[00:00:01] Speaker 00: Case number 207020, Christopher Chandler, the appellant versus Donna Berlin et al. [00:00:09] Speaker 00: Mr. Oliveri for the appellants, Mr. Dean for the appellees. [00:00:17] Speaker 00: Good morning. [00:00:18] Speaker 00: Mr. Oliveri, you may proceed. [00:00:21] Speaker 03: Good morning, your honors, and may it please the court. [00:00:24] Speaker 03: My name is Joe Oliveri, and I represent the plaintiff appellant, Christopher Chandler, in this case. [00:00:29] Speaker 03: Your honors at the most basic level, this appeal arises from the district courts improper weighing of evidence on summary judgment that denied Mr Chandler his day in court to rebut false defamatory and highly damaging accusations made against him. [00:00:44] Speaker 03: In this case, Mr Chandler asserts two separate defamation claims, each based on a distinct publication of a dossier, which defendants authored and published to journalists and prolific author, Robert Arringer who's a third party to this case that falsely accused Mr Chandler of among other things, engagement in organized crime and espionage. [00:01:04] Speaker 03: The appeal presents a simple and straightforward question with regard to each of those two claims. [00:01:10] Speaker 03: Mr. Chandler's first claim arises from the 2017 republication by Mr. Erringer to the British media of the dossier that defendants authored and previously published only to him. [00:01:22] Speaker 03: The question before this court is whether the district court erred in granting summary judgment based on its holding as a matter of law that it was not reasonably foreseeable to defendants that Mr. Arringer, who paid defendants to author and publish this defamatory dossier about Mr. Chandler, who essentially hired defendants to produce an opposition research report on Mr. Chandler, might subsequently share the allegations or repeat the allegations in that dossier. [00:01:50] Speaker 03: The court absolutely erred in that holding both because it fundamentally misconstrued the law governing the foreseeability analysis and also separately because it failed to consider and to credit on summary judgment evidence that courts have repeatedly held make republication of a libel reasonably foreseeable. [00:02:08] Speaker 00: Mr. Chandler's second claim arises- You mentioned evidence that other courts have credited and what evidence are you talking about that's relevant here? [00:02:18] Speaker 03: Yes, Your Honor. [00:02:19] Speaker 03: So the district court, in its opinion, did not consider the fact that Mr. Chandler, or I'm sorry, that defendants here published their dossier to Mr. Erringer, who is a journalist. [00:02:33] Speaker 00: And you talk about evidence, but you never [00:02:37] Speaker 00: I don't know if you represented Mr. Chandler in the trial court, but there was no deposition of Mr. Berlin to pin down actually what he did know. [00:02:47] Speaker 00: Is that right? [00:02:48] Speaker 03: That's right, Your Honor. [00:02:50] Speaker 03: The court granted only very limited discovery with regard to the second claim here. [00:02:57] Speaker 03: about whether or not the discovery rule applied. [00:03:01] Speaker 03: But here, despite the lack of a deposition of Mr. Berlin, there's still evidence in the record that, and let me go through a couple of things. [00:03:10] Speaker 03: First, that Mr. Erringer was a journalist and courts have common sensibly recognized and defendants don't dispute that it's reasonably foreseeable that a journalist may republish defamatory statements that are made to them. [00:03:23] Speaker 00: And the only way we know we're imputing knowledge to Mr. Berlin about Mr. Erringer's status as a journalist based on matters of public record, because you never sought a Rule 56D opportunity to depose Mr. Berlin, right? [00:03:43] Speaker 03: It's correct that we have not had Mr Chandler blow did not seek to depose Mr Berlin but there is still evidence, both in the public record and also if you look at the statements of material facts submitted in conjunction with the summary judgment motion can Mr Chandler is counter statement of material facts. [00:04:00] Speaker 03: He stated that Mr. Berlin and defendants did in fact know that Mr. Erringer was a journalist and defendants never objected to or disputed that fact on summary judgment. [00:04:13] Speaker 03: In addition, and tying it correctly into that, Your Honor, the record shows that defendants here have decades of experience [00:04:20] Speaker 03: in the research and investigation industry, and they know that their clients seek information from them to use that information. [00:04:28] Speaker 03: Defendants brag on their website, which again is in the summary judgment record, that their clients engage their services to obtain information in order to use it, whether it's through the performance of due diligence, [00:04:40] Speaker 03: compliance activities, and to pursue litigation. [00:04:43] Speaker 03: And it's reasonably foreseeable that clients using that information would necessarily share it. [00:04:49] Speaker 03: Clients don't pay Mr. Berlin to produce reports just to get information to put it in a lockbox and seal it away. [00:04:58] Speaker 00: So that sounds like you think your claim suffices simply by Mr. [00:05:06] Speaker 00: Erlinger having shared the information with the Prince, why isn't that the beginning and end of your claim? [00:05:13] Speaker 03: Well, I think that's exactly right as well, that there's the republication to the Prince as well, in addition to a republication to the British media years later. [00:05:26] Speaker 03: The fact of the matter is that under the reasonably foreseeability analysis, [00:05:33] Speaker 03: Defendants need not have foreseen the precise injury that ultimately happens to the plaintiff or the particular method in which that harm occurs, as long as it was reasonably foreseeable that the allegations would be republished to somebody. [00:05:48] Speaker 03: And here, the record shows that defendants did have knowledge or at least there was a fact question as to whether defendants had that knowledge or should have had that knowledge that the allegations in the dossier may be republished. [00:06:04] Speaker 03: If you look also, defendants submitted a declaration in this case in which they stated that they told Mr. Arringer he needed to verify the information in the dossier before relying on that. [00:06:18] Speaker 03: And from that as well, it's reasonable to conclude that defendants were expressly contemplating that Mr. Arringer may share the information. [00:06:27] Speaker 00: That seems like a stretch. [00:06:28] Speaker 00: I mean, they could without [00:06:30] Speaker 00: tipping their hand about what they already had, they could take action to verify that information as a set of hypotheses without actually sharing the dossier. [00:06:41] Speaker 00: But just going back to the cases that you rely on, I have a few questions. [00:06:46] Speaker 00: It's striking how long the time is here between Berlin [00:06:52] Speaker 00: giving the dossier to Arringer and the British press getting it. [00:06:58] Speaker 00: Do you have any cases that support that long time lapse? [00:07:04] Speaker 00: I think your only case is the Cosby case, which is, is there anything else