good morning mr l a very may proceed good morning your honour's and may it please the court my name is joe all of mary and i represent the plaintiff appellant christopher chandler in this case your honors at the most basic level this appeal arises from the district court's improper wing of evidence on summary judgment that denied mr chandler his day in court to rebut false defamatory and highly damaging accusations made against him 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 journalist and prolific author robert berenger who's a rd party to this case that falsely accused mr chandler of among other things engagement in organized crime and espionage the appeal presents a simple and straightforward question with regard to each of those two claims mr chandler's st claim arises from the twenty seven thousand dollars republication by mr injure to the british media of the dossier that defendants authored and previously published only take him the question before this court is whether the district court erred in nine hundred some or a judgment based on its holding as a matter of law that it was not reasonably allegations or repeat the allegations in that dossier when the court absolutely erred in that holding both because it fundamentally misconstrued the law governing the forsee ability analysis and also separately because it failed to consider who is a journalist you talk about evidence but never i don't know if you were represented mr chandler and the trial corporate but there was no deposition of mr brill lend to pin down actually what dispute that it's reasonably forseeable that it just that a journalist may republish defamatory statements that are made to them and the only way we know where imputing knowledge to m 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's counter statement of material facts  stated that mr berlin and defendants didn't fact know these know the mr and or was a journalist and defendants never objected to or accord disputed that fact on summary judgment in addition in tiny prickly into that your honor the record shows that defendants here have decades of experience in the research and investigation industry and they know that their clients seek information from them to use that information defendant's brabham their website which again is it is in the summ y judgment record that their clients and gauge their services to obtain information in order to use it whether it's through the performance of due diligence compliance activities and to pursue had a geisha in the end it's reasonably forseeable that clients using that information would necessarily share it clients don't pay mr berlin to produce reports just to get information to put it in a lockbox and seal it away so that sounds like you think your claim france's simply by mister erlanger having shared the information with the prince why isn't that the beginning and end of your climb well i think that's exactly right as well that there's the republic ation to the prince as well in addition to republic ation to the british media years later the fact the fact of the matter is that under the analysis defendants need not have forseen the precise injury that ultimately happens to the plaintiff or the particular method in which that harm occurs as long as it was reasonably forseeable that the allegations could be republished to some but when i hear the record shows that the defendants did have knowledge or at least there was a fact question as to whether defendants had that knowledge who should have that knowledge that  the allegations in the dossier may be republished if you look also defendant submitted the declaration in this case in which they stated that they told mr enter he needed to verify the information in the dossier before they already had they could take action to verify that that information as a set of hypotheses without without actually sharing the da say but just going back to the cases that you rely on i have a few questions it's striking how long the time is here between berlin given a dossier to enter and the british press getting it aces that support the time of the defense wrongdoing not in hindsight the district court here as your honor recognized in her question said that the most important reason for holding republication on forseeable was for the passage of fourteen years but future would forecast that this information would be shared so far in the future the further you get out more tenuous the objectively reasonable foreseeability become so and it is that not correct so that the length of time is a factor even under your view that we assess from the time of the original transaction respect we know your hon information at this time because he wanted to get work with the prince of monaco not as a journalist and in fact quite the contrary as an and callen gents consultant and in that role in that role it would seem that it's very unlikely that mr and our would want to broadly publish the information he would want to keep it on close hold and use it to impress the prince that he had access to to further information that would be useful to the prince so and this is sort of where i think that the projected time frame 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 dependence based on their knowledge and their experience in the research and investigation industry surely who would've could've looked into mr erlanger before higher before taking him on as a client to make sure that as dependent say on their website absolutely no i'm so can i just ask a different take a different angle on your two thousand and seventeen theory which is you don't allege that  theory this theory we're talking about has to be linked back to two thousand the two thousand and three publication and your theory has to be that the conduct that berlin engaged in in two thousand and three proximately caused all of these damages in two only works that that only works if you if you're right on the point that you are about to come to which is that but the claim based on two thousand and three con didn't never accrued never accrued over all those years because the discovery rule prevented it well that's true what i don't want to make sure clear not conflating the claims that's mr mr chandler nd claim hindsight i just want to probe a little bit more you were alive very heavily on these reporter source cases and you know the relationship between her and berlin was not that of a reporter and a source so how can we even rely on those cases given that what matters is what would be objectively reasonable for a person and balanced circumstance knowing what he knew at the time in two thousand and three supposing that your honor what is put is the factual question here could suddenly take off his journalist that yes he is he engaged defendants to get this information whether it's you know as as a source or as a paid source of information komisar engine need not  or defendants cannot know what to what end he was being engaged they were being engaged provide this information just that they know that that this guy heir injure you know his look is looking for dirt is known to be a journalist is getting sensational allegations here but there is i would say at least a fact question here whether it is reasonably foreseeable that he may republish this these up allegations in the future  district court held that no reasonable juror could find it reasonably forseeable and that's where we submit that there is error ultimately at the end of the day mr chandler who may or may win who 