giuffre-maxwell
Unknown
17 pages
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S MOTION TO ENFORCE THE COURT’S ORDER AND DIRECT
DEFENDANT TO ANSWER DEPOSITION QUESTIONS FILED UNDER SEAL1
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Motion to Compel Defendant to Answer Deposition Questions. On June 20, 2016, this Court
Ordered Defendant to sit for a second deposition because her refusal to answer questions posed
in her first Deposition (June 20, 2016 Sealed Order, filed in redacted version at D.E. 264-1). Yet,
during her second deposition, Defendant again refused to answer numerous questions regarding
sexual activity related to Jeffrey Epstein in contravention of this Court’s Order. Accordingly, the
Court should direct her to fully answer the relevant questions.
FACTUAL BACKGROUND
As the Court is aware, this defamation case involves Ms. Giuffre’s assertions that she and
other females were recruited by Defendant to be sexually abused by Jeffrey Epstein under the
guise of being “massage therapists.” See Complaint, DE1, at ¶ 27 (Giuffre “described Maxwell’s
role as one of the main women who Epstein used to procure under-aged girls for sexual activities
1
Defendant has labelled her entire deposition transcript as Confidential at this time.
1
and a primary co-conspirator and participant in his sexual abuse and sex trafficking scheme”).
Numerous other witnesses, with knowledge of Defendant’s activities, have testified to the same:
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016, Deposition of
Detective Recarey at pg. 29:11-20. “Q. “Okay. During your investigation, what did you
learn in terms of Ghislaine Maxwell's involvement, if any? THE WITNESS: Ms.
Maxwell, during her research, was found to be Epstein's long-time friend. During the
interviews, Ms. Maxwell was involved in seeking girls to perform massages and work at
Epstein's home.”
See Schultz Decl. at Composite Exhibit 4, Excerpts from June 10, 2016, Deposition of
Rinaldo Rizzo at pg. 52:8. “A. What happens next when Ghislaine Maxwell and Jeffrey
Epstein and a 15-year-old girl walk into Eva Anderson's home? . . . “A. She proceeds to
tell my wife and I that, and this is not -- this is blurting out, not a conversation like I'm
having a casual conversation. That quickly, I was on an island, I was on the island and
there was Ghislaine, there was Sarah, she said they asked me for sex, I said no. And she
is just rambling, and I'm like what, and she said -- I asked her, I said what? And she says
yes, I was on the island, I don't know how I got from the island to here. Last afternoon or
in the afternoon I was on the island and now I'm here. And I said do you have a -- this is
not making any sense to me, and I said this is nuts, do you have a passport, do you have a
phone? And she says no, and she says Ghislaine took my passport. And I said what, and
she says Sarah took her passport and her phone and gave it to Ghislaine Maxwell, and at
that point she said that she was threatened.” Id. at pg. 56:2-24
2
See Schultz Decl. at Composite Exhibit 5, Excerpts from June 1, 2016, Deposition of
John Alessi at pg. 28:6-15. “Q. And over the course of that 10-year period of time while
Ms. Maxwell was at the house, do you have an approximation as to the number of
different females -- females that you were told were massage therapists that came to the
house? THE WITNESS: I cannot give you a number, but I would say probably over 100
in my stay there." Id. at pg. 30:15-25 “Q: Did you go out looking for the girls -- A. No.
Q. -- to bring -- A. Never. Q. -- as the massage therapists? A. Never. Q. Who did?
A. Ms. Maxwell, Mr. Epstein and their friends, because their friends relayed to other
friends they knew a massage therapist and they would send to the house. So it was
referrals.”
In response to Ms. Giuffre’s assertions about Defendant recruiting of females for sexual
purposes, Defendant has made the sweeping claim that Ms. Giuffre’s assertions are “entirely
false” and “entirely untrue.” Complaint, DE 1, at ¶ 31. Accordingly, this Court directed as
follows:
See Schultz Decl. at Exhibit 6, (Emphasis added).
Despite this instruction from the Court, during her deposition, Defendant refused to
answer many questions related to “sexual activity with or involving Jeffrey Epstein, with or
involving Plaintiff . . . or involving or including massage with individuals Defendant knew to be
or believed were known to might become known to Epstein.” The result was that at a number of
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points throughout her deposition, Defendant refused to answer questions about subjects integral
to this lawsuit, including questions about a student, , who Defendant recruited
from her school to give massages to, and have sex with, Jeffrey Epstein under the guise of hiring
her to answer phones.
For example, Defendant refused to answer questions about recruiting for sex
with Epstein:
Q. So is it fair to say that
MR. PAGLIUCA: This has already been testified to Mr. Boies. We are repeating
testimony now.
MR. BOIES: I think in the context of the witness’ answers, these are fair
questions. Now, I’ve asked you before, if you want to instruct her not to answer,
if you want to go to the judge, we are happy to do that, but I would suggest in the
interest of moving it along, that you stop these speeches.