that supports a long time lag like that? [00:07:12] Speaker 03: Sure. [00:07:13] Speaker 03: Two points, Your Honor. [00:07:14] Speaker 03: Just very quickly, the first thing you mentioned about whether Herringer could verify the information without sharing it, that's absolutely true. [00:07:23] Speaker 03: It's a fact question that was resolved on summary judgment here. [00:07:26] Speaker 03: More directly to your more recent question there, with regard to the timing, I want to first emphasize that the key question here [00:07:36] Speaker 03: is whether it was foreseeable to the defendants that the libel might be republished foreseeability is measured at the time of the defendants wrongdoing not in hindsight, the district court here, as your honor, who recognized in her question. [00:07:53] Speaker 03: said that the most important reason for holding republication unforeseeable was that passage of 14 years. [00:08:00] Speaker 03: But future events cannot make foreseeability at an earlier date any more or less likely. [00:08:06] Speaker 03: To your honor's subsidiary question about the case law, there's the Green v. Cosby case, which found republication foreseeable after about nine or 10 years. [00:08:16] Speaker 03: And I also point to [00:08:19] Speaker 03: somewhat relatedly in Fitzgerald, which is a defamation adjacent case, there was a much claim was brought many years later. [00:08:30] Speaker 03: Here, however, again, the key fact with regard to the timing is that we have to assess reasonable foreseeability at the time that defendants originally published the dossier. [00:08:41] Speaker 00: True enough, but I don't are accepting that as the case. [00:08:46] Speaker 00: It nonetheless is a question that bears on the objective reasonableness of foreseeability. [00:08:58] Speaker 00: someone in Mr. Berlin's position would forecast that this information would be shared so far in the future. [00:09:06] Speaker 00: It seems the further you get out, the more tenuous the objectively reasonable foreseeability becomes. [00:09:15] Speaker 00: Is that not correct? [00:09:17] Speaker 00: So the length of time is a factor. [00:09:21] Speaker 00: even under your view that we assess from the time of the original transaction? [00:09:27] Speaker 03: Respectfully, no, Your Honor. [00:09:29] Speaker 03: In this case, I would submit that that's precisely the type of hindsight analysis that courts have issued. [00:09:38] Speaker 03: The converse applies as well. [00:09:40] Speaker 03: Had Mr. Herringer supplied [00:09:43] Speaker 03: Mr. Arringer republished the dossier for the allegations in the dossier six months later, using that as an indicator of foreseeability and still engaging in a hindsight analysis. [00:09:57] Speaker 03: What we have to look at is the totality of the facts [00:10:00] Speaker 03: at a time of publication, the sensational nature of the allegations. [00:10:06] Speaker 03: We have the facts that defendants know that their clients often reuse or republish their work that they get from them. [00:10:13] Speaker 03: And we have Mr. Arringer's status as a journalist. [00:10:16] Speaker 03: These are all factors. [00:10:17] Speaker 00: But you point to Mr. Arringer's status as a journalist, but [00:10:22] Speaker 00: Is it, I don't believe it's disputed in the record that he went to ICI to get this information at this time because he wanted to get work with the Prince of Monaco, not as a journalist. [00:10:39] Speaker 00: And in fact, quite the contrary, as an intelligence consultant. [00:10:45] Speaker 00: And in that role, in that role, it would seem that [00:10:52] Speaker 00: it's very unlikely that Mr. Erringer would want to broadly publish the information. [00:10:59] Speaker 00: He would want to keep it on close hold and use it to impress the prince that he had access to further information that would be useful to the prince. [00:11:09] Speaker 00: So, and this is sort of where I think the [00:11:13] Speaker 00: the projected timeframe comes in to the picture, because if Mr. Berlin is thinking, here's a guy who wants to be a confidential intelligence advisor to the prince, it's not only not in his interest to republish this broadly, it's in his interest not to. [00:11:33] Speaker 03: Well, I think the answer that your honor, is that Mr Aaron George wearing a couple of hats here. [00:11:39] Speaker 03: He may be wearing the intelligent the intelligence or want to be intelligence operative at. [00:11:44] Speaker 03: He's also a known journalist who was recently profiled by salon magazine, just before the. [00:11:51] Speaker 03: he contracted the defendants to get this dossier. [00:11:54] Speaker 03: We can't assume for purposes of summary judgment here that he's taking his journalist hat off and putting it in his pocket for purposes of this transaction. [00:12:04] Speaker 03: There's no evidence of that. [00:12:05] Speaker 03: And of course, summary judgment. [00:12:08] Speaker 00: But summary judgment is an evidentiary standard and your client also has a burden on that. [00:12:12] Speaker 00: There's no evidence that Berlin did know about [00:12:17] Speaker 00: Erringer's other hat. [00:12:20] Speaker 03: Well, respectfully, there is evidence that Mr. Berlin knew about Erringer's journalism hat here. [00:12:28] Speaker 03: Again, I would point, Your Honor, in the record to plaintiff's counterstatement of material facts that was undisputed by defendants. [00:12:34] Speaker 03: And it's also, we would submit, reasonable to conclude that even absent that stated fact [00:12:41] Speaker 03: that was not disputed on summary judgment. [00:12:44] Speaker 03: Defendants, based on their knowledge and their experience in the research and investigation industry, surely who would have looked into Mr. Arringer before taking him on as a client to make sure that, as defendants say on their website, their services are contracted for permissible purposes under law. [00:13:03] Speaker 03: I want to pivot. [00:13:04] Speaker 03: I'm happy to answer more questions on that. [00:13:06] Speaker 03: But because my time is very short. [00:13:08] Speaker 03: I also want to briefly address the second claim here. [00:13:11] Speaker 01: Can I ask you will absolutely. [00:13:14] Speaker 01: So can I just ask a different [00:13:17] Speaker 01: Take a different angle on your 2017 theory. [00:13:21] Speaker 01: Sure. [00:13:22] Speaker 01: Which is, you don't allege that Kurt Lynn, but defendant here, did anything wrong in 2017, correct? [00:13:37] Speaker 03: With regard to the repubblication, no. [00:13:41] Speaker 01: Right, so your theory, [00:13:45] Speaker 01: This theory we're talking about has to be linked back to the 2003 publication. [00:13:55] Speaker 01: And your theory has to be that the conduct that Berlin engaged in in 2003, approximately caused all of these damages in 2017, [00:14:15] Speaker 01: because not withstanding the passage of all of these years, the republication was reasonably foreseeable. [00:14:22] Speaker 03: That's right, your honor. [00:14:23] Speaker 03: And to the point about the 14 years. [00:14:25] Speaker 03: Right. [00:14:26] Speaker 01: But that only works, that only works if you're right on the point that you were about to come to, which is that the claim based on 2003 conduct [00:14:42] Speaker 01: didn't