[00:00:00] Speaker 02: We'll start with 24-1061, Vivo Therapeutics versus Orthotain. [00:00:12] Speaker 02: Mr. Neff. [00:00:16] Speaker 03: Good morning, Your Honors. [00:00:16] Speaker 03: May it please the Court? [00:00:18] Speaker 03: Nathan Neff on behalf of the Appellate Council. [00:00:22] Speaker 03: With me today is Leslie Stevens, the CEO of Orthotain. [00:00:38] Speaker 03: Just recently, the Colorado Supreme Court formally adopted Section 586 of the Restatement of Tort Second in the case of Kilmer Lane and Newman versus BKP, Inc., a case decided in 2023. [00:00:51] Speaker 03: And then they said that an attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or in the institution of or during the course of and as a part of [00:01:06] Speaker 03: a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. [00:01:12] Speaker 03: The Colorado appellate court just recently in 2024, in the case of Kremer versus Donald J. Trump, says that as an absolute privilege, it provides absolute immunity to the speaker, even if the statements are false, defamatory, and made with actual malice. [00:01:31] Speaker 02: Before you get to recent Colorado cases, have you read the [00:01:35] Speaker 02: March 4th opinion from this court in Furice versus Colorado Tech College University? [00:01:43] Speaker 02: I have not, Your Honor. [00:01:44] Speaker 02: I'm sorry. [00:01:45] Speaker 02: Well, what it says, and it's right, is that collateral order doctrine is quite limited. [00:01:55] Speaker 02: And it did not allow an interlocutory appeal in that case under that order. [00:02:03] Speaker 02: And that's what you're doing. [00:02:05] Speaker 02: trying to do here. [00:02:09] Speaker 02: Before we can get to the merits, we need to resolve whether we can hear the case. [00:02:15] Speaker 02: That doesn't mean you lose on the merits. [00:02:16] Speaker 02: It just means you have to proceed in district court and then appeal at the end. [00:02:23] Speaker 02: There are a couple questions about the application to Colorado of the collateral order doctrine. [00:02:32] Speaker 02: One is whether it even applies to a claim of absolute immunity for litigation statements. [00:02:39] Speaker 02: We have precedent on that, but there's been more recent Supreme Court decision that throws cold water on it, I think. [00:02:48] Speaker 02: But even if that's not the case, we indicated this in the prior appeal. [00:02:55] Speaker 02: that it's got to be a pure matter of law before us, before we're going to hear a collateral order case. [00:03:03] Speaker 02: And here, and we don't second guess the district court's fact finding. [00:03:09] Speaker 02: So if this were, say, a qualified immunity interlocutory appeal, if the judge found some facts or didn't find some facts that are necessary for the legal issue to be resolved, we don't have jurisdiction to review it. [00:03:25] Speaker 02: I talked a lot. [00:03:26] Speaker 02: Why don't you respond to what I've been saying? [00:03:30] Speaker 03: Well, I'm familiar with the Will case and I'm familiar with the Cohen case that birthed the collateral order doctrine. [00:03:36] Speaker 03: And every case from the Supreme Court that I have read and that we cited in our brief says claims of absolute immunity are subject to immediate appeal under Section 1291, absolute immunity. [00:03:48] Speaker 02: They've never said that with respect to a case between private parties. [00:03:52] Speaker 02: And their most recent statements about collateral reduction require an important public interest, which is not present here. [00:04:03] Speaker 02: But why don't you address, you have a 10th Circuit precedent on your side, but that's before the most recent collateral decision by the Supreme Court, but still with respect to the factual component. [00:04:17] Speaker 02: How do you respond to that? [00:04:21] Speaker 02: Because the judge said, I cannot tell what the facts are, whether there was good faith based on the complaint, which is, I think, a pretty black-letter statement. [00:04:31] Speaker 02: How do you get around that? [00:04:35] Speaker 03: I believe what the judge said is that he was going to decline to dive into the fact-finding endeavor. [00:04:41] Speaker 03: Because you can't. [00:04:42] Speaker 02: You can't on a complaint where you have no credibility determinations. [00:04:48] Speaker 02: You can't look at the [00:04:51] Speaker 02: response from the other side to see who's telling the truth at that stage. [00:04:55] Speaker 03: I agree. [00:04:55] Speaker 03: This question of law is not based upon a credibility determination. [00:05:00] Speaker 03: It's not based upon the motive of the speaker. [00:05:03] Speaker 02: I thought good faith was required. [00:05:07] Speaker 03: I thought that's what the judge said. [00:05:09] Speaker 03: I can't determine whether these statements were made in good faith. [00:05:13] Speaker 03: But he said it was going to decline to dive into the fact-finding endeavor. [00:05:17] Speaker 03: The record is ample. [00:05:19] Speaker 03: It's right there. [00:05:20] Speaker 03: in front of the court. [00:05:21] Speaker 01: I mean, I have a variation on that question. [00:05:24] Speaker 01: What undisputed facts would allow us to determine, as a matter of law, that there was good faith in this case? [00:05:32] Speaker 01: Oh, absolutely. [00:05:33] Speaker 01: Because I think we're stuck with, I'm going to call it ortho on that question. [00:05:38] Speaker 01: And I think your burden is to persuade us that, as a matter of law, good faith here, and setting aside the collateral order argument. [00:05:46] Speaker 03: What you're really referring to is a comment to the restatement that the policymakers behind it didn't want lawyers prior to initiating suit to defame people when they didn't have any actual real intention of ever pursuing a litigation. [00:06:02] Speaker 01: No, I know that. [00:06:03] Speaker 01: I understand the policy. [00:06:04] Speaker 01: I want to know how we can decide on the complaint. [00:06:07] Speaker 01: Sure. [00:06:07] Speaker 01: Because the motion is at the dismiss stage, right? [00:06:09] Speaker 01: So as a matter of law, it's undisputed that there's good faith here and we can get to the point. [00:06:15] Speaker 03: to at least two of letters that I authored that are supposed to be considered on their own merits. [00:06:21] Speaker 03: You don't take the pleaders' statements and interpretation of them. [00:06:26] Speaker 03: And if there's a conflict between the exhibits and the pleading, the exhibit controls. [00:06:30] Speaker 03: We cited this in the brief. [00:06:31] Speaker 03: Two of the exhibits in their complaint at law are my letters, letters from me to a different attorney, from one attorney to a different attorney, attaching a draft complaint at law. [00:06:42] Speaker 03: Now, I don't know how it is that the district court could have assessed [00:06:46] Speaker 03: The complaint, just the complaint, putting aside what we attached to our motion to dismiss pursuant to authority from this court. [00:06:52] Speaker 03: Just looking at the complaint, you would have seen that they say, the basis for their cause of action is statements made by an attorney to another attorney, right then and there. [00:07:02] Speaker 03: But what evidence of a good faith is there? [00:07:04] Speaker 03: It starts with, it's all here in the record. [00:07:07] Speaker 03: We'll start with Ms. [00:07:08] Speaker 03: Stevens' letter. [00:07:10] Speaker 03: It's in the record at 38. [00:07:11] Speaker 03: This references orthotain's awareness of specific conduct. [00:07:15] Speaker 03: She cites the three specific VIVO continuing education seminars. [00:07:23] Speaker 03: There's one that's called Wellness Summit by Dr. Ben Meraglia. [00:07:26] Speaker 03: There's another called Learn the VIVO System by Dr. Brian Kraft on specific dates. [00:07:31] Speaker 03: She indicated that Dr. Kraft was under contract, that we had not, that OrthoTen had not released Dr. Kraft from it. [00:07:38] Speaker 03: And she cited to the Lanham Act itself. [00:07:41] Speaker 03: Okay? [00:07:42] Speaker 03: And I would marry that with the admonition from the Fifth Circuit and Coastal States marketing versus Hunt. [00:07:48] Speaker 03: The litigator should not be protected only when he strikes without warning. [00:07:52] Speaker 03: If litigation is in good faith, a token of that sincerity is a warning that it will be commenced in a possible effort to compromise the dispute. [00:08:01] Speaker 03: If you look in the record at 127 through 134, you'll find a copy of orthotain's April 2018 contract with Dr. Kraft. [00:08:10] Speaker 03: It's in the record. [00:08:11] Speaker 03: This is the good faith basis for engaging Benco in the first place. [00:08:16] Speaker 03: If you look 135 through 141, we have the non-disclosure agreement with Vivo founder Kirk Huntsman in the record showing that we have a prior relationship. [00:08:27] Speaker 03: 320 through 339, we have orthotanes business records. [00:08:32] Speaker 03: This is the children. [00:08:35] Speaker 03: The children that were treated with orthotane appliances [00:08:42] Speaker 03: We have all of their order of appliance records right here. [00:08:45] Speaker 03: There's six of them, six specific children, Isaac, Ali, Eva, Ella, Matthew, and Nicholas. [00:08:53] Speaker 03: Ortho chain appliances treated all of these kids years before Bevos was ever even formed. [00:08:58] Speaker 03: This is all in the complaint. [00:08:59] Speaker 03: This is all in, no, this was attached to our motion to dismiss. [00:09:03] Speaker 03: What's got to be in the complaint, doesn't it? [00:09:04] Speaker 03: No, sir. [00:09:05] Speaker 03: The 10th Circuit precedent allows when someone makes a general reference to documents that the claim is dependent upon, but they don't attach it, [00:09:12] Speaker 03: Tent Circular Press now allows a motion to dismiss to attach those undisputed documents to clarify the court. [00:09:18] Speaker 03: We were familiar with our spring of 2020 communications. [00:09:21] Speaker 03: We didn't do anything on mouthful. [00:09:23] Speaker 