view it in the light most favorable to petitioner nor common sense credibility determinations in order to see it it is manifest on the face of the record lost in falsified evidence of greece's involvement with a government officials including imaginary details down of the color of the car as they drove in the content of their license plate those fabrications are themselves sufficient evidence of actual malice to require submission to a jury but even if those fabrications were not enough the case law is clear evidence of actual malice has to be considered in the aggregate and state of mind may be proved with circumstantial   st year but even if all those grounds did not exist the district court decision should not stand in your time standard should not be applied to petitioners claims at the record does not support a determination that mr boucher is either a general malice or not this is a record is what i would have and i'm sorry ken let me just ask you a question maybe to get you kind of going here i mean what about the case law that says you know where there are preexisting reports of fundamentally the same conduct you know that there is some protection against an actual malice allegation and here you've got lots i mean you know you've got two new york times article the rolling stone article and al jazeera report published two books none of which so far as i understand you've ever challenge your honor well st of all defend its position in this case has been rejected by the courts mainly that reliance on on the so called reputable news organizations cannot constitute actual malice as a matter of wall but in this case lawson was in an on involved rd party who had to lacked access to the facts behind the publishe in this case it's lawson had information and he did have information to raise obvious doubts about those sources he didn't rely on those news stories he simply hid behind them now and the below are court and now i mean wouldn't wouldn't we assume that each time you know sort of that allegation gets picked up and repeated that these reputable sources are dotting i's and crossing t's isn't that the point w scope of the fraud that they committed so that those sources had no reason to either credit or doubt the rollies telephone call and frankly the fact that they didn't state it as a fact but rather only only published the contents of that comp conversation is further evidence that they were perhaps unsure at the time but subsequent evidence shows that devotedly is utterly unreliable and la reign to make allegations that he was involved in some other  evidence that any defendant published the challenge statements with knowledge of falsity or any serious doubts as to its accuracy let alone the clear and compelling evidence required the decision below was driven as your honour's have already indicated by the fact that the gist of the challenge statements that plaintiff was involved in corrupt albanian arms deals and associate it with mafia thugs has been widely reported for about a decade before the book at issue was published as the court below found it was old news the plaintiffs never challenge these reports of page one new york times article the damning documentary which included even parliamentary debates on plaintiff's role in corrupt arms deals and that expressively tied the corruption between the dec matter as well as  a matter and those remained available at the time of publication this wealth of previously reported news coupled with the other reports as well standing alone dictated the dismissal of the action even before you got to lawson's further reporting that only provided additional confirmation of the gist of the reports and let me turn if i made to some of the issues raised by my adversary his counsel about plaintiff's arguments he notes that the prior report should not be credited because lawson had reason to doubt mr devereux rowley there's several was with this argument the st is that primarily mr different role a had been either was thought to be involved in fraud or had been convicted of fraud at the time these reports were published that includes the new york meeting that is primarily challenged in this in this and this case the plaintiff tries to rely on the th circuit decision in flowers but that's readily distinguishable where there the defendants were actually involved in the event said issue and were alleged to have been responsible for the misrepresentation through the misleading prior reports here clearly the parties involved including mr lawson had nothing to do with the events at issue at good actor and further to the readers of the book were well informed that there was reasons to doubt mr differ rolly as well as possibly actual malice rather than supports actual malice so for that reason that argument just doesn't stand as well as your honor with regard to the public figure argument that the plaintiff has pressed this is of course st was a question of law for the court below and the undisputed evidence employee supported the finding that mr burris sure was at the very least a limited purpose public figure he was a household name in albania incredibly the plaintiff submitted evidence that he had one hundred percent name recognition and for there had been multiple stories in which he was this played the central role  in the controversy regarding these corrupt i am steele's even a front page article that called it political her roshumba that he was involved and the plaintiff primary argument on public figure is that he never thought this publicity and but as this court found and rose and are you can't prohibit publication or limit the standard based upon the plaintiff's desire to have reporting when you're dealing with rely on here i think is really not distinguishable from the position taken by the eleven circuit where someone is central to a controversy and they have either you know  corrupt people or the like they are can be involuntary public figures i don't even think he's an involuntary public figures given that he had participated and actually encouraged the  that you know it was for the attorney client privilege that was shared you know beyond the attorney client relationship but for the common interests the idea fact the the affidavit from mr karp the editor who was the primary person overseeing this process his affidavit confirms that the book was sent to legal review to have a legal review after the chippers letter was received and in fact he confirms in his affidavit that even if you know one couldn't be sure whether he would or would not bring a suit of course his letter did copy a counsel at the new york times but but mr karp affirmed in his affidavit that they take any such