Case 0:17-cv-60426-UU Document 169 Entered on FLSD Docket 06/04/2018 Page 14 of 22
lawsuit even though the allegations within those pleadings were unproved and contested); Mills
v. Raycom Media, Inc., 34 A.D.3d 1352, 1352, 824 N.Y.S.2d 845, 845 (2006) (same).
And second, a formal proceeding must be underway at the time of publication. See, e.g.,
Abakporo v. Sahara Reporters, No. 10 CV 3256 RJD VVP, 2011 WL 4460547 (E.D.N.Y. Sept.
26, 2011) (refusing to apply the privilege to a complaint sent to law enforcement where the
complaint was not itself government action and did not initiate an investigation); Komarov v.
Advance Magazine Publishers, Inc., 180 Misc. 2d 658, 660 (N.Y. Sup. Ct. 1999) (holding that
the privilege applies “to any pleading made within the course of the proceeding” and “to
affidavits submitted in the proceeding.”).
Where, as here, the parties have submitted the allegedly defamatory materials to the
Court, the Court “may determine as a matter of law whether allegedly defamatory publications
are ‘fair and true’ reports of official proceedings.’” Aguirre v. Best Care Agency, Inc., 961 F.
Supp. 2d 427, 457 (E.D.N.Y. 2013) (quoting Fine v. ESPN, Inc., No. 12–CV–0836, 2013 WL
528468, at *3 (N.D.N.Y. Feb. 11, 2013)). And in making this determination, “the language used
[in the report] should not be dissected and analyzed with a lexicographer’s precision.” Holy
Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 68
(1979).
2. Relationship to Official Proceeding
Without editorializing, the Article accurately reproduces the Dossier, albeit with some
names, including Plaintiffs’ redacted. The issues, thus, are whether an official proceeding
concerning the Dossier was underway when BuzzFeed published it, and whether the Court can
conclude as a matter of law that an ordinary reader would have understood that the Dossier was
the subject of official action. See Aguirre, 961 F. Supp. 2d at 457; Fine, 2013 WL 528468, at *3.
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