03: We engaged another person to pursue a legal claim. [00:09:26] Speaker 03: So we were happy to just put them right before the court so the matter could be determined early on. [00:09:31] Speaker 03: And if you look at these documents that show orthotain appliances treated these kids, and you compare them with what is also in the record, which is this advertisement, [00:09:41] Speaker 03: that said the VEVO system was going to be on February the 7th of 2020. [00:09:46] Speaker 03: And then these photographs showing Dr. Kraft presenting the same six kids that were treated with orthotain appliances right here. [00:09:53] Speaker 03: And there's a big name VEVO superimposed across every one of these pictures to create the false impression that VEVO was responsible for the favorable outcomes achieved here. [00:10:07] Speaker 02: Let me back up a minute. [00:10:11] Speaker 02: You may be absolutely right that the evidence should have required the district court to make a finding one way or the other. [00:10:20] Speaker 02: That's not something we can review under a collateral order doctrine. [00:10:25] Speaker 02: This comes before us much more often in qualified immunity context. [00:10:32] Speaker 02: And the Supreme Court's made it clear in that context. [00:10:36] Speaker 02: And we have indicated, well, in our prior decision in this case, [00:10:41] Speaker 02: that we would apply the same standard for this immunity question, that we do not sit here to say you should have granted summary judgment or whatever based on the facts. [00:10:55] Speaker 02: You made a mistake in your review of the facts. [00:10:58] Speaker 02: That's not something we can review. [00:11:00] Speaker 03: I understand that. [00:11:01] Speaker 03: You asked what evidence was there in the record for good faith, serious contemplation of litigation, and I'm laying it out for you. [00:11:06] Speaker 03: This is what we had before this letter ever goes out. [00:11:09] Speaker 02: Now I'm asking the jurisdictional question. [00:11:12] Speaker 02: Sure. [00:11:13] Speaker 02: Why can we review and say, Judge, there was plenty of evidence here of good faith. [00:11:20] Speaker 02: In fact, it was indisputable. [00:11:22] Speaker 02: You should have found that there was good faith. [00:11:24] Speaker 03: The reason you can review this particular case is because it falls within that narrow class of cases that includes denials of substantial claims of absolute immunity. [00:11:34] Speaker 03: There's not a subspecies of absolute immunity that's only applicable to maybe a public official, [00:11:39] Speaker 03: not a private party. [00:11:41] Speaker 03: It's not like one gets the benefit of interlocutory appeal under 1291 because they're a public official. [00:11:46] Speaker 02: Yes, well, you may say that, but I think you're probably wrong. [00:11:50] Speaker 02: So, I mean, do you have a case involving private parties? [00:11:55] Speaker 02: Sure. [00:11:56] Speaker 02: We cited two in the briefs. [00:11:57] Speaker 02: You don't know, after the Supreme Court decision? [00:11:59] Speaker 02: Yes. [00:12:00] Speaker 02: That talks about there's a public interest involved? [00:12:03] Speaker 02: Yes. [00:12:04] Speaker 02: You're familiar with the test for collateral order review. [00:12:07] Speaker 02: that there's got to be a substantial public interest? [00:12:09] Speaker 02: Yes. [00:12:10] Speaker 02: You are? [00:12:10] Speaker 02: I am, sir. [00:12:11] Speaker 02: What's the substantial public interest? [00:12:13] Speaker 03: A variety of them. [00:12:14] Speaker 03: Access to government, integrity of the system, access to counsel, first going to write a petition. [00:12:21] Speaker 03: You might want to look at our opinion from earlier this month and see if it fits that. [00:12:27] Speaker 03: Well, I can tell you that we also have Fifth Circuit. [00:12:30] Speaker 03: We cite both those cases, Bunkpass and Shanks. [00:12:32] Speaker 03: They both came up in the context of the litigation privilege. [00:12:36] Speaker 03: And granted introductory bill under 1291, beside both of those cases in our supplementary. [00:12:41] Speaker 03: There's authority. [00:12:43] Speaker 03: The question is whether it's good anymore. [00:12:45] Speaker 02: But even if it is, are you disputing that if there's a factual issue on which the district court made an error, that we can review that? [00:13:02] Speaker 02: Because what you're saying essentially, as I'm understanding it now, is there was all this indisputable evidence of good faith, yet the district court didn't find good faith. [00:13:12] Speaker 02: That's not the sort of thing that can be viewed on collateral order doctrine. [00:13:18] Speaker 03: The district court did not look at the documents. [00:13:23] Speaker 03: There is a tradition. [00:13:28] Speaker 03: There is a tradition that instructs that opinions must not only provide the rationale for the result, but must also summarize the losing party's arguments, because losing party's arguments are likely to rely upon prior decisions that are