never accrued, never accrued over all those years because the discovery rule prevented it. [00:14:50] Speaker 03: That's true. [00:14:52] Speaker 03: And I want to make sure we're not conflating the claims. [00:14:54] Speaker 03: That's Mr. Chandler's second claim. [00:14:57] Speaker 03: To your point about the passage of time, Your Honor, we submit that because DC law says that the foreseeability analysis, you do not have to foresee the precise injury or manner. [00:15:09] Speaker 03: As long as it was foreseeable to defendants that Arringer might republish his dossier, whether it happened one, five, 10, or 14 years later, [00:15:18] Speaker 03: doesn't make a difference. [00:15:19] Speaker 03: And if you're using that to make a difference, you're engaging in a hindsight analysis that courts say is improper. [00:15:25] Speaker 00: But looking not in hindsight, I just want to probe a little bit more. [00:15:28] Speaker 00: You rely very heavily on these reporter source cases. [00:15:34] Speaker 00: And the relationship between Erringer and Berlin was not that of a reporter and a source. [00:15:45] Speaker 00: So how can we even rely on those cases, given that what matters is what would be objectively reasonable for a person in Berlin's circumstance, knowing what he knew at the time in 2003. [00:16:06] Speaker 03: So probing that your honor. [00:16:09] Speaker 03: What is, what is the factual question here, you know, is it reasonable that he might have for senior would republish this, he knew that herringer was a journalist who still, you know, again, [00:16:21] Speaker 03: I would submit it would be unreasonable to expect that a known journalist and prolific author who would suddenly take off his journalists that yes, he is, he engaged defendants to get this information, whether it's, you know, [00:16:36] Speaker 03: As as a source or as a paid source of information, Mr arranger need not are sorry defendants need not know what to what end he was being engaged, they were being engaged to provide this information, just that they know that that this guy arranger, you know, his look is looking for dirt. [00:16:54] Speaker 03: is known to be a journalist is getting sensational allegations here. [00:17:01] Speaker 03: There's, I would say, at least a fact question here, whether it was reasonably foreseeable that he may republish this, these allegations in the future. [00:17:11] Speaker 03: The district court held that no reasonable juror could find it reasonably foreseeable. [00:17:16] Speaker 03: And that's where we submit there's error. [00:17:19] Speaker 03: Ultimately, at the end of the day, Mr. Chandler may win or may lose, but it's not an issue that should have been decided here on summary judgment based on the mix of evidence in the record. [00:17:31] Speaker 00: How is it whether, is it your position that all [00:17:39] Speaker 00: Chandler needs to prove is that some future republication is foreseeable, not this time place manner. [00:17:51] Speaker 00: Yes, what's your best authority for that broader standard that it that [00:17:57] Speaker 00: That the foreseeability could be pretty, pretty wide open I'm putting this false information out in the world. [00:18:03] Speaker 00: I lack assurances that it's never going to leak out and harm this person and therefore it's a it's a ticking time bomb forever. [00:18:14] Speaker 00: Is that the position? [00:18:15] Speaker 03: I think you have to look at the confluence of facts here. [00:18:19] Speaker 03: In terms of case law, I would direct Your Honors to DC v. Perez, the DC Court of Appeals 1997, Psychiatric Institute of Washington, also the DC Court of Appeals, which cited this court's decision in Kendall from some years earlier. [00:18:34] Speaker 03: that governs the foreseeability analysis here. [00:18:38] Speaker 03: With regard to your authors taking time bomb scenario, I think you have to look at the facts. [00:18:43] Speaker 03: So this isn't a case where a defendant told say someone in his employ some information where it would be very reasonable to expect that a confidence would be kept. [00:18:56] Speaker 03: Here you're providing information to a third party [00:18:59] Speaker 03: You know who you know is a journalist you know that you're providing explosive allegations that people have a tendency to repeat. [00:19:08] Speaker 03: And you know that you are being hired and paid to provide essentially oppo research on Mr Chandler and people [00:19:16] Speaker 03: people pay money to get information like that, to use it, to share it. [00:19:21] Speaker 03: And it's reasonable that based on all the totality of the facts here that Mr. Berlin could have foreseen reasonably that at some point this information may have been republished. [00:19:33] Speaker 00: Your cases, your DC versus Perez and your Psychiatric Institute of Washington cases, those are not defamation or libel cases. [00:19:40] Speaker 00: Those are other kinds of tort cases. [00:19:42] Speaker 00: I don't know whether it's because of the First Amendment overtones, but [00:19:48] Speaker 00: It doesn't seem that the courts have been as generous with foreseeability where we're talking about information. [00:19:54] Speaker 03: Well, Your Honor, I think there's a lack of case law out there because the facts here are admittedly pretty unique. [00:20:02] Speaker 03: It's not every day that someone hires a private investigator to provide to get sensational allegations. [00:20:11] Speaker 03: and then sits on it for a period of time like they did here. [00:20:14] Speaker 03: Admittedly, there's not a lot of case author, but the principles from Perez and Psychiatric Institute, the principles governing the foreseeability analysis apply in full force and the cause. [00:20:26] Speaker 00: And Mr. Berlin argues, sorry to interrupt, but Mr. Berlin argues that allegations in defamation cases are always explosive. [00:20:35] Speaker 00: So on your, [00:20:38] Speaker 00: Framing, there would always be foreseeability. [00:20:41] Speaker 00: Basically, cause is there once the information is set loose. [00:20:48] Speaker 03: I want to make it clear there. [00:20:51] Speaker 03: So defamatory statements, as Mr. Berlin explains in his brief, are always discreditable statements. [00:20:58] Speaker 03: So they're always statements that are going to hurt someone in their reputation. [00:21:02] Speaker 03: That said, there are degrees there. [00:21:05] Speaker 03: And there is a huge difference between explosive allegations of Russian espionage, of organized crime, and massive money laundering schemes [00:21:14] Speaker 03: versus the statement that John Smith stole an apple from his teacher. [00:21:20] Speaker 03: So all of those are discreditable statements, but certainly the allegations of espionage that are also newsworthy, explosive allegations are of a different order of magnitude than those other discreditable statements. [00:21:35] Speaker 03: So the exception doesn't swallow the rule here. [00:21:39] Speaker 00: I'm also, we haven't really talked about the tolling issue that much separately, but on the one hand, you're willing to attribute a lot of information that was public to Mr. Berlin, but it seems less so when it comes to imputing knowledge to put Mr. Chandler on inquiry notice. [00:22:03] Speaker 00: Why isn't it the