl. Ex. F; Proctus Decl. Ex. H; Proctus Decl. -2, 8.9, 53-55, 61.63). These included saying tory was "completely, totally fabricated, made-up," that the allegations were "part of a pattern of made up stories a ainst prominent people and world leaders," and that is a "serial perjurer," a "serial liar," and a "seria prostitute." (Proctus Decl. Ex. E; Proctus Decl. Ex. G at 2-28). In November 2018, the Miami Herald published the first 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 land her attorneys [at BSF] fabricated the assertion in order to get money from other wealthy people." (Id. at ¶ 17). Dershowitz calle "certified, complete, total liar" who "simply male ta”1; WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00100688 Mr. Dershowitz, 410 F.Supp.3d 564 (2019) iory for money." (kt) Dershowitz also accused s" notes concerning his acting in `self defense' to the of "committing the felony of perjury." (a. at 1 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." alleges 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 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 Firm's Fort Lauderdale office, emailed Dershowitz saying Jeffrey Epstein's compatriot, Ghislaine Maxwell. that Defendant had a "very strong appearance on the (Schiller Decl. Ex. I2 at ¶ 8). 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 that the Firm would need to run a conflict check. While responded, saying he would "love [Sires'] help." (a at 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 Dershowitz had a document marked "CONFIDENTIAL sent the email to Dershowitz saying that a conflict 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 discussion of the case and Dershowitz's thoughts on legal Dershowitz Decl. Ex. H at 2). strategy. (Sealed Tr. at 73:3, Sept. 24, 2019; Declaration of Imam Ansari, dated July 23, 2019 (Sealed Document Placed in Vault [dkt. no. 42] ), Ex. A). Dershowitz also sent Sires a number of court pleadings, which Sires said he would review. (Dershowitz Decl. Ex. H at 5, 9). b. Motion to Disqualify *568 Sires wrote back saying, "I'm sure you have already looked at this issue, but the attached opinion and Restatement section relate to Alan's recently-circulated On February 9, 2015, the Firm's General Counsel issued a screening memorandum to all Firm personnel, directing Sires and Singer not to discuss or share any information regarding any aspect of the allegations against Dershowitz or Dershowitz's responses to those allegations with any other Firm personnel. (Schiller Decl. Ex. I I). Although these facts are largely undisputed, other facts 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. In Ma of 2015, Dershowitz met with Boies to discuss Ilegations. (Compl. at ¶ 70; Dershowitz Decl. at ¶ 47). Dershowitz says that he told Boies that Dershowitz's "records ... demonstrated that allegations could not be true." (Dershowitz Decl. at ¶ 48). Dershowitz alleges that during this meeting, and in multiple p ftenvards, Boies stated that he did not believe 'legations against Dershowitz. at ¶¶ 48.6 I). Dershowitz recorded one or more of these discussions and played them to reporters in support of his allegation that the Firm's attorneys did not believe (Compl. at ¶ 69; Dershowitz Decl. at ¶ 59). acknowledges that these communications took pace ut alleges that Dershowitz's *569 statements regarding his meeting with Boies are taken out of context and that the recordings Dershowitz produced to reporters were also "out of context." (Compl. at ¶ 69). Boies says "old Mr. Dershowitz that [he] was convinced Ms. as telling the truth as she recalled it." upp °mental Declaration of David Boies ("Boies Decl."), dated July 3, 2019 [dkt. no. 35], at ¶ 4). Boies al at the time Dershowitz "did not dispute that Ms vas truthfully recounting what she believed 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 supportive of M rt." (Id. at ¶ 7). The Complaint alleges that Dershowitz said on December 2, 2018 that he was "deliberately framed for financial reasons" and that Dershowitz used as support for this claim the statement he attributed to Boies that claims were "wrong ... simply wrong." (Comp. at 17(c)). Although the Complaint does not state that Boles is the lawyer who made the statement, it concedes that the statement was made and that the statement was used to sup riiershowitz's claim that Dershowitz was extorted by a nd her lawyers. act at 11117, 69). There is no question that Dershowitz's allegations of extortion relate to BSF. At