inconsistent. [00:13:44] Speaker 03: In this situation, we cited all of this, all of these documents in our briefs to the district court, as well as our complaint at law. [00:13:56] Speaker 03: A couple of things, if I put on the... [00:13:58] Speaker 03: The Will Front, even Vivos in their brief says they're not aware of Will abrogating any doctrine. [00:14:08] Speaker 03: Even my opponents here didn't say that Will abrogated the doctrine. [00:14:13] Speaker 03: In this situation, we then also have a complaint at law. [00:14:17] Speaker 03: This complaint at law is patently not frivolous. [00:14:20] Speaker 03: We know it's not frivolous. [00:14:22] Speaker 03: It was filed. [00:14:23] Speaker 03: Vivos knows it's not frivolous. [00:14:25] Speaker 03: They never filed a Rule 11 motion. [00:14:27] Speaker 03: It survived. [00:14:28] Speaker 03: Rule 12b6, motions to dismiss. [00:14:31] Speaker 03: The complaint at law is, and it was at all times, well grounded in law and fact. [00:14:36] Speaker 03: That combination with the fact that I sent a draft complaint that has the same allegations, my retention, the whole time I'm doing it, from April to June, all I'm doing is advocating. [00:14:48] Speaker 03: I'm providing contracts, photographs, videos, proof that we have a non-compete clause, proof that these are our [00:14:58] Speaker 03: Orthotain and treat the children. [00:14:59] Speaker 03: We're trying to substantiate our claim that we're settlement conferences. [00:15:02] Speaker 03: We're trying to get a corrective order. [00:15:04] Speaker 02: A draft complaint told by... The time has expired. [00:15:07] Speaker 02: But what I'm saying, it's nothing to do with the merits of your privilege argument. [00:15:14] Speaker 02: It's whether this court can hear that issue at this point in the proceedings, just so you're clear about that. [00:15:21] Speaker 03: I do understand. [00:15:22] Speaker 03: I hope I answered the question, and you can. [00:15:24] Speaker 03: It's an absolute immunity defense. [00:15:26] Speaker 03: Thank you for your time. [00:15:27] Speaker 03: I appreciate it. [00:15:39] Speaker 00: May it please the court, counsel? [00:15:42] Speaker 00: My name is Brenna Fisher, arguing on behalf of Appellee Vivos Therapeutics. [00:15:47] Speaker 00: Judge Hartz, I'd like to circle back to what your last point was, and you're absolutely right. [00:15:51] Speaker 00: The merits of this case are not at issue right now. [00:15:54] Speaker 00: This court does not have appellate jurisdiction to hear this claim. [00:15:59] Speaker 00: This court recognized in its opinion not two weeks ago in Universal Technical Institute that there is a category of claims that are allowed to be heard [00:16:08] Speaker 00: on collateral order jurisdiction regarding absolute immunity. [00:16:13] Speaker 00: But the court must look at the entire category to which the claim belongs. [00:16:17] Speaker 00: And the court is not concerned with the mere avoidance of trial for any absolute immunity or litigation privilege claim. [00:16:24] Speaker 00: The court is concerned with, quote, avoidance of a trial that would imperil a substantial public interest that counts when asking whether an order is effectively unreviewable under the cone factors. [00:16:38] Speaker 00: The collateral order doctrine on its face requires that for a non-final order to be immediately appealable, it must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from the final judgment. [00:16:54] Speaker 00: Even if this court chooses not to reach the absolute immunity issue here, we don't believe that this appeal has even met the three basic tenets of the collateral order doctrine. [00:17:04] Speaker 00: The district court's order here was not final. [00:17:07] Speaker 00: The district court left open the possibility that immunity may apply later on based on facts that come through in discovery. [00:17:13] Speaker 00: The district court's order here was not separate from the merits of the action. [00:17:17] Speaker 00: Defamatory statements are at the center of this dispute, as are counsel's good faith in making those statements. [00:17:22] Speaker 00: That's a factual issue. [00:17:24] Speaker 00: And finally, the district court's order here is not separate from the merits of the action. [00:17:29] Speaker 00: Oh, excuse me. [00:17:30] Speaker 00: It says district court's order is not effectively unreviewable. [00:17:33] Speaker 00: The district court will assess factual issues as they arise on the litigation privilege, and this court will have the opportunity to review the district court's factual findings on appeal once litigation has fully concluded in the district court. [00:17:46] Speaker 00: In its order, the district court only said that it wasn't going to rule at this time on the litigation privilege issue. [00:17:54] Speaker 00: Turning to the absolute immunity at issue, we don't believe there is any legal support for the extreme relief that appellant is seeking. [00:18:01] Speaker 00: No case cited by appellant has ever found that a dispute between two private