case, as the district court held, that Erringer's various republications 2009, 15, 16 were enough to cause a reasonably diligent target of these, as you say, defamatory and extraordinary statements to make inquiry and find out [00:22:29] Speaker 00: What their punitive source was. [00:22:31] Speaker 03: Your honor's question presents two related issues. [00:22:34] Speaker 03: One, the inquiry notice point, whether the 2009 lawsuit or 2014 book put Mr. Chandler on inquiry notice. [00:22:44] Speaker 03: And then if he were on inquiry notice, whether through the exercise of reasonable diligence, he would have discovered defendants' publication of the dossier. [00:22:53] Speaker 03: Taking those in turn, Your Honor, if we look at the 2009 lawsuit, the district court said, and defendants, the only reason they argued that put Mr. Chandler on inquiry notice is because it said that Arringer investigated Mr. Chandler and has documents on that matter. [00:23:10] Speaker 03: Well, the complaint itself does not mention defendants doesn't mention the dossier doesn't mention arranger working with anyone at all can in fact arranger claims complete credit for that investigation of Mr Chandler he says arranger intensively investigated it. [00:23:28] Speaker 03: There's no reason to suspect that even if Mr. Andrew has documents, they would reveal defendant's dossier or defendant. [00:23:36] Speaker 00: How about the later ones where Chandler is on record sort of taking a pass like I'm going to just weather these. [00:23:41] Speaker 00: I'm not going to find out more. [00:23:44] Speaker 00: These are these are foolish. [00:23:45] Speaker 03: Yeah, and that that goes to the book and the blog post, which again, don't mention defendants don't mention the dossier, Mr arranger her I'm sorry, Mr Chandler, perhaps could have decided to sue Mr arranger there, however he chose not to, which is his right and as this court recognized [00:24:04] Speaker 03: in its Liberty Lobby decision, Mr. Arringer previously has been a source of scurrilous allegations. [00:24:10] Speaker 03: So it may well have been Mr. Chandler decided not to sue Mr. Arringer because he didn't want to lend credibility to Mr. Arringer's outlandish claims. [00:24:20] Speaker 00: I'm not sure whether it makes a difference legally, but I'm just curious why that changes in 2017. [00:24:28] Speaker 00: If Arringer is still the source of the information that's going to the MPs and to the British press, [00:24:34] Speaker 00: Why does it seem more, why would Mr. Chandler change his mind then? [00:24:45] Speaker 03: So I don't think legally it makes a difference. [00:24:49] Speaker 03: And I hesitate to speculate on the record here, Your Honors, but I think it would be reasonable that come 2017 when Mr. Arringer republishes this dossier or the allegations in the dossier to the British media, and it creates a firestorm where British parliament was investigating Mr. Chandler. [00:25:08] Speaker 03: They ultimately found he was an innocent man, of course. [00:25:11] Speaker 03: But at that point, [00:25:12] Speaker 03: It wasn't just some book self-published on Mr. Erringer's website. [00:25:17] Speaker 03: It was false allegations that are gaining traction, and it compelled Mr. Chandler to step up at that point. [00:25:25] Speaker 03: I don't want to leave unanswered Your Honor's second question about the reasonable diligence. [00:25:31] Speaker 03: If he were on inquiry notice, which again, I don't think I would submit that the lawsuit and the book do not put Mr. Chandler on inquiry notice, but even if it did, [00:25:42] Speaker 03: The court's only holding on this point in defendant's argument was that if Mr. Chandler had sued Mr. Arringer, he would have discovered the dossier. [00:25:51] Speaker 03: There's two faults with that. [00:25:54] Speaker 03: First, that the district court's holding goes against settled law saying that reasonable diligence does not require a person to commence a lawsuit in order to procure discovery of unknown facts. [00:26:07] Speaker 03: Defendants don't dispute any of that. [00:26:09] Speaker 03: And I think the one case that defendant site is holding otherwise the brain case says that, with some evidence of wrongdoing, so i.e. [00:26:19] Speaker 03: the defendant already knows his, his cause of action, and you're in a Chappelle situation which is unlike that here. [00:26:26] Speaker 03: Secondly, though, even if Mr Chandler had sued Mr Anger, there's no guarantee that he would have obtained discovery, and that discovery that that discovery would have shown defendants connection to the dossier, he would have had to have overcome a motion to dismiss, he would have arranged it would actually had to have participated in the lawsuit. [00:26:46] Speaker 03: Erringer would have still needed to have docs linking the defendants. [00:26:51] Speaker 03: That's all speculative as defendants point out in their brief and I think that's exactly the point. [00:26:55] Speaker 03: We just don't know and the court held as a matter of law that Mr. Chandler would have found all those facts. [00:27:04] Speaker 03: I know my time has expired. [00:27:05] Speaker 03: I don't want to belabor the point and take up the court's time. [00:27:08] Speaker 03: Happy to answer any other questions that your honors would have though. [00:27:11] Speaker 00: All right, even though we've consumed your time with questions, we will give you two minutes for rebuttal after Mr. Dean has had an opportunity to argue. [00:27:21] Speaker 00: Good morning, Mr. Dean. [00:27:24] Speaker 00: You may proceed when ready. [00:27:25] Speaker 00: Oh, you're muted still, Mr. Dean. [00:27:34] Speaker 02: I'm sorry, that was my best argument too. [00:27:38] Speaker 02: May it please the court, John Dean representing Mr. Berlin and the ICI companies. [00:27:45] Speaker 02: I wanna provide a minute of context to the allegations that have been made against Mr. Berlin. [00:27:52] Speaker 02: I'd like the court to consider Mr. Chandler's position in 2018 when he finally gets his hands on the documents that the press has been writing about. [00:28:01] Speaker 02: He gets those documents and he knows [00:28:04] Speaker 02: Erringer is the author of one of those documents. [00:28:08] Speaker 02: Erringer is the person who gave those documents to the press. [00:28:12] Speaker 02: He knows that Erringer has been saying this stuff about him for years, starting all the way back in 2009. [00:28:18] Speaker 02: Because Erringer gave those documents to somebody in Great Britain, it's likely that he can sue Erringer in Great Britain, where the defamation laws are a lot more favorable [00:28:27] Speaker 02: to plaintiffs than they are in the US. [00:28:30] Speaker 02: And what does he do? [00:28:30] Speaker 02: He doesn't take any action against Arringer. [00:28:33] Speaker 02: Instead, he embarks on what plaintiffs' reply brief calls an extraordinary effort to discover the author of another document. [00:28:42] Speaker 02: He learns that Mr. Berlin is the author. [00:28:44] Speaker 02: Mr. Berlin, a small businessman who delivered a report to Erringer in 2003, gave that report to nobody else. [00:28:53] Speaker 02: And in fact, nobody else ever got a copy of that report until 2017, according to paragraph 11 of the complaint. [00:29:01] Speaker 