oral argu Court asked if "the gist of the statement was tha conspired with people in [BS1Mrt, among others, Wexner" to which counsel for ,BSF) confirmed the Complaint's allegation that it was a "defamatory statement" (Tr. 65:3, Sept. 24, 2019). A few moments later, the Court again going to call ... I don't know if it's Ms. said to counsel fo [t]he defense says that they're McCawley or who, on the extortion issue," to which BSF confirmed, "Right, your Honor." (Tr. 66:12, Sept. 24, WESTLAW © 2020 Thomson Reuters. No claim to 2019). Proving the point, several BSF partners have submitted affidavits on these motions with respect to the alleged scheme to extort Mr. Wexner. E.g. Schiller Decl. Ex. 12 at ¶ 22 (Affidavit of David Boies sworn to on Dec. 1, 2017), Ex. 13 at ¶ 5 (Affidavit of Sigrid S. McCawley sworn to on Nov. 30, 2017), Ex. 16 at 6 (Affidavit of Stephen N. Zack sworn to on Nov. 22, 2017). Dershowitz says he plans to produce the recordings of his calls with Boies and call Boies to testify to these conversations at trial. (Dershowitz Decl. at ¶¶ 73-75). According to the preliminary transcript of the call prepared by defense counsel Boies told Dershowitz that he proposed to say to "[W]e have now reviewed the documentary evidence an we are convinced that your belief [that you had relations with Dershowitz] is wrong and we would like to explore with you how you could have come to this conclusion that is wrong." (Declaration of Alan Dershowitz, dated Sept. 25, 2019 ("Dershowitz Sept. 25 2019 Decl.") (Sealed Document Place [dkt. no. 52] ), Ex. A). In connection with allegations that Dershowitz lied when he sat s e conspired with her attorneys at BSF to extort Dershowitz and others. (Compl. ¶ 17 (c)), Dershowitz also says he plans to take the depositions of lawyers in the Firm and call them as trial witnesses. (Dershowitz Decl. at ¶ 75). II. Legal Standard a. Motion to Dismiss To survive a motion to dismiss under Rule 12(bX6), the plaintiff must plead enough facts "to 'state a claim to relief that is plausible on its face.' lqbal, 556 U.S. at 663, 129 S.Ct. 1937 (auoting / *570 Bell Atl. Corp. v. Twombly 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. But a court is not bound to accept as true legal conclusions that are couched as factual allegations. lqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Nor does a complaint suffice if it tenders 'naked asset-hoofs!' devoid of 'further factual enhancement.' " Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). If there are insufficient factual allegations to raise a right to relief above the speculative level, the complaint original U.S. Government Works. 6 EFTA00100690 -. Dershowitz, 410 F.Supp.3d 564 (2019) must be dismissed. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. b. Motion to Disqualify 111 I2IThe authority of federal courts to disqualify counsel "derives from their inherent power to preserve the integrity of the adversary process." Hempstead Video, Inc. v. Inc. Vill. of Valley Stream 409 F.3d 127, 132 (2d Cir. 2005Xintemal quotation marks omitted). In deciding whether to exercise this power, courts must weigh "a client's right freely to choose his counsel against the need to maintain the highest standards of the profession." Id. (internal quotation marks omitted). 131 141 Is]The rules of the American Bar Association and state disciplinary bodies "merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification." Id: see also Bd. of Ed. of City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). Motions to disqualify are viewed with disfavor because of their "vulnerability to abuse as litigation tactics." CQS ABS Master Fund Ltd. v. MBIA Inc. 2013 WL 3270322, at .8 (S.D.N.Y. June 24, 2013). Nevertheless, "any doubt is to be resolved in favor of disqualification." P • Hull v. Celanese Corp. 513 F.2d 568, 571 (2d Cir. 1975). The Court must determine whether the attorney's conduct would "tend[ ] to taint the underlying trial." ti • Nvquist, 590 F.2d at 1246. III. Discussion a. Motion to Dismiss Dershowitz argues that (i) claims are time-barred, and (ii) his statements are protected by the self-defense privilege and therefore not actionable. 