parties rises to the level of absolute immunity. [00:18:09] Speaker 00: And playing out the scenario that appellant requests, appellant would have the district court make a factual finding on litigation privilege requiring a mini trial on that specific issue before a trial on the merits. [00:18:20] Speaker 01: Sometimes in the qualified immunity context, [00:18:24] Speaker 01: You know, granted, we defer to the district court's fact-finding or determination that facts are necessary, but sometimes the record is irrefutable basically as a matter of law. [00:18:36] Speaker 01: There's no disputed facts about an issue. [00:18:40] Speaker 01: And, you know, I understand that that's basically Mr. Neff's argument here. [00:18:45] Speaker 01: Is there really a true disputed fact about the good faith interaction between the parties? [00:18:51] Speaker 00: Yes, we do believe there are cases where there is no dispute in the record and can be determined at this stage whether or not there's a dispute of facts. [00:19:00] Speaker 00: Here, we do believe there's an issue of good faith. [00:19:02] Speaker 00: What is it? [00:19:03] Speaker 00: Appellant was saying, I'm privileged to defame in letters sent before litigation. [00:19:08] Speaker 00: This is not an issue where an appellant was making statements in court pleadings, which is what the litigation privilege was meant to protect. [00:19:14] Speaker 00: This is a statement where he was sending letters before formal litigation had commenced. [00:19:18] Speaker 01: Don't the cases cover pre-litigation conduct? [00:19:21] Speaker 00: Not in the litigation for attorney client litigation privilege. [00:19:28] Speaker 00: There are cases where it can cover litigation privilege, but we believe that would be a disputed fact in this case, whether or not his statements were made in good faith pre-litigation. [00:19:38] Speaker 00: We don't believe that there's enough on the record at this point for the district court to determine whether litigation privilege applies. [00:19:43] Speaker 02: What are the elements of this good faith that we're talking about? [00:19:46] Speaker 02: Good faith about what? [00:19:48] Speaker 00: good faith about making the statements that were considered defamatory by the attorney, whether those statements were made in good faith or not. [00:19:58] Speaker 02: Well, is it in good faith attempt to resolve possible litigation? [00:20:04] Speaker 02: Is it just whether they believed it? [00:20:09] Speaker 02: Is that the only issue regarding good faith? [00:20:11] Speaker 02: Or does it have something to do with the reason why you're making the statement? [00:20:15] Speaker 00: Yes, that's exactly right. [00:20:17] Speaker 00: It's that you're making the statements in anticipation or during the course of litigation. [00:20:22] Speaker 00: The letters that issue here were appellant saying, we're privileged to defame, and then listing off defamatory statements. [00:20:29] Speaker 00: And that's what the issue is here. [00:20:31] Speaker 00: And that's what the district court deferred ruling on. [00:20:33] Speaker 02: When you said we're privileged to defame, presumably he said, because of the litigation privilege, and we're going to sue you. [00:20:44] Speaker 00: It was not quite that clear cut, but yes, I mean, in his mind, it could have been in the anticipation of litigation, but we don't believe we believe that that's a fact issue for the district court to decide at the first instance. [00:21:01] Speaker 00: Appellant is trying to make this court into the fact finder of that issue on appeal, and we believe that the district court should have the opportunity to rule on it first before it comes before this case. [00:21:10] Speaker 02: Well, that's true for the case, but as Judge Timkovich pointed out... I'm sorry. [00:21:14] Speaker 02: That's the general rule, but as Judge Timkovich pointed out, there's got to be a real dispute of fact. [00:21:20] Speaker 02: We will review what would ordinarily be a factual determination by the district court if the record is so clear that we can resolve the factual issue. [00:21:32] Speaker 00: Even if there is a dispute of fact, I'd like to circle back. [00:21:36] Speaker 02: You don't want to pursue that? [00:21:38] Speaker 02: I think it's important that you address whether it really is some question about the attorney's good faith. [00:21:48] Speaker 02: Wasn't it clear that there was going to be litigation, or was it? [00:21:51] Speaker 00: We don't believe that it was clear, no, at that point. [00:21:53] Speaker 00: At that point, it was just two companies sending letters back and forth discussing allegedly defamatory conduct. [00:22:01] Speaker 02: How much later, how long after those letters was the litigation commenced? [00:22:08] Speaker 00: Your Honor, I'd need to pull it up if you want me to give it a minute. [00:22:12] Speaker 00: But I believe it was about six months to eight months afterwards. [00:22:17] Speaker 01: But it's been a long time since I've been a real lawyer. [00:22:20] Speaker 01: But I remember