MR. PAGLIUCA: You are not moving it along is the problem, so maybe we
should call the court and get some direction here, because I am not going to sit
here and rehash the testimony we already gave.
MR. BOIES: That’s fin[e]. [At this point a telephone call was placed to Judge
Sweet’s chambers].
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg.78:17-79:14.
MR. BOIES: So how did it happen, Ms. Maxwell,
ended up giving massages to you and Mr. Epstein.
MR. PAGLIUCA: I’m going to instruct you not to answer the question. This has been
previously , the subject of your former deposition, it doesn’t fall into any of the
categories ordered by the court, and so you don’t need to answer that.
Id. at pg.81:15-25.
Defendant’s counsel’s instruction not to answer was improper. This Court’s Order stated:
4
5
In the wake of this specific deposition testimony from , during her own
recent deposition, Defendant continued to refuse to testify about massages and
sexual activity with Epstein:
Q. Did Mr. Epstein pay for the massages that she gave Mr. Epstein?
Mr. Pagliuca: You just asked this question, and I told her not to answer. I will tell her not
to answer again for the same reasons.
Q. Do you know how much Mr. Epstein paid to give massages?
Mr. Pagliuca: Same instruction to the witness. Why do you believe this is within the
scope of the court’s order?
Mr. Boies: Because of the court’s reference to massages, and because I think how much a
girl was paid to give a “massage” goes to whether
there actually was or was not sexual activity involved.
Mr. Pagiluca: The witness has testified there wasn’t.
Mr. Boies: Perhaps it will surprise you, I think it should not, that I do not believe in my
deposition I need to simply accept her characterization without cross-examination. Now
that’s something the judge can decide, but a question as to how much this young girl was
being paid for a “massage,” I think goes directly to the issue of sexual activity.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 82:25-84:6.
Additionally, Defendant refused to answer questions concerning the sexual abuse
involving herself, Mr. Epstein, and , described in a Vanity Fair article:
“What do you have on the girls?” [Epstein] would ask the question over and over again.
What I had “on the girls” were some remarkably brave first-person accounts. Three on-
the-record stories from a family: a mother and her daughters [Maria Farmer, Annie
Farmer, and their mother] who came from Phoenix. The oldest daughter, an artist whose
character was vouchsafed to me by several sources, including the artist Eric Fischl, had
told me, weeping as she sat in my living room, of how Epstein had attempted to seduce
both her and, separately, her younger sister, then only 16. He’d gotten to them because of
his money. He promised the older sister patronage of her art work; he’d promised the
younger funding for a trip abroad that would give her the work experience she needed on
her resume for a place at an Ivy League university, which she desperately wanted - and
would win. The girls’ mother told me by phone that she had thought her daughters would
6
be safe under Epstein’s roof, not least because he phoned her to reassure her, and she
also knew he had Ghislaine Maxwell with him at all times. When the girls’ mother
learned that Epstein had, regardless, allegedly molested her 16-year-old daughter, she’d
wanted to fight back.
“I Tried to Warn You about Sleazy Billionaire Jeffrey Epstein in 2003,” Vicky Ward, January 6,
2015, Daily Beast Article (Emphasis added). Defendant would not answer many questions
concerning her role with in the molestation of these girls while she was sharing a house with
and Jeffrey Epstein:
Q. Do you know whether or not was ever at Mr. Wexner’s property in
Ohio?
Mr. PAGLIUCA: Can you tell me how that relates to this order, counselor?
MR. BOIES: Yes, I think it goes directly to the sexual activity related to
and what Mr. Epstein was doing with . Again, you can instruct not to
answer.
MR. PAGLIUCA: I’m trying to understand why you are asking these questions before I -
MR. BOIES: I’m asking these questions because these are people who not only have
been publicly written about in terms of the sexual activity that they were put into in
connection with Mr. Epstein, but the person who wrote about them is someone who
talked to the witness about it, and I think that this is more than easily understood cross-
examination.
MR. PAGLIUCA: Your question was, do you know whether or not was
ever at Mr. Wexner’s property in Ohio.
MR. BOIES: Yes. And if you let her answer, you will see where it leads. If you won’t let
her answer, the judge is going to determine it. And I just suggest to you that you stop
these speeches and stop debating, because you are not going to convince me not to
follow-up on these questions. If you can convince the court to truncate the deposition,
that’s your right, but all you’re doing is dragging this deposition out.
MR. PAGLIUCA: You have the opportunity to give me a good faith basis why you are
asking these questions.
MR. BOIES: I have given you a good faith basis.
MR. PAGLIUCA: You haven’t.
7
MR. BOIES: Then instruct not to answer.
MR. PAGLIUCA: I am giving you the opportunity to say why you are asking the
questions, and why I’m telling her not to answer and I am entitled to know that.
MR. BOIES: You are not entitled to know why I’m asking the question. You are only
entitled to know that it relates to the subject matter that I am entitled to inquire about, and
I don’t think the judge is going to think that, you know, where Mr. Epstein shipped
off to is outside the scope of what I’m entitled to inquire about.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 99:6-101:20.