1. Statute of Limitations and the Single Publication Rule "11n New York, the statute of limitations for slander and libel is one year. P tJ N.Y. C.P.L.R. 215(3). New York's 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 to argue that the statements he made in late 2018 and early 2019 (facially made within the statute of limitations) are in fact time-barred because they are "substantively identical" to statements he previously made in 2015 (Le,, outside the one year statute of limitations). (Professor Alan Dershowitz Memorandum In Support Of Motion To Dismiss Complaint ("Mot. Dismiss"), dated June 25, 2019 [dkt. no. 23], at 10-11). The Court, however, is not persuaded by this argument, especially in light of the rationale for this common law rule. New York's adoption of the single publication rule came in response to Duke of Brunswick v. Harmer (1849) 117 Eng. Rep. 75; 14 Q. B. 185, in which the plaintiff brought an action based on a defamatory statement made in a newspaper published *571 by the defendant seventeen years earlier. The defendant sold and delivered a copy of the newspaper to the plaintiff's agent seventeen years after publication, and, as the New York Court of Appeals summarized it, the English court held "each delivery to a third person of a defamatory article constituted a new publication of the libel, which in turn gave rise to a new cause of action." t" Gregoire v. G. P. Putnam's Sons 298 N.Y. 119, 122-23, 81 N.E.2d 45 (N.Y. 1948). 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:lid. 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 could form the basis of a defamation claim if the old book were sold today. Id. As Judge Sack explains: The ... rule was applied traditionally to mass publications under which a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of 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 a new form republication of a person's spoken words in a book, or the publication of a hardcover book in softcover format or as a motion picture is a separate publication for which the statute begins to run anew. Robert D. Sack, Sack on Defamation: Libel. Slander, and Related Problems § 2.6.4, Practising Law Institute, (5d ed. 2017X"Sack") (quotations omitted, emphasis added). The single publication rule has been adapted to rblications on the Internet under a similar rationale. 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 Internet, the New York Court of Appeals recognized that one of the rationales for the rule was to prevent "endless retriggering of the statute of limitations." Id. ITIFirth and other cases applying the rule in the Internet context did not hold that once a defendant makes a statement in a prominent place on the Internet, he can proactively repeat that claim in new places on the Internet ad infinitum and remain immune from suit. Republication to a new audience or in a new forum does not come within the single publication rule. Where a defendant takes an affirmative step to republish the defamatory material, he may not find refuge in the single publication rule which is designed to provide repose to inactive or passive defendants. "The justification for [the republication] exception to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience." f 1 Firth 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d 463. The single publication rule was meant to protect the weary, not the wily. 181 PIThe case law distinguishes between those republications that include an "affirmative act" to present the material again and those that are passive.' II *572 Clark v. Viacom Intl Inc. 617 F. App'x 495, 505 (6th Cir. 2015). New York case law requires a defamation plaintiff seeking to avoid the single publication rule to allege "a separate aggregate publication from the original on a different occasion which is not merely a 'delayed circulation of the original edition.' " P a Firth 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d 463 (quoting Rinaldi v. Viking Penguin 52 N.Y. 2d 422, 435, 438 N.Y.S.2d 496, 420 N.E.2d 377 (N.Y. 1981) (actionable republication where publisher made a "conscious and deliberate decision" to publish a paperback version of a previously -published hardcover b k with respect to which plaintiff did not sue).) as alleged exactly that. (Compare Compl. at ¶ Compl. at ¶ 17). Republication of the prior statements has also been found actionable where additional material is added to the prior statements. E.g., !