writing letters pre-litigation with plausible claims and an effort to settle before. [00:22:30] Speaker 01: the judicial process. [00:22:31] Speaker 01: And I'm just trying to see what the fact finding here is going to look like. [00:22:37] Speaker 01: Are you going to depose Mr. Naff? [00:22:39] Speaker 01: I'm sure you can depose the CEO, but is the lawyer going to get deposed? [00:22:44] Speaker 01: And you get discovery against his communication with his clients? [00:22:49] Speaker 01: Because maybe there's a smoking gun. [00:22:51] Speaker 01: We have a frivolous claim, but we're going to do the same. [00:22:54] Speaker 01: What's this fact finding going to consist of? [00:22:58] Speaker 00: I think our next steps would be to move forward. [00:23:01] Speaker 00: We would plan to depose Mr. Neff because his statements are directly at issue and we would address those privilege issues with the court at the time. [00:23:09] Speaker 00: We are interested in determining whether or not he made those statements. [00:23:13] Speaker 00: Again, spouting out, I'm privileged to defame, as you mentioned, you've written litigation, or excuse me, demand letters. [00:23:20] Speaker 00: That kind of language usually doesn't come in a demand letter from an attorney. [00:23:24] Speaker 00: They're not usually using it as a sword saying they are privileged to defame, and then coming here and saying, no, no, no, we can't be held liable. [00:23:33] Speaker 00: The district court shouldn't even be able to question that we use this language in letters. [00:23:40] Speaker 02: When you said we're privileged to defame and these are the things we've said or we're saying, was that used outside of the litigation context in any way? [00:23:49] Speaker 02: There were those statements in the letter publicized in some way outside of the litigation? [00:23:56] Speaker 00: No, they were sent between the parties. [00:23:59] Speaker 02: OK, and that wasn't released in any... I would think maybe you'd have a claim of bad faith. [00:24:06] Speaker 02: I don't know that you would. [00:24:08] Speaker 02: the attorney, knowing he has the privilege to say this in the letter to the opposing counsel, writes defamatory material and then publicizes this dispute and those allegations. [00:24:19] Speaker 02: But that's not what happened here. [00:24:21] Speaker 02: No, Your Honor. [00:24:21] Speaker 00: It was not published outside, but his client was working to push this defamatory material. [00:24:30] Speaker 00: And when our client asked them to cease, he said, you know, I'm privileged to defame. [00:24:35] Speaker 00: I don't have to listen to you. [00:24:36] Speaker 00: I don't have to stop. [00:24:37] Speaker 00: And that's not how the litigation privilege is intended to work. [00:24:41] Speaker 01: Well, I guess the privilege, whether it's an immunity or an affirmative defense, has existed for, what, in the common law for hundreds of years. [00:24:51] Speaker 01: It's embodied in the recent. [00:24:53] Speaker 01: I mean, is there not any case law that would help answer my question of how the good faith issue was resolved? [00:25:02] Speaker 00: Your Honor, I don't have that on hand. [00:25:04] Speaker 01: I'd love to see a case where the good faith [00:25:06] Speaker 01: an appellate court says the district court should cross-examine, you know, there should be a mini trial with the lawyers and their clients getting on the stand and talking about their conduct. [00:25:17] Speaker 00: Well, Your Honor, it's not been said in quite those terms, but Colorado appellate courts have consistently evaluated the issue of litigation privilege at the summary's judgment stage, which indicates that there needs to be factual findings on the record. [00:25:29] Speaker 00: And the district court evaluates those factual findings as a whole when it has the benefits of a developed factual record. [00:25:35] Speaker 00: not here at a premature motion to dismiss. [00:25:37] Speaker 01: Whose burden is it to show good faith? [00:25:41] Speaker 01: Is it the person asserting the immunity, or is it you resisting the immunity? [00:25:48] Speaker 00: We believe that it would be appellant's burden if he's claiming litigation privilege to show that his statements were made in good faith. [00:25:54] Speaker 02: So this started because your client claimed the opposing party had defamed it. [00:26:00] Speaker 02: Is that right? [00:26:01] Speaker 02: Yes. [00:26:02] Speaker 02: So there were statements before, but they're not claiming [00:26:04] Speaker 02: litigation privilege with respect to those statements before the letters, are they? [00:26:09] Speaker 02: Are they claiming that those prior statements were made in anticipation of litigation? [00:26:13] Speaker 00: No, Your Honor. [00:26:13] Speaker 00: It's starting with the letters. [00:26:16] Speaker 02: So this would not resolve the case. [00:26:19] Speaker 02: It would just keep out some of the evidence. [00:26:21] Speaker 00: Exactly, Your Honor. [00:26:22] Speaker 00: I think that's an important point here is that [00:26:24] Speaker 