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 how how is it whether is it your position that all chandler needs to prove is that some future republication is foreseeable not this time place manner yet what's your best authority for that broader standard that it that that the foreseeability could be pretty pretty wide open and putting this also information out in the world i lack a sure and says that it's never going to leak out and harm this person and therefore it's a it's a ticking time with regard to your records ticking time bomb scenario i think you have to look at the facts so this isn't a case where a defendant told employ someone in his employ some information where it would be very will to expect a confidence would be kept here you're providing information to a rd party you know who you know is a journalist you know that you're providing explosive allegations that people have a tendency to repeat and you know that you are being hired and paid to provide essentially aapl research on mr chandler and people people pay money to get information like that to use it to share it and it's reasonable those are not defamation or libel cases those are other kinds of toward cases jr i mean i don't know whether it's because of the st amendment overtones but it doesn't seem that the courts have have been as generous with foreseeability provided to get sensational allegations and then sits on it for a period of time like they did here it merely there's not a lot of his father but the principals from present psychiatric institute the principals governing the forsee ability 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 burr len but it seems less so when it comes to imputing knowledge to put mr chandler on inquiry notice why why isn't it the case as the district court held that air injures various republic that matter what the complaint itself does not mention defendants doesn't mention the dossier doesn't pension aaron or working with anyone at all can in fact error in your claims complete credit for that investigation of mr chairman he says why would mr chandler change his mind in that i so i don't i don't think legally it makes a difference for and i hesitate to stupid to speculate on on the record here your honor but i think it would be reasonable course but at that point come it wasn't just some some book self published on mr enders website it was allegations that false allegations that are gaining traction and it compelled mr chandler to step up at that point i also i don't want to leave honey answered your honor nd question about about the reasonable diligence if you were running for a notice which again i don't think that the lawsuit and the book do not put mr chandler an inquiry 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 of the defendants  that and i think the one case that defendant side is holding otherwise the brain case says that with some evidence of wrongdoing so i eat the defendant already knows his is cause of action and here in the chapell situation which is unlike that here secondly though even if mr chandler had sued mr injure there's no guarantee that he would have obtained discovery and that discovery that discovery would have questioned pendants connection to the do brief and i think that that's exactly the point we just don't know the court held as a matter of law d that mr chandler would have found all those facts i know my time is expired i don't want to belabor the point and take up the court's time happy morning mr dan you may proceed one ready i want to provide a minute of context to the to the allegations that have been made against mr bullen now like the court to consider mr chen and his position in two thousand and eighteen when he finally gets his hands on the documents that the press is writing about the guess those documents and he knows erin's or is the author of one of those documents errands or is the person who gave those documents to the press you know that earns or has been saying this stuff about him for years starting all the way back d in two thousand not because earl injured gave those documents to somebody in great britain it's likely that he can sue him injure in great britain with defamation laws are a lot more favorable to the plans of than they are in the us and what a wrong philanthropist to seeking a full fair day in court to restore his reputation which has been sold over and over and over again by l and i think it is more likely an effort to try and extract has proffered false information and you know you may not accept that but you have to provisionally accept that in the current posture so if mr problem has has been the matter if somebody told somebody else in you know nine hundred and sixty five that my great grandfather was a nazi and it didn't come out until i was you know nominated to be a judge but then it becomes something all over the move why would it matter that there was a long passage of time if that information was false when when communicated and because of its character and the circumstances of its having been generated made it objective really foreseeable that it ok but but perhaps i'm just not i'm not sure that you're using your time in the most relevant way by focus well i mean i had pretty much used all the time that i was going to use on that point because the foreseeability points of stuff the mission clearly must have been reasonably foreseeable to the front how how much of it because i thought you were pulling away from that after mr all a very brief said it can't be that it's you know this particular publication and this particular place and these particular time can't be that narrow in the case law doesn't so success so the question whether it's somewhere far down the road this false information that is quite it's a family tory will see the light of day yeah it's relevant that it's far down the road but what does it have to be you yes and in britain two thousand and seventeen of the something called brock's and ask him do you foresee that the entrance of obviously going to be no but the point is this the case law rules as that d did republication must be reasonably for let's let me say this of this no confusion here live in a reply brief the standard that they offer from psychiatric institute of washington is you don't have to force to the precise question that we see is this was in two thousand and three was a clearance of the ordinary prudent online that this report given to one person and one person only marked confidential would somehow not be published by urns or as a journalist but be given by parents or as a source to the press years later in a foreign country in a country that has no these kinds of claims in a report that mr berlin row coming to light it might be but the point is not is is the harm to mr  was that it would be published to media at some point down the road oh i mean i've i have to say th he informed earned your look this is information that i've gotten from databases you've got to go and you've got to verify this you've got to check and see if it's forensic before you rely on it so i don't think that that's necessarily foreseeable but even if it loses the fact of the matter is that giving you to the press of many years later is not forseeable particularly because of their obligation that what  very term pitch i i would think would work against the point you were just making which is that perhaps the understanding was that erin or was supposed to validate before he relied on let's say in having the prince take action against chandler but as a pitch as a teaser it was