* In re Davis 347 B.R. 607, 612 (W.D. Ky. 2006) (holding that adding "Breaking News!" and "Update!" sections to previously published material constituted an actionable republication). Dershowitz, who has proclaimed his appreciation of chutzpah, Alan Dershowitz, Chutzpah (1992), employs it to advance the argument that his actions are analogous to a passive republication. Surveying the cases shows that this ain't that. Relying on Clark, Dershowitz argues: "[W]here the allegedly defamatory statements have been widely disseminated over the Internet via prominent news organizations with worldwide reach, they have 'already been directed at most of the universe of probable interlocutors' and there is as a matter of law no new audience to reach, and no new cause of action accrues." (Reply Memorandum In Support Of Alan Dershowitz's Motion To Dismiss Complaint ("Def. Dismiss Rep."), dated July 16, 2019 [dkt. no. 40], at 4 citing !' Clark 617 F. App'x. at 506) (emphasis added). Dershowitz's misreading of Clark is evident from the sentences before and after the sentence he quotes. The discussion of "no new audience" was specifically related to "run-of-the-mill hyperlinks, website updates, or interface redesigns." Clark 617 F. App'x at 506. Such passive changes "typically demonstrate neither the intent nor the ability to garner a wider audience than the initial iteration of the online statement could reach." Id. Because Dershowitz did not make only passive changes to a website or the like, he can find no refuge in Clark. His 2018-19 statements are alleged to be "a separate aggregate publication from the original on a different occasion [and] not merely a delayed circulation of the original [statements]." Firth, 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d 461 Compl. 11117, 21, 86, 92, 98). leges that Dershowitz's statements in 2018 and 2019 were an attempt to reach a whole new cohort of who posted his statements to new audiences. pposition papers allege *573 that Dershowitz communicated in 2015 through the Today Show and an op-ed in The Wall Street Journal, (Pl. Disqualify Opp. at 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 Miami Herald, CNN, the NY Daily News, Local 10 News, RawStory.com, Law & Crime, The Crimson, and Vanity Fair. (Compl. Exs. 1.6). As alleged, these are clearly new audiences even if, arguendo Dershowitz made the same statements.= Thus, Dershowitz cannot claim the benefit of the single publication rule. g Firth 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d 463 ("The justification for [the replication exception] to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience.") Dershowitz's invocation of Hoesten v. Best, 34 A.D.3d 143, 821 N.Y.S.2d 40 (N.Y. App. Div. 1st Dep't 2006), is similarly unavailing. In that case, the alleged republication occurred in a private meeting and was "made to three ABC executives who were already intimately familiar with the complaints previously levied against plaintiff." Id. at 151, 821 N.Y.S.2d 40. One of the three executives had already received the prior publication, and the other two executives had known of the activity relating to the allegedly defamatory statement. Id. The court held that even if the larger organization, ABC, was not considered a single audience for republication purposes, the three executives cannot reasonably be seen as a new audience. Id. Given this and the fact that the statement made was "identical" to the prior complaint, the Court found no republication. Id. Analogizing Hoesten to this case is beyond a stretch. The putative "new audience" in Hoesten was comprised of three easily identifiable individuals who were "intimately familiar" with the prior, identical statements, and thus the three executives who heard the defamatory statements could not "reasonably be seen as a new audience." Id. Here, no particularized individuals are identified as comprising either the prior or present audiences, and there is no plausible assertion that all of the myriad unidentified 2018-19 recipients of the statements were familiar with Dershowitz's prior statements from 2015 (other than Dershowitz's novel and unsupported concept that publication "disseminated over the internet via prominent news organizations with worldwide reach" always necessarily means that "as a matter of law [there is] no new audience to reach, and no new cause of action accrues upon their repetition." (Def. Dismiss Rep. at 4).) 