00: No matter what this court decides, this case is going back for full litigation in the district court. [00:26:29] Speaker 00: It kicks out some of the evidence, but it doesn't kick out any of the substantive claims or any large part of what we're about to litigate. [00:26:39] Speaker 00: And again, I'd just like to make the final point. [00:26:41] Speaker 00: We do not believe that this court has jurisdiction. [00:26:43] Speaker 00: We believe that litigation privilege under Colorado law, based on the practical way the Colorado courts have been treating litigation privilege, is a defense to liability. [00:26:52] Speaker 00: We believe that the district court should be allowed to determine whether litigation applies here and whether there was good faith with a developed factual record. [00:26:59] Speaker 00: And as the district court said, it would defer that ruling for a later time. [00:27:05] Speaker 00: As this court noted two weeks ago in the Colorado Technical University opinion, there needs to be a substantial public interest at stake for this court to take on the collateral order doctrine. [00:27:16] Speaker 00: Appellant has not pointed to any substantial public interest. [00:27:20] Speaker 02: But we have a precedent to the contrary, though, with respect to this privilege. [00:27:23] Speaker 02: We'd have to overrule a 10-circuit precedent to find that there's not collateral order jurisdiction to consider the litigation privilege, wouldn't we? [00:27:34] Speaker 00: We don't believe so, Your Honor. [00:27:35] Speaker 00: We believe that Colorado Universal Technical Institute set out the standard very clearly two weeks ago. [00:27:40] Speaker 02: But that didn't involve litigation privilege, did it? [00:27:44] Speaker 00: No, it did not involve litigation privilege. [00:27:47] Speaker 00: But we believe that based on the substantial public interest standard, we believe that litigation privilege is a dispute between two private parties, as we have here, that there was no substantial public interest implicated. [00:28:00] Speaker 00: And so based on [00:28:01] Speaker 00: this court's prior reasoning and the Supreme Court's line of narrowing the collateral order doctrine. [00:28:06] Speaker 02: We have a specific 10th Circuit case allowing interlocutory review under the collateral order doctrine of a litigation privilege, don't we? [00:28:18] Speaker 00: There is, but it was not a litigation privilege between private parties, Your Honor, and that's where we believe that the distinction is. [00:28:27] Speaker 01: Let me explore that. [00:28:30] Speaker 01: It seems to me that there is a strong argument for a substantial public interest in cases like this. [00:28:38] Speaker 01: And the common law and the restatement recognize that allowing litigants to freely discuss the merits and demerits of a case and try to settle cases before the judicial process is invoked, that seems to me a very important private interest. [00:28:55] Speaker 01: You don't want parties not to be able to candidly discuss a case. [00:29:00] Speaker 01: And, you know, I think that's, to me, that sounds as important to public interest as resolving qualified immunity claims against government officials prior to litigation. [00:29:13] Speaker 01: I'm not quite sure why there should be that much of a distinction. [00:29:16] Speaker 01: But anyway, why isn't, why is there not a strong private and public interest here? [00:29:22] Speaker 01: Just because they're private parties. [00:29:24] Speaker 00: Just because they're private parties. [00:29:26] Speaker 00: If you look at the line of cases in the Supreme Court and in the 10th Circuit, the cases where there has been a substantial public interest involve the government. [00:29:33] Speaker 00: They involve separation of powers. [00:29:35] Speaker 00: It involves important issues that are bigger than a defamation claim between two private parties. [00:29:40] Speaker 00: And switching from federal law to state law, if you look at the Colorado cases, again, litigation privilege can be decided without needing to cut it off at the motion to dismiss stage. [00:29:52] Speaker 01: Even though they're private parties, ultimately what happens here is the invocation of the judicial process. [00:30:01] Speaker 01: They're in court and maybe a flip way to say it is the process is the punishment. [00:30:08] Speaker 01: If you can't avoid court for these legitimate interests, there is a substantial government issue at play here because [00:30:19] Speaker 01: you know, we've got judges and three judges here in a district court proceeding. [00:30:23] Speaker 01: You know, it seems to me that that's government adjacent if it's not not directly involving government. [00:30:28] Speaker 00: It could be considered government adjacent and I see my time is about to finish. [00:30:32] Speaker 00: May I answer your question? [00:30:33] Speaker 00: Please. [00:30:34] Speaker 00: We do see how it would be considered government adjacent, but [00:30:37] Speaker 00: The substantial public, the right to avoid trial and