02: The Prince never got it. [00:29:03] Speaker 02: Nobody got it, according to Mr. Chandler's complaint. [00:29:07] Speaker 02: And Mr. Berlin has made no public comments about Mr. Chandler, whatever. [00:29:13] Speaker 02: Mr. Chandler, however, chooses Mr. Berlin as his target to combat this firestorm that now has erupted. [00:29:21] Speaker 02: And he's got to sue Mr. Berlin in the US, where the law is a lot less favorable. [00:29:26] Speaker 02: I submit, Your Honors, that these are not the actions of a wrong philanthropist who's seeking a full and fair day in court to restore his reputation. [00:29:36] Speaker 02: which has been sullied over and over and over again by Arringer, I think it is more likely an effort to try and extract a concession from Mr. Berlin and in the hope that he can use that in his public relations campaign. [00:29:51] Speaker 00: Well, to be sure, I mean, we have to assume because the merits have yet to be litigated that Mr. Berlin has proffered false information [00:30:04] Speaker 00: And you may not accept that, but you have to provisionally accept that in the current posture. [00:30:10] Speaker 00: So if Mr. Berlin has been the engine behind Mr. Ehrlinger's subsequent [00:30:19] Speaker 00: dining out on the information, if it's the source is Mr. Berlin. [00:30:24] Speaker 00: And the question is, why does this passage of time matter? [00:30:29] Speaker 00: If somebody told somebody else in 1965 that my great grandfather was a Nazi, and it didn't come out until I was nominated to be a judge, but then it becomes something all over the news, [00:30:49] Speaker 00: Why would it matter that there was a long passage of time if that information was false when communicated and because of its character and the circumstances of its having been generated made it objectively foreseeable that it would see the light of day and it would be very damaging to the reputation of its target at a later time? [00:31:19] Speaker 00: Why does that matter? [00:31:22] Speaker 02: I think it matters in this respect. [00:31:24] Speaker 02: And obviously, Your Honor, we completely agree that for purposes of the motions we made, we have to assume the truth of the allegations about Mr. Berlin, even though if Mr. Berlin is forced to defend himself, he will, and it will be taken care of at that point. [00:31:40] Speaker 02: But this is a republication case, and a republication. [00:31:45] Speaker 02: In part, it's a tolling case. [00:31:50] Speaker 02: Well, fair enough. [00:31:51] Speaker 02: Talking about 2017, it's a republication case. [00:31:55] Speaker 02: And as far as 2017 goes, the law is that Erringer, who republished the bill admitted report, is absolutely liable for it and he can be sued with no problem at all. [00:32:09] Speaker 00: You focused on that in your opening and I just don't see how that gets you anywhere other than as a sort of fairness and equities argument. [00:32:14] Speaker 00: It's legally irrelevant whether Mr. Chandler chose not to sue Mr. Erringer [00:32:21] Speaker 02: Well, it's certainly relevant when we get to the tolling, Your Honor, and I'll put that aside. [00:32:26] Speaker 00: And the inquiry notice. [00:32:27] Speaker 00: Okay, but I'm not sure that you're... [00:32:31] Speaker 00: using your time in the most relevant way by focusing on that? [00:32:34] Speaker 02: Well, I mean, I had pretty much used all the time that I was going to use on that point, because the foreseeability argument with respect to 2017, there's a fundamental difference between the parties here as to what the actual standard is. [00:32:52] Speaker 02: We say that the standard is the very republication that is the source of the plaintiff's defamation claim must have been reasonably foreseeable to the defendant. [00:33:03] Speaker 00: How much, because I thought you were pulling away from that after Mr. Oliveira's brief said it can't be [00:33:15] Speaker 00: That it's, you know, this particular publication in this particular place and these particular time. [00:33:21] Speaker 00: It can't be that narrow and the case law doesn't so suggest so the question whether somewhere far down the road. [00:33:28] Speaker 00: This false information that is quite [00:33:35] Speaker 00: defamatory will see the light of day. [00:33:38] Speaker 00: Yeah, it's relevant that it's far down the road, but does it have to be in Britain as of the time of the Brexit controversy? [00:33:47] Speaker 02: Oh, no, absolutely not. [00:33:50] Speaker 00: You said the very republication at issue would have to be foreseen. [00:33:56] Speaker 02: Would have to be reasonably foreseeable. [00:33:58] Speaker 02: but reasonably is an important qualifier in that and we certainly don't dispute that at all. [00:34:05] Speaker 02: In other words, the question is, looking in 2003, and we don't deny that 2003 is the time when you look at this, looking in 2003, can you envision circumstances [00:34:18] Speaker 02: in which this report will be republished. [00:34:23] Speaker 02: And sure, I mean, we don't expect him to sit down there and say, yes, in Britain in 2017, there'll be something called Brexit and ask him, do you foresee that? [00:34:35] Speaker 02: The answer is obviously going to be no. [00:34:37] Speaker 02: But the point is this, the case law all says that the republication must be reasonably foreseeable. [00:34:44] Speaker 02: Mr. Chandler's position is, [00:34:46] Speaker 02: If there's any, it's the ticking time bomb position. [00:34:50] Speaker 02: If any republication at all is foreseeable, then any republication is foreseeable. [00:34:57] Speaker 02: And that, that can't be the law because, well, because number one, the cases don't say so. [00:35:03] Speaker 02: The cases say the very republication. [00:35:05] Speaker 00: No, they don't. [00:35:07] Speaker 00: Well, what's your best case for the very republication? [00:35:10] Speaker 02: Well, all the cases, I'd say, Oparaku, Inbur, and Tavlerias. [00:35:15] Speaker 02: Tavlerias says, such republication. [00:35:18] Speaker 02: Ingber and Oparag will say the repetition or the republication, and the restatement says that as well. [00:35:24] Speaker 02: That definite article means something. [00:35:27] Speaker 02: What it means is what are the circumstances? [00:35:30] Speaker 02: I mean, let me say this so there's no confusion here. [00:35:36] Speaker 02: In their reply brief, the standard that they offer from Psychiatric Institute of Washington is you don't have to foresee the precise injury, but what you do have to look at is [00:35:48] Speaker 02: Is the possibility of harm clear to the ordinary prudent eye? [00:35:53] Speaker 02: And we'll take that. [00:35:54] Speaker 02: We don't have a problem with that as a standard. [00:35:57] Speaker 02: So what's the question? [00:35:58] Speaker 02: The reasonable foreseeability question that we see is this. [00:36:02] Speaker 02: Was in 2003, was it clear to the ordinary prudent eye that this report [00:36:09] Speaker 02: Given to one person and one person only marks confidential would somehow not be published by arranger as a journalist, but be given by arranger as a source to the press. [00:36:24] Speaker 02: years later in a foreign country, in a country that has no relationship whatsoever to the events that are described in that