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 reputation against the outrageous, knowingly false and defamatory allegation publicly and maliciously leveled against him by the Plaintiff." (Mot. Dismiss at 1). In other words, he admits he took affirmative steps to republish his prior statements to defend himself and his reputation by influencing new audiences or re-influencing old audiences. Said differently, Dershowitz went looking for trouble, and by his repeated affirmative republications, he found it. Finally, it is worth noting that there is no limiting 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 TV seven days a week, 20 channels a day forever and say the same things." (Tr. 4:25, Sept. 24, 2019)) That is because the rationale undergirding the single publication rule is to provide repose to passive defendants while affording plaintiff the possibility of a recovery for affirmative republications. Dershowitz argues that uld have sued Prof. Dershowitz over his denials notwithstanding their truth) within a year of their original publication in 2015." (Def. Dismiss Rep. at 5). But this would also be true for a plaintiff who sues over a softcover edition of a book after having foregone the opportunity to sue over the hardcover, which is exactly what occurred in Rinaldi supra and is perfectly permissible: [A] rebroadcast of a television show, a reprint of a magazine article, or a new edition of a book—even if substantively identical to the initial iteration (such as a paperback edition of a previously published book hse e.g., Rinaldi v. Viking Penguin. Inc. 52 N.Y.2d 422, 438 N.Y.S.2d 496, 420 N.E.2d 377, 382 (1981 )[ ("the bringing out of the paperbacks unquestionably was that of a new edition and, as such, a republication.") ] )—generally will reset the limitations period, because each is produced to garner an audience that the preexisting dissemination of the statement could not reach. See Restatement (Second) of Torts § 577A, cmt. d. 1Clark 617 F. App'x at 505. Dershowitz would have the Court reverse this well-established jurisprudence. The Court declines to do so and instead adheres to established precedent. 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 subject to a qualified privilege because they were made in reply to false charges that gave rise to his right to defend himself. (Mot. Dismiss at 16). New York courts recognize a qualified privilege of reply: "[a] person also has a right to defend himself or herself from charges of unlawful activity .... An individual is privileged to publish defamatory matter in response to an attack upon his or her reputation; the speaker is given more latitude in such a situation than if the statements were not provoked." Sack at § 9.2.1; Reynolds v. Pegler 223 F.2d 429, 433 (2d Cir. 1955); Konikoff v. Prudential Ins. Co. of Am. 1999 WL 688460, at *12 (S.D.N.Y. Sept. 1, 1999), aff'd 1234 F.3d 92 (2d Cir. 2000). Although defendants are not required to "follow Marquis of Queensberry rules" while allowing plaintiffs to "fight freestyle," there are definite limitations to the qualified privilege. *575 R.A.V. v. City of St. Paul, Minn. 505 U.S. 377, 392, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Collier v. Postum Cereal Co. 150 A.D. 169, 178, 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 assailant. Of course, the counter attack must not be unrelated to the charge, but surely the motives of the one making it are pertinent.") Defendant and Plaintiff both cite a Nevada case that laid out a standard for forfeiting the qualified privilege: "The privilege may be lost ... if the reply: (1) includes substantial defamatory matter that is irrelevant or non-responsive to the initial statement; (2) includes substantial defamatory material that is disproportionate to the initial statement; (3) is excessively publicized; or (4) is made with malice in the sense of actual spite or ill will." State v. Eighth Judicial Dist. Court ex rel. County of Clark, 118 Nev. 140, 42 P.3d 233, 239 (2002). In a case related to this one, the Court's dear departed colleague, Judge Robert W. Sweet, held that because the qualified privilege of reply is an affirmative defense that a plaintiff has a right to rebut, it is not appropriate for resolution on a motion to dismis Maxwell 165 F. Supp. 3d 147, 155 (S.D.N. . e Court of Appeals has said that if "the defendant's reply was made in bad faith ... the defense fails" and that "[i]t is the function of the jury to pass upon the question of whether or not defendant published the alleged defamatory matter in good faith, as this is a subject on which reasonable men may differ." Reynolds v. Pegler 223 F.2d at 433. In M. MtucwelMas she does here, alleged that defendant Ghislaine Maxwell's statements in that case were made "with malice and knowledge of their falsity." 