it not objectively reasonable to anticipate that area or would share with the moreover publication of it fourteen years later at a time when aaron ger is no longer working for the prince at a time when chandler is no longer living in monaco and when there is absolutely in two thousand and three no indication that anybody in great britain will care about this one way or another takes a way beyond the realm of reasonable foreseeability timing is an important issue no case that ever talks about reasonable foreseeability for this long period and the only case that they could come back with to refute is the cause of the case which is a very very different circumstance because in that case the defamatory statement was intended to be released if those charges ever were made well nine years later repeated excuse me nine years later those charges were repeated the statement was used for its intended purpose as light years away from this nobody suggests that giving this report to the press in britain has anything to do with encouraging prince albert to failed but that's a tenuous prospect and presumably if he doesn't succeed and or succeeds only temporarily he'll be thrown back on his primary mode of earning a living which as writing and he did is an ad for sample that he would then repurpose anything that might get broad public attention one of that had as you know just to take your formulation once he's wearing a journalism have again and then so that so the time lag might well be foreseeable in that in that state of affairs and that he would use that information for inquiry notice turns on references to we and to documents i'm not sure i follow that given that if if erring  you know stake out sovereign plaza or go down to the police station to get records that could be a wiki doesn't suggest that there's any other kind of you know center of power  out there nor does the existence of documents suggest anything other than perhaps public record documents oh so am i wrong that that your position depends says is i have documents to support my charges or documents obviously don't create themselves somebody had to create those documents once irwin's or says he has the documents that imposes a duty to invest in don b davis as you have a duty to investigate her affairs and sure earned her says i have documents maybe they're public records maybe there's something else but that had he investigator he would have found out that's correct that's correct and for that we prefer that superpower and fitzgerald both in the very narrow circumstance of what we're dealing with here which is you know you have a cause of action against one person how does rivulets of that cause of action against offenders number one influenced your cause of action against defendant number two and in that narrow republic ation which was reasonably foreseeable just on favorable to you right also assume which is favorable to you that  chandler was on inquiry notice as to erwin says contact in two thousand and three you get an outright dismissal on those two republication you're you're liable for the complication here i guess is that he had an opportunity earlier on to sue for and he forfeited that opportunity or  opportunity to investigate and therefore the star saloon and station ran what i'm struggling with i guess just got to says i'm not sure just in the real world how this would work out if he had s earlier and the statute of limitations has run you know after this whole case then were finished of someone then just what republicans did again i'm not sure how those two would  of the of the restatement i think under the restatement i think it's a principle of subs of the law that is you are liable for a republic ation if the republic has and was reasonably for separate harm if you have a separate publication in a separate harm you could have a separate cause of action if the original publisher had nothing to do you would read that that's correct as long as it was reasonably forseeable that it would be republished if any even if a claim on your original publication would be time that's absolutely right i think that the situation that you see republication come up the most is where the claim of the state of schapelle 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 and the concealment of the defendant's identity  does not hold a statue of limitations here we have the alleged concealment of the entire cause of action the publication of the dossier by defendants it would be as if the defendants in schapelle concealed the car accident rather than just the defendant's identity so i just want to make sure that we keep schapelle and fitzgerald as separate and distinct in our conflating those two with regard to this and you're saying this is not schapelle because in schapelle it is known that there was an actor and just the identity of the actor was what that's about credit here it's just not even clear there is an actor at all correct and even more so in schapelle you knew that there was an death you knew the pause in fact the car accident when you evidence of wrongdoing alleged negligent driving you just didn't know the name of the driver here and mr taylor did not know of the publication o contractor contract a relationship power really different is that why should we assimilate this to the military subordinates rather than the white house independent power center sure the two reasons one in those cases there is 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 in the original publication and then the harm from the subsequent publication but even more so there is no evidence here that defendants in error injure had any relationship whatsoever and in fact defendants disclaim that they say in their declaration the only work that they they worked on together  in the i c i 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  and you heard my question before which was implying that you don't need to show the basis of your hypothesis in the course of verifying in fact it's often more effective than not to them and i'm not sure why mr dan has relied on it more but if i give information i maybe this is just the merits question but i give information to someone and say i heard this it may be completely false but you know here it is you may want to follow up how could i possibly be liable for defamation arising from that information well two things are st i think you're exactly right this is a marriage question this is a fact question whether which way does this disclaimer i think it's reasonable i certainly think my position is reasonable maybe mr dean's position is as well but that becomes a question for the fact finder and nd i think or your your nd question about liability would go to the specifics of the  were a situation where even if it were a situation where someone said i heard this i think i think this might be true it may not i think there's a closer call there then when someone republish is the material as fact to the british media but there that goes to the merits of the defamation claim not the question of whether publication is reasonably forseeable there's an obvious publication element satisfaction there the question becomes is it defamatory as a matter of investigation could very well have referred to mr ender and prince albert our investigation or mr enter into his self described monaco intelligence service is certainly those are reasonable constructions and i was to be even more reasonable even though that's not the standard then defendants involvement here or it seems to me even more effective