Defendant’s counsel also stopped a line of questioning in which Defendant was asked if
she recalled several girls brought over to give a “massage” to Epstein. The Court
will recall that
Accordingly, at Defendant’s recent deposition, Ms. Giuffre’s counsel attempted to follow up on
this subject:
Q. Have you ever heard the name of
A. I don't recollect that name at all.
8
MR. PAGLIUCA: Mr. Boies, those names are on Exhibit 26, which we have already
gone over and she said she didn't recognize those people, so now we are just repeating
things that we went over.
MR. BOIES: I am in the context of seeing if I can refresh her recollection, because these
are women that who she also does not recall, brought over to Mr. Epstein's
residences, and I also want to make a very clear record of what her testimony is and is not
right now.
Again, you can instruct her not to answer if you wish.
MR. PAGLIUCA: I'm trying to get to nonrepetitive questions here. You basically asked
the same question three times. Then we get a pile of notes that get pushed up to you, you
read those. Then you ask those three times, and then we go to another question. So it's
taking an inordinately long amount of time and it shouldn't.
MR. BOIES: I think that is a demonstrably inaccurate statement of what has been going
on, and I attribute -- maybe I shouldn't attribute it at all. But if you want to instruct not to
answer, instruct not to answer. If you don't, again, all I will do is request that you cease
your comments. I can't do that. All I can do is seek sanctions afterwards.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg. 154:20-156:10.
Based on Defendant’s refusal to answer questions related to specific girls, Mr. Boies was
forced to discontinue asking questions about these victims.
Defendant also refused to answer questions concerning the “sexual activities of others . . .
involving or including massage with individuals Defendant knew to be or believed might
become known to Epstein,” when she refused to answer a question about the records she kept of
the young girls who would perform massage and sexual activities with Epstein:
Q. Was there a list that was kept of women or girls who provided massages?
MR. PAGLIUCA: This has been previously deposed on. This is not part of the court's
order, I will tell her not to answer.
MR. BOIES: You are going to tell her not to answer a question that says was there a list
of women or girls who provided massages?
MR. PAGLIUCA: She has been previously deposed on this subject.
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MR. BOIES: I think this is squarely in the court's order, but if you instruct her not to
answer, you instruct her not to answer.
MR. PAGLIUCA: We'll find out.
Id. at pg. 184:14-185:6.
Q. “In 2005, were you aware of any effort to destroy records of messages you had taken
of women who had called Mr. Epstein in the prior period?
MR. PAGLIUCA: Don’t answer that question. It’s outside the court’s order.
Id. at pg. 177:5-11.
Ample evidence in this case establishes that not only did Defendant recruit underage girls
for massage and sexual activities with Epstein, but that she participated in calling the girls;
getting other people to bring girls; talking to the girls; taking massages from and leaving
messages about the girls; and scheduling the girls to come over. Accordingly, questions
concerning written records documenting Defendant’s involvement in, and knowledge of, the
girls who “massaged” Epstein is clearly within the ambit of this Court’s Order. For example, a
message from July of 2004 records Defendant, “Ms. Maxwell,” giving a message to Mr. Epstein
as message from (an underage girl who was 14 years old on the date of the message)
that “ is available on Tuesday no one for tomorrow.” See GIUFFRE001465.
10
See Schultz Decl. at Composite Exhibit 8, Messages Involving Defendant3. In the investigation
of Mr. Epstein’s sex crimes against minors, law enforcement was able to confirm identities of
underage victims through the use of the names recorded these messages, which were recovered
from Epstein’s trash.4 Accordingly, the messages, and the girls described therein, are fully within
the ambit of this Court’s Order.
3
GIUFFRE001523; GIUFFRE001427; GIUFFRE001451; GIUFFRE001454; GIUFFRE001460;
GIUFFRE001461; GIUFFRE001464; GIUFFRE001465; GIUFFRE001436; GIUFFRE001435;
GIUFFRE001472; GIUFFRE001474; GIUFFRE001492; GIUFFRE001553; GIUFFRE001388;
GIUFFRE001555; GIUFFRE001556; GIUFFRE001557; GIUFFRE001392; GIUFFRE001526;
GIUFFRE001530; GIUFFRE001568; GIUFFRE001536; GIUFFRE001538; GIUFFRE001541;
GIUFFRE001546; GIUFFRE001399; GIUFFRE001402; GIUFFRE001405; GIUFFRE001406;
GIUFFRE001449; GIUFFRE001409; GIUFFRE001410; GIUFFRE001411; GIUFFRE00; etc.
4
Palm Beach Police Officer Recarey was deposed about information pulled by police officers
from trash discarded by Epstein from his home:
Q. The next line down is what I wanted to focus on, April 5th, 2005. This trash
pull, what evidence is yielded from this particular trash pull?
THE WITNESS: The trash pull indicated that there were several messages with
written items on it. There was a message from HR indicating that there would be
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Finally, Defendant also refused to answer foundational questions that are necessary to