165 F. Supp. 3d at 155. This was a sufficient pleading to defeat a qualified privilege defense at the motion to dismiss stage. Id. Dershowitz attempts to distinguish Maxwell on the grounds that (1) Dershowitz is a public figure who thus should be afforded more "latitude" to respond to an attack and (2) the court in Maxwell applied the wrong standard of malice. First, on the greater latitude argument, Dershowitz's citations to [ g Gertz v. Robert Welch. Inc. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and PI New York Times Co. v. Sullivan 376 U.S. 254, 305, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) are unavailing. Dershowitz argues that because as a public figure he would have a higher burden if he were suing for defamation, he should be afforded more latitude in responding when others allegedly defame him. In Sullivan Justice Goldberg illuminated some of the concerns the Court was targeting, writing, "[T]he Constitution accords citizens and press an unconditional freedom to criticize official conduct." II 4 Sullivan 376 U.S. at 305, 84 S.Ct. 710 (Goldberg, J., concurring). What animated the Court and Justice Goldberg in Sullivan were concerns about the need to protect discussion of "public issues" and "official conduct," not a public figure's right to respond. Gertz explains that "[T]he state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to [public persons]." P ¶ Gertz, 418 U.S. at 343, 94 S.Ct. 2997. These cases do not address and certainly do not establish that public figures somehow have an enhanced right to defame. Second, Dershowitz argues that the court in Maxwell applied the wrong standard for d e self-defense privilege, i.e., it misstated what must plead in order to preclude Dershowitz from availing himself of the self-defense privilege. (Del. Dismiss Rep. at 9). Dershowitz argues that "the self-defense privilege *576 is only forfeited by a reply that is excessive in scope or content, or which is motivated solely by ill will or spite." (Id. at 10) (emphasis added). In other words, he argues that was required to plead that Dershowitz was motivated solely by ill will or spite and that because she did not, this motion can be granted on the face of the Complaint. However, the court in Maxwell held that either common 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; cf. Liberman v. Gelstein 80 N.Y.2d 429, 438, 590 N.Y.S.2d 857, 605 N.E.2d 344 (N.Y. 1992). The New York Court of Appeals has defined constitutional malice as "knowledge of falsity or reckless disregard for truth or falsity," Liberman 80 N.Y.2d at 434, 590 N.Y.S.2d 857, 605 N.E.2d 344, an' most assuredly has pleaded that. (E.g., Compl. at ¶ 15, 17, 47-52).4 IIIIDershowitz, however, argues that the self-defense privilege is unique and only a showing of "ill will or spite" can properly defeat it. (Def. Dismiss Rep. at 9). Dershowitz cites no binding authority that would impel the Court to limit the holding of the New York Court of Appeals in Liberman v. Gelstein 80 N.Y.2d at 434, 590 N.Y.S.2d 857, 605 N.E.2d 344, in this way. Instead of citing a case, Dershowitz invokes "common sense," arguing that "[w]ere the self-defense privilege to be defeated by an allegation of knowing falsity or reckless disregard for the truth, it would be no privilege at all." (Del Dismiss Rep. at 10). Whatever he means by this formulation, it does not trump the New York Court of . The Court agrees with Judge Sweet's holding in v. Maxwell that either constitutional malice or law malice can defeat the self-defense privilege, Maxwell, 165 F. Supp. 3d at 155, and the question of "good faith" regarding an assertion of that qualified privilege is to be proven at a later stage, Reynolds, 223 F.2d at 433.5 Dershowitz invokes a nightmare scenario where courts encourage defamation suits by false accusers and "First 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 either." (Mot. Dismiss at 21). While as a matter of ultimate law this may well be correct, that Dcrshowitz was always free to sue if he felt aggrieved by what he views as her false and defamatory statements about him. But the Federal Rules of Civil Procedure require Dershowitz, at the motion to dismiss stage, to satisfy different requirements from those applied to Plaintiff. The putative "unfairness" Dershowitz complains of applies to any civil action-plaintiffs can put their allegations out to the world and must only plead them, not prove them, at the motion to dismiss stage. The question the Court must address is whether they are sufficient, not whether they are true. If the Court's decision somehow encourages defamation suits, then