the right to avoid the process that is the punishment, as you point out, this court just said in Universal Technical University that the right to avoid trial is not enough. [00:30:49] Speaker 00: It has to implicate that substantial public interest and appellant has not cited any cases where litigation privilege between private to private parties would reach that substantial public interest. [00:30:59] Speaker 00: Even though it could be argued that the dispute in the judicial system as a whole is the substantial public interest, that's just not in line with the cases that have been coming from this court and from the Supreme Court. [00:31:12] Speaker 00: The Supreme Court has been emphatically narrowing the margins of the collateral order doctrine using the substantial public interest for the past several decades. [00:31:21] Speaker 00: Thank you. [00:31:25] Speaker 02: Thank you. [00:31:25] Speaker 02: Your time is up, but I'm going to give you 30 seconds. [00:31:31] Speaker 02: minutes of rebuttal. [00:31:32] Speaker 02: Well, that comes out of your 15 minutes. [00:31:35] Speaker 02: I'm going to do 30 seconds. [00:31:37] Speaker 03: I'm going to talk fast. [00:31:38] Speaker 03: OK, good. [00:31:38] Speaker 03: We did cite a case, Black versus Dixie Consumer, Sixth Circuit, 2016. [00:31:42] Speaker 03: After the Will case involves private parties, involves the litigation privilege, involves a 1291 interlocutory appeal. [00:31:48] Speaker 03: It's a denial of an absolute immunity. [00:31:50] Speaker 03: Horowitz, this case in Horowitz, this court in Horowitz says that absolute immunity entitles its possessor to not even have to answer the complaint. [00:31:59] Speaker 03: Nothing. [00:31:59] Speaker 03: You don't have to do depositions. [00:32:01] Speaker 03: answering complaints, discovery. [00:32:03] Speaker 03: The whole purpose of absolute immunity is to be spared those burdens. [00:32:07] Speaker 03: There is a case that deals with the good faith. [00:32:10] Speaker 03: It was Begley, too. [00:32:11] Speaker 03: It came out in 2020. [00:32:12] Speaker 03: They cited the Black's Law Dictionary, defining good faith as a state of mind consisting of an honesty of belief or purpose, faithfulness to one's duty or obligation, observance of reasonable personal standards and fair dealing in a given trade or business, or an absence of intent to defraud or seek unconscionable advantage. [00:32:31] Speaker 01: Well, I mean, just because you say it's in good faith, the cases suggest there is a fact issue lurking in there. [00:32:40] Speaker 01: And if there is a fact question lurking in there, how do we resolve that? [00:32:47] Speaker 01: Well, there isn't a dispute of material facts. [00:32:49] Speaker 03: There isn't one, because we submitted the documents. [00:32:52] Speaker 03: They never disputed them. [00:32:53] Speaker 01: It's a hypothetical case where [00:32:55] Speaker 01: It's disputed. [00:32:57] Speaker 01: There's a real dispute. [00:32:59] Speaker 01: How are you going to answer the good faith question in a case where it's a real issue? [00:33:04] Speaker 03: I'm trying to figure out what disputed fact there might be. [00:33:07] Speaker 03: I'll give you one example that could be. [00:33:09] Speaker 03: Let's say that they disputed that I was even retained. [00:33:12] Speaker 03: Okay, that would be an example where we might have an issue. [00:33:15] Speaker 03: Do I fit within the parameters of the 586 analysis? [00:33:19] Speaker 03: Are you a counsel? [00:33:21] Speaker 03: Is this a matter that you're involved in? [00:33:23] Speaker 03: We saw this recently with Krumer, Donald Trump, Rudy Giuliani is yelling from the rooftop, but he's not even counseled record. [00:33:29] Speaker 03: And they said, we're not going to extend the privilege there because you weren't counseled. [00:33:34] Speaker 03: They didn't have a promise of good faith or that it was, they had prospective litigation. [00:33:38] Speaker 03: They said he wasn't counseled. [00:33:39] Speaker 03: That'd be an example where we might have, but that's really not so much a dispute. [00:33:42] Speaker 02: Please, please, please. [00:33:43] Speaker 02: I gave you 30 seconds. [00:33:44] Speaker 02: We've got a minute and a half. [00:33:46] Speaker 02: Judge Timkiewicz asked a question. [00:33:47] Speaker 02: I just want you to focus precisely on things. [00:33:51] Speaker 02: Did you want to follow up anymore? [00:33:53] Speaker 02: No. [00:33:53] Speaker 02: That's helpful. [00:33:54] Speaker 03: I've been quoted as saying I have a privilege due to fame. [00:33:57] Speaker 03: Could I read just the whole sentence that I actually said? [00:33:59] Speaker 03: No, no. [00:33:59] Speaker 03: It's in the record. [00:34:00] Speaker 02: It's in the record. [00:34:01] Speaker 02: OK. [00:34:03] Speaker 02: You made your point. [00:34:04] Speaker 02: We'll read the... Thank you so much. [00:34:05] Speaker 02: I appreciate it. [00:34:08] Speaker 02: Thank you, counsel. [00:34:10] Speaker 02: A case is submitted. [00:34:11] Speaker 02: Counselors excused.