410 F.Supp.3d 564
S.D.N.Y.2019Background
- Plaintiff Virginia Giuffre alleges she was forced to have sex with Alan Dershowitz and that Dershowitz publicly called her a liar, a perjurer, and accused her and her lawyers at Boies Schiller Flexner LLP (BSF) of conspiring to extort him. Giuffre filed this defamation suit in April 2019.
- Dershowitz made widely disseminated statements denying the allegations in 2015 and again in 2018–19; Giuffre contends the later statements are republications and actionable. Dershowitz contends earlier statements bar later claims under New York’s single-publication rule.
- Prior contacts between Dershowitz and BSF lawyers: BSF partners (including Sires and Singer) offered to assist Dershowitz in early 2015, received a confidential memorandum and pleadings from him, then declined due to an asserted conflict; separately, recorded conversations between Dershowitz and David Boies are central to the parties’ factual dispute.
- Dershowitz seeks to call Boies and other BSF lawyers as witnesses to prove truth of his extortion-related statements; Giuffre’s Complaint (filed and signed by BSF) alleges those extortion claims are false and includes descriptions of the Boies–Dershowitz communications.
- Court denied Dershowitz’s motion to dismiss: found Giuffre plausibly pleaded actionable republication (so statute of limitations defense failed) and adequately alleged malice/knowledge of falsity to defeat the qualified self-defense privilege at the pleading stage.
- Court granted Dershowitz’s motion to disqualify BSF under the advocate-witness rule: at least some BSF lawyers (notably Boies) are likely necessary witnesses on a central issue, and their expected testimony could be prejudicial to Giuffre, requiring disqualification of the entire firm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of single-publication rule/statute of limitations | Giuffre: 2018–19 statements were new republications aimed at new audiences; timely | Dershowitz: 2015 publications started the limitations period; later identical statements are barred | Court: single-publication rule does not bar suit because 2018–19 statements were affirmative republications to new audiences; dismissal denied |
| Qualified privilege (self-defense/reply) | Giuffre: alleged Dershowitz acted with constitutional malice (knowledge/reckless disregard) so privilege fails | Dershowitz: his replies were privileged self-defense and should bar claim | Court: pleadings sufficiently allege malice/knowledge of falsity; privilege not resolved on 12(b)(6) — denial of dismissal |
| Advocate-witness rule / disqualification | Giuffre: disqualification premature; some disputed evidentiary issues (e.g., settlement privilege) | Dershowitz: BSF lawyers (Boies, McCawley, others) will be necessary witnesses on core extortion claim; firm cannot both advocate and testify | Court: BSF disqualified — Boies and other partners are likely witnesses on significant, prejudicial issues; motion granted |
| Conflict-of-interest (imputation) | Giuffre: challenges to conflicts are untimely or waived | Dershowitz: BSF received confidential info from him and is adverse in a substantially related matter | Court: declined to decide conflict claim because disqualification was required under advocate-witness rule |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for Rule 12(b)(6) motions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Firth v. State, 98 N.Y.2d 365 (2002) (single-publication rule and republication exception for new audiences)
- Liberman v. Gelstein, 80 N.Y.2d 429 (1992) (constitutional malice defined as knowledge of falsity or reckless disregard)
- Murray v. Metropolitan Life Ins. Co., 583 F.3d 173 (2d Cir. 2009) (advocate-witness rule principles and need to show likely testimony and prejudice)
- Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (2d Cir. 2005) (federal courts’ power to disqualify counsel to preserve adversary process)