claim seriously and that it was reviewed and then turned over to outside that is correct your honor i think whenever you got a legal claim letter it would trigger such a legal review like this of the entire work to ensure that there were no legal risks but the court can independently the court below found on the attorney client privilege on two separate grounds say found that they were pretty they were privileged under the traditional attorney client privilege or the joint defense or common interest doctrine and this court can affirm under either or both grounds and and we submit that there's simply no evidence that there was an abuse of discretion under either finding most certainly on the attorney client privilege issue here here it was great but why is that that that that the privilege would last and would qualify here under that sort of extension of the extension of the of the privilege thank you your hon yes let me address that and i think it comes under as the court below found that that the attorney client privilege applies to communications with rd parties where the disclosure is in further and so the rendition of the legal services this is also found in the every penny counts and numerous other cases where the come where the proof where the communications are really the search party has critical information that informs the legal analysis and that the legal analysis would affect the fleet be impossible or useless if they were not able to confer with the party and here that was found and i think most particularly on point in the time decision that we rely on extensively in our papers where the movie company was looking to the independent production company as well as the screenwriters the same people who stood in the similar shoes of mr so i guess your position is surely your position isn't that any communication and further of the representation qualifies the privilege that sounds like it could conceivably mean anything and then use that if the person has credible information that seems to limited  and then you said something like if it's truly necessary and indispensable to the to the representation that seems to me further i mean is what you're really asking for in effect sort of a silly generous extension of up and to include the you know maybe for media industry the media industry only these sort of pre release pre publication reviews no your honor not i'm sorry is there another context in which this sort of  extension of the extension as narrowed by you would apply to what are you can tell i'm kind of worried about pandora's box yes i completely understand that and i don't think that well i appreciate your concern i don't think there needs to be a pandora's box issue here this is not a book publisher exception it is a it's an exception or or where you realize the reality of the real world today where many and many companies now deal with independent contractors and freelancers who may be this the people who have the stole possession of the in from a ition at issue that can form the legal analysis this is this was recognized in in my beater by the th circuit where it said that when applying the attorney client privilege to a corporation it is appropriate to distinguish between those on the client's payroll rather it's inappropriate to distinguish between those on the client's payroll and those who are instead employed as independent contractors we're hearing the evidence is indisputable that mr l in the full possession of all the information regarding the sourcing this was the same rationale that went into the timing decision it was the same rationale that when into the davis situation and what that is and in i think is the court below after the found a contrary ruling would put simon and schuster in the untenable position of choosing between preserving the attorney client privilege or ensuring it complied with the law there was no way for the legal review or the lawyer to evaluate this multi one hundred page book independently without getting the information that mr lawson soli possessed so for that reason we don't think this is a broad opening of the of a box of the pentagon spots but rather a very discrete area that we can envision in many corporations now as freelancers an independent contractor has become the norm and that to form two to formally and rigidly apply the privilege would put corporations the overarching problem both defendants analysis and the lower court's analysis is that they cite various exceptions to the attorney client privilege as rationale for why the the communications ought to be privileged but they don't satisfy any of their response in re beater was was was grounded upon the notion that it was grounded upon the notion that the person was the functional equivalent of an employee i mean essentially that it person looks smells and acts like an employee and then and subsequent case on including peter also set forth standards for the terminating whether or not someone i the functional equivalent of an employee in particular the energy capital case one of those factors is whether that possession possessed decision making authority on behalf of the company lost in possessed no decision making authority  command rd capital irrigator both require that the person be responsible for corporate activity the corporate activity that leads to lie billy again lawson was never responsible for corporate i think a better understanding of time is that the court was was grasping at the functional employer equivalent of employee doctrine and in that case the company was in fact an independent contractor who was working at the direction of warner brothers now with respect to with respect to a potential exception for the media industry under these circumstances i would make two points st the supreme court's already for clo has already sport closed that route in her words is lando rejecting an editorial process privilege as to great of an impediment to a point of being able to establish actual malice but even  if they wanted to shield their communications with with respect to say their due diligence on the effectiveness of an airbag or breaks those communications could simply be shielded on that basis i do not if i may i'd also i'd also like to address lawson's reliance so called reliance on the prior record lost in law since fabrications alone are evidence that doubt the prior reporting you would not have felt it necessary to manufacture corroboration of the greased flame if you had actually believed he had enough evidence further knew that that that sourcing was unlikely instead of looking at at inconsistency as a reason that he needed to seek further corroborate simply change the sourcing of the allegation