report, and the only reason it goes to the press in that country is because what's in there is now newsworthy because of two events, Mr. Chandler's think tank and the Brexit controversy, that were totally [00:36:47] Speaker 02: unanticipated in that country years ago. [00:36:50] Speaker 00: I don't think it could be anticipated that a well-to-do business person would be harmed by these kinds of claims in a report that Mr. Berlin wrote coming to light. [00:37:08] Speaker 02: It might be, but the point is not, is the harm to Mr. Chandler foreseeable? [00:37:15] Speaker 02: The question is, is the republication foreseeable? [00:37:19] Speaker 02: Mr. Chandler at that time has no connection to Great Britain at all. [00:37:24] Speaker 02: He's in New Zealand. [00:37:25] Speaker 00: Right, so a republication. [00:37:26] Speaker 00: What if what if what was foreseeable was that it would be published to media [00:37:37] Speaker 00: at some point down the road? [00:37:39] Speaker 02: I mean, I have to say that it depends on the nature of the foreseeability and the particular reason. [00:37:49] Speaker 00: But isn't Mr. Berlin liable if it's given to anyone, including the prince? [00:37:57] Speaker 02: Only if it's reasonably foreseeable. [00:37:59] Speaker 00: And wasn't it reasonably foreseeable that it would be given to the prince? [00:38:03] Speaker 00: It's possible, although- Not reasonably foreseeable? [00:38:07] Speaker 02: Well, no, because of the circumstance that he informed, and this was undisputed, he informed Arringer, look, this is information that I've gotten from databases. [00:38:20] Speaker 02: You've got to go and you've got to verify this. [00:38:22] Speaker 02: You've got to check and see if it's correct. [00:38:26] Speaker 02: before you rely on it. [00:38:27] Speaker 02: So I don't think that that's necessarily foreseeable. [00:38:30] Speaker 02: But even if it is, the fact of the matter is that giving it to the press many years later is not foreseeable, particularly because of their allegation that what this is, is a pitch. [00:38:45] Speaker 02: Now that's what they called it in the complaint. [00:38:47] Speaker 02: It's not a word that we've heard very much in this court. [00:38:51] Speaker 02: But they have said is it's a business proposal. [00:38:54] Speaker 02: It's a confidential business proposal. [00:38:56] Speaker 00: It's a business proposal, which the very term pitch, I would think would work against the point you were just making, which is that perhaps the understanding was that Erringer was supposed to validate before he relied on, let's say, in having the Prince take action against Chandler. [00:39:17] Speaker 00: But as a pitch, as a teaser, [00:39:22] Speaker 00: Was it not objectively reasonable to anticipate that Erringer would share it with the prince? [00:39:28] Speaker 02: Yeah, if in fact it was, and just to make clear, we don't at all concede that it was a piece, but we're assuming that for the purposes of our motion. [00:39:38] Speaker 02: But it might've been foreseeable that it would go to the Prince, but it's certainly not foreseeable that it's gonna be published in the newspaper. [00:39:45] Speaker 02: If you're saying to the Prince, I've got some really good information that you need to pay so that we can look into, how much is he gonna pay if he can pick up his newspaper and read it? [00:39:57] Speaker 02: And moreover, [00:39:58] Speaker 02: publication of it 14 years later at a time when Arringer is no longer working for the prince, at a time when Chandler is no longer living in Monaco, and when there is absolutely in 2003 no indication that anybody in Great Britain would care about this one way or another, takes it way beyond the realm of reasonable foreseeability. [00:40:24] Speaker 02: Timing is an important issue here as the cases that the district court cited uphold the Gracie case from New York says three years is is too much H&B Associates says five years and so forth. [00:40:39] Speaker 02: The district court teed up the issue of [00:40:42] Speaker 02: there's no case that ever talks about reasonable foreseeability for this long a period. [00:40:50] Speaker 02: And the only case that they could come back with to refute that is the Cosby case, which is a very, very different circumstance because in that case, the defamatory statement was intended [00:41:03] Speaker 02: to be released if those charges ever were made. [00:41:06] Speaker 02: Well, nine years later, repeated, excuse me, nine years later, those charges were repeated, the statement was used for its intended purpose. [00:41:15] Speaker 02: That's light years away from this. [00:41:17] Speaker 02: Nobody suggests that giving this report to the press in Britain has anything to do with encouraging Prince Albert to pay more money for investigations. [00:41:28] Speaker 02: That's not going to happen, no matter what. [00:41:32] Speaker 02: The issue of Erringer's journalism has, Erringer lost his journalism had a long time before 2003. [00:41:43] Speaker 02: All of the information that they talk about, and by the way, their counterstatement of material facts. [00:41:49] Speaker 02: Rule seven of the district court's rules says we as the movement put forth a statement of material facts and anything that they don't refute is admitted. [00:42:00] Speaker 02: There's nothing at all about a counterstatement of material facts and no obligation under the rules for us to respond to those facts. [00:42:07] Speaker 02: But putting that aside for the moment, Erringer's hat was off [00:42:11] Speaker 02: In the 1980s sometime, the Salon article, which of course was not a profile of Erringer the journalist, it was a profile of Erringer the spy trying to prevent publication of a book, [00:42:27] Speaker 02: And there are references to one magazine article that he wrote in the 80s, a book or two that he wrote in the 80s, and some novels. [00:42:38] Speaker 02: There's nothing about that that suggests that he is a journalist, and he wasn't. [00:42:42] Speaker 02: He was an actual intelligence agent. [00:42:45] Speaker 02: He started working for the Prince in 2002 and worked for him through 2008. [00:42:50] Speaker 02: That's what his verified complaint says. [00:42:52] Speaker 02: which, by the way, was Mr. Chandler's exhibit on summary judgment. [00:42:56] Speaker 02: They put the whole complaint in. [00:42:57] Speaker 00: But in terms of reasonably foreseeable, somebody who spent most of his professional life as a writer and is trying to launch into presumably more remunerative fields, but that's a tenuous prospect. [00:43:14] Speaker 00: And presumably, if he doesn't succeed or succeeds only temporarily, [00:43:19] Speaker 00: he'll be thrown back on his primary mode of earning a living, which is writing. [00:43:25] Speaker 00: And he could, isn't it foreseeable that he would then repurpose anything that might get broad public attention once that hat is, you know, just to take your formulation once he's wearing his journalism hat again. [00:43:40] Speaker 00: And then, so the time lag might well be foreseeable in that, [00:43:49] Speaker 00: state of affairs, and that he would use that information when and if he could to his advantage. [00:43:56] Speaker 02: I have two responses, Your Honor. [00:43:58] Speaker 02: One is I would dispute the premise that Erringer spent most of his life as a journalist. [00:44:04] Speaker 02: If you look back in 2003, Erringer had worked for 10 years for the FBI doing counterintelligence, according to his book, which again is Mr. Chandler's exhibit on summary judgment. [00:44:18] Speaker 02: All of the journalism references, and they are pretty sparse, refer to the 80s. [00:44:26] Speaker 02: And the early 80s at that. [00:44:27] Speaker 02: He wrote a book or two in 1980. [00:44:30] Speaker 02: He had been a novelist. [00:44:31] Speaker 02: He did some work at the time. [00:44:33] Speaker 00: So it might be helpful to focus a little bit on the tolling argument. [00:44:36] Speaker 00: It seems like your argument for inquiry and notice turns on references to we and to documents. [00:44:47] Speaker 00: I'm not sure I follow that, given that if Ehringer is having people, you know, stake out Sovereign Plaza or go down to the police station to get records, that could be a we. [00:45:00] Speaker 00: It doesn't suggest that there's any other kind of, you know, center of power out there. [00:45:09] Speaker 00: Nor does the existence of documents suggest anything other than perhaps [00:45:16] Speaker 00: public record documents. [00:45:17] Speaker 00: So am I wrong that your position depends critically on those references to we and to documents alerting Mr. Chandler to the possibility of another actor? [00:45:31] Speaker 02: For the Chappelle case, if we proceed under the Chappelle case, the primary [00:45:43] Speaker 02: reference that we've depend upon is the reference to documents. [00:45:46] Speaker 02: If we proceed onto Fitzgerald, we don't need that at all. [00:45:50] Speaker 02: But as to Chappelle, what he says is, I have documents to support my charges. [00:45:56] Speaker 02: Well, you know, documents obviously don't create themselves. [00:46:00] Speaker 02: Somebody had to create those documents. [00:46:02] Speaker 02: Once Erringer says he has the documents, that imposes a duty to investigate. [00:46:09] Speaker 02: Diamond v. Davis says you have a duty to investigate your affairs. [00:46:13] Speaker 02: And sure, Erringer says I have documents. [00:46:17] Speaker 02: Maybe they're public records. [00:46:20] Speaker 02: Maybe they're something else. [00:46:21] Speaker 02: But you can't sit back and rely on the maybes. [00:46:25] Speaker 02: Because under Chappelle, what you know is you know that [00:46:31] Speaker 02: there are documents supporting arranger's charges. [00:46:34] Speaker 02: Somebody created them. [00:46:36] Speaker 02: You have a cause of action against that somebody, and you've got to find out who that somebody is. [00:46:41] Speaker 02: It's a duty to investigate. [00:46:43] Speaker 02: You can't just sit back and say, maybe this, maybe that, maybe the other thing. [00:46:49] Speaker 00: It's a duty to investigate and to show that had he investigated, he would have found out. [00:46:54] Speaker 02: That's correct. [00:46:56] Speaker 02: That's correct. [00:46:57] Speaker 02: And for that, Chappelle [00:47:00] Speaker 02: and Fitzgerald both say, in the very narrow circumstance, what we're dealing with here, which is you know you have a cause of action against one person. [00:47:11] Speaker 02: How does your knowledge of that cause of action against defendant number one influence your cause of action against defendant number two? [00:47:20] Speaker 02: And in that narrow circumstance, both Chappelle and Fitzgerald say, [00:47:26] Speaker 02: you've got to file the lawsuit. [00:47:28] Speaker 02: The cases that they rely on, Baskin and Locke, are both from other jurisdictions. [00:47:33] Speaker 02: And moreover, they are not defendant number one versus defendant number two cases. [00:47:37] Speaker 00: Judge Casas, do you have any other questions? [00:47:40] Speaker 01: I just have one about how the two parts of the case fit together. [00:47:47] Speaker 01: So assume that the republication [00:47:53] Speaker 01: was reasonably foreseeable, which is unfavorable to you. [00:47:59] Speaker 01: But also assume, which is favorable to you, that Chandler was on inquiry notice as to Berlin's conduct in 2003. [00:48:19] Speaker 01: Do you get an outright dismissal on those two assumptions or not? [00:48:23] Speaker 01: I um... [00:48:27] Speaker 02: I think we might, I guess the hesitancy that I would have is, I mean, the republication rule does say that if there's a reasonably foreseeable republication, you're liable for it. [00:48:40] Speaker 02: The complication here, I guess, is that he had an opportunity earlier on to sue for it. [00:48:49] Speaker 02: And he forfeited that opportunity by not doing so. [00:48:56] Speaker 00: Or could have had an opportunity had he... [00:49:00] Speaker 00: investigated promptly? [00:49:02] Speaker 02: How did he investigate? [00:49:03] Speaker 02: Yes, he, he, well, I guess he forfeited the opportunity to investigate and therefore the statute of limitations ran. [00:49:12] Speaker 02: What I'm struggling with, I guess, Judge Katz, is I'm not sure just in the real world how it would work out if he had sued earlier and the statute of limitations had run, you know, after this [00:49:27] Speaker 02: a whole case then were finished if someone then just went and republished it again. [00:49:32] Speaker 02: I'm not sure how those two would interact. [00:49:38] Speaker 01: The reason I ask is there are some cases that seem to say the republication rule is a principle of damages. [00:49:51] Speaker 01: And there are other cases that seem to say that a mere republication by a different party doesn't create a new cause of action. [00:50:04] Speaker 02: Yeah, I think the Goresi case in New York certainly seems to suggest that. [00:50:11] Speaker 02: I think that, and it may be that New York in certain instances doesn't follow every [00:50:20] Speaker 02: jot and tittle of the restatement. [00:50:23] Speaker 02: I think under the restatement, I think it's a principle of substantive law. [00:50:27] Speaker 02: That is, you are liable for a republication if that republication was reasonably foreseeable. [00:50:37] Speaker 02: My understanding of it is that it's a, at least in the District of Columbia, which follows the restatement, that that's a principle of substantive law and not a principle of damages. [00:50:49] Speaker 02: Okay. [00:50:51] Speaker 00: All right. [00:50:52] Speaker 00: Thank you, Mr. Dean. [00:50:55] Speaker 00: We have told you we would gift you back two minutes for rebuttal. [00:51:02] Speaker 03: Thank you, Your Honor. [00:51:04] Speaker 03: To begin where Judge Katz has left off, it would not be a full dismissal under D.C. [00:51:09] Speaker 03: law, which follows a restatement as stated by this court in Jankovic. [00:51:14] Speaker 03: A re-publication is a new publication which gives rise to a new cause of action. [00:51:21] Speaker 01: I thought Jankovic said exactly the opposite, which is that it's not a new cause of action. [00:51:30] Speaker 03: Your honor, my understanding is that Jankovic and the Forte case all harken back to the restatement where it says each communication of even the same defamatory matter, whether by the same defamer or someone else, gives rise to a separate and distinct publication, which causes separate harm. [00:51:54] Speaker 03: If you have a separate publication and a separate harm, you could have a separate cause of action. [00:51:58] Speaker 01: If the original publisher had nothing to do with that. [00:52:05] Speaker 01: That's correct. [00:52:05] Speaker 01: As long as it was reasonably foreseeable that it would be republished And even if and even if a claim on the original publication would be time barred [00:52:15] Speaker 03: That's absolutely right. [00:52:16] Speaker 03: I think that the situation that you see republication come up the most is where a claim based on an original publication is time barred. [00:52:25] Speaker 03: And then the question that's litigated is, is the subsequent publication a republication or just part and parcel of the first. [00:52:35] Speaker 03: I want to mention Chappelle, Mr. Dean, [00:52:38] Speaker 03: brought up the state of Chappelle. [00:52:40] Speaker 03: In that case, the court made clear that the plaintiff does not allege that defendant concealed the existence of a cause of action, just their identities. [00:52:50] Speaker 03: And the concealment of the defendant's identity does not toll the statute of limitations. [00:52:55] Speaker 03: Here, we have the alleged concealment of the entire cause of action, the publication of the dossier by defendants. [00:53:03] Speaker 03: It would be as if the defendants in [00:53:06] Speaker 03: Chapelle concealed the car accident rather than just the defendant's identity. [00:53:11] Speaker 03: So I just want to make sure that we keep Chapelle and Fitzgerald separate and distinct and aren't conflating those two. [00:53:21] Speaker 00: With regard to this, and you're saying this is not Chapelle because in Chapelle it is known that there was an actor, just the identity of the actor was, and here it's just not even clear there is an actor at all. [00:53:34] Speaker 03: Correct, and even more so in Chappelle, you knew that there was an injury, the Seaton's death. [00:53:40] Speaker 03: You knew the cause and fact, the car accident, and you knew evidence of wrongdoing, alleged negligent driving. [00:53:46] Speaker 03: You just didn't know the name of the driver. [00:53:48] Speaker 03: Here, Mr. Chandler did not know of the publication of the dossier, the cause and fact of his injury, which was harmed to reputation, or defendant's role in that, which is evidence of wrongdoing. [00:54:00] Speaker 00: What about Mr. Dean's effort to analogize this to Fitzgerald in the sense of like an employer-employee relationship versus a contractor-contractee relationship? [00:54:10] Speaker 00: How really different is that? [00:54:12] Speaker 00: Why shouldn't we assimilate this to the military subordinates rather than the White House Independent Power Center? [00:54:21] Speaker 03: Sure, two reasons. [00:54:23] Speaker 03: One, in those cases, there was also the people who are responsible for the same harm, and even the district court acknowledged here we're looking at two different harms, the harm from the original publication, and then the harm from the subsequent publication. [00:54:38] Speaker 03: But even more so, there's no evidence here that [00:54:41] Speaker 03: Defendants and arranger had any relationship whatsoever. [00:54:45] Speaker 03: In fact, defendants disclaim that they say in their declaration, the only work that they they worked on together is that defendants contracted with or arranger contracted with defendants to publish her to put together this dossier. [00:54:59] Speaker 03: There's no ongoing relationship. [00:55:01] Speaker 03: They weren't members of the same group or same organization or same industry. [00:55:06] Speaker 03: You're looking at people analogizing to the Air Force and the White House defendant. [00:55:12] Speaker 03: On the other hand, the only commonality [00:55:14] Speaker 03: that Mr. Arringer and defendant had was that they both conspired essentially to, or both caused tortious harm to Mr. Chandler and the court in Fitzgerald and this court also in Hobson and Richards said, that's not enough. [00:55:31] Speaker 03: Otherwise, if simply being joint tortfeasers or causing tortious harm to the same person were enough, then the Fitzgerald's claim would have accrued against the White House defendants. [00:55:41] Speaker 00: I'm a little curious, Mr. Oliveira, this is circling back to something we talked about earlier. [00:55:47] Speaker 00: You seem to see the disclaimer of the veracity of the information in the ICI report as beneficial to you because it suggests in your view that the report would be shared with others in the course of verifying it. [00:56:08] Speaker 00: And you heard my question before, which was implying that you don't need to show the basis of your hypothesis in the course [00:56:15] Speaker 00: of verifying, in fact, it's often more effective not to, and I'm not sure why Mr. Dean hasn't relied on it more, but if I give information, and maybe this is just a merits question, but if I give information to someone and say, I heard this, it may be completely false, but here it is, you may wanna follow up, how can I possibly be liable for defamation arising from that information? [00:56:40] Speaker 03: Well, two things are first. [00:56:43] Speaker 03: I think you're exactly right. [00:56:44] Speaker 03: This is a marriage question this is a fact question whether which way does this disclaimer cut. [00:56:49] Speaker 03: I think it's reasonable. [00:56:50] Speaker 03: I certainly think my position is reasonable, maybe Mr Dean's position is as well, but that becomes a question for the fact finder. [00:56:59] Speaker 03: Your second question about liability would go to the specifics of the republications. [00:57:07] Speaker 03: Even if it were a situation where someone said, I heard this, I think this might be true. [00:57:14] Speaker 03: It may not. [00:57:15] Speaker 03: I think there's a closer call there than when someone republishes the material as fact to the British media. [00:57:23] Speaker 03: But there, that goes to the merits of the defamation claim, not the question of whether [00:57:28] Speaker 03: publication is reasonably foreseeable. [00:57:31] Speaker 03: There's an obvious publication element satisfaction there. [00:57:34] Speaker 03: The question becomes, is it defamatory as a matter of law? [00:57:37] Speaker 03: Was it published with the right element of fault? [00:57:39] Speaker 03: And those are just merits questions. [00:57:41] Speaker 03: And one last point, if I may, very quickly. [00:57:46] Speaker 03: Very quickly. [00:57:47] Speaker 03: The question of we and our investigation could very well have referred to Mr. Arringer and Prince Albert, our investigation, or Mr. Arringer and his self-described Monaco Intelligence Service. [00:58:01] Speaker 03: Certainly, those are reasonable constructions. [00:58:04] Speaker 03: And I would submit even more reasonable, even though that's not the standard, than defendants' involvement here. [00:58:09] Speaker 00: Or it seems to me even more effective for you, his administrative assistant or his research. [00:58:15] Speaker 03: That's absolutely true. [00:58:16] Speaker 03: That's absolutely as true as well, Judge Pollard. [00:58:18] Speaker 03: And I thank you for your time there. [00:58:21] Speaker 03: Thank you both. [00:58:22] Speaker 00: The case is submitted.