Dershowitz's quarrel properly is with the Federal Rules of Civil Procedure which "represented a major break from the common law and code systems." Arthur R. Miller From Conley to Twombly to lqbal: A Double Play on the Federal Rules of Civil Procedure 60 Duke L.J. I, 3.5 (2010) (Explaining that the drafters of the Federal Rules "reshaped civil litigation to reflect core values of citizen access to the justice system and adjudication on the merits based on a full disclosure of relevant information."); see P.' Dioguardi v. Duming, 139 F.2d 774 (2d Cir. 1944). II21Therefore, the Court adopts the reasoning of Maxwell. as repeatedly pled that Dershowitz's statements were made with malice and knowledge of their falsity. (Compl. at 11 15-17, 47-52). Specifically, pled that she was "forced to have sex wit hran Dershowitz." (LL at ¶ 36). Taking this fact to be true, as the Court must, it is a logical conclusion that a false denial of this charge was necessarily made with knowledge of falsity; Dershowitz could not have had sex with • falsely denied that fact without knowing that what he was saying was Maxwell, 165 F. Supp. 3d at 155-56. If at tri ils to prove that she was "forced to have sex with Alan Dershowitz" or if Dershowitz proves that he did not have sex with her at all, then the truth or falsity of his statements will be established, and if they are true his lack of knowledge of falsity will be established, b tion of this issue will await a jury. For now, as pled sufficient facts to defeat the qualified self-defense privilege. Accordingly, the motion to dismiss is denied. b. Motion to Disqualify Dershowitz argues the Firm should be disqualified for two independent reasons. First, based on a conflict of interest (Memorandum Of Law In Support Of Alan Dershowitz's Motion To Disqualify ("Def. Disqualify Mot."), dated June 7, 2019 [dkt. no. 8], at 16) and, second, based on the advocate-witness rule, (a at 26). On conflict of interest, Dershowitz argues that he was a former client of the Firm, he provided the Firm with confidential information, and the Firm is now adverse to him in a substantially related litigation. (lia at 16). Dershowitz argues that Sires' conflicts should be imputed to the Finn. (a at 25). The Firm argues that Dershowitz 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. On the advocate-witness rule, Dershowitz argues that Boles and other Firm lawyers who represer are necessary witnesses on substantial issues in this action. (a. at 12). The credibility of these advocate-witnesses may have to be challenged by other members of the Firm who *578 "will not have the necessary independence." (a at 13). He argues that the rule should not only disqualify Boles, McCawley, and other relevant lawyers but also the entire firm based on imputation. (a. at 26). Because disqualification is so clearly required under the 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 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 within eight weeks of the filing thereof. 1. Advocate-Witness Rule "31The advocate-witness rule prohibits an attorney from representing a party where the attorney will be called as a witness. Rizzuto v. De Blasio 2019 WL 1433067, at *3 (E.D.N.Y. Mar. 29, 2019); N.Y. R. Prof I Conduct § 3.7. Rule 3.7 of the New York Rules of Professional Conduct states: a) A lawyer shall not act as advocate before a 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 tribunal in a matter if: (I) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; N.Y. R. Prof I Conduct § 3.7. "MC rule differentiates between an attorney who will be called on behalf of his client and an attorney who will be called as a witness other than on behalf of his client. Id. "In order to disqualify an attorney based on the advocate-witness rule, 'a party must demonstrate that the testimony is both necessary and substantially likely to be prejudicial.' " Prout v. Vladeck 316 F. Supp. 3d 784, 809 (S.D.N.Y.), reconsideration denied, 319 F. Supp. 3d 741 (S.D.N.Y. 2018) (gtstgi !I Decker v. Nagel Rice LLC 716 F. Supp. 2d 228, 232 (S.D.N.Y. 2010)). I16IA lawyer may also not act as an advocate where "another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client." Murray v. Metropolitan Life Ins. Co., 583 F.3d 173. 178 (2d Cir. 2009) (gt N.Y. R. Profl Conduct § 3.7(b)(1)). The Court of Appeals has noted, though, that this rule "lends itself to opportunistic abuse." Id. Ilene Court of Appeals explained that Rule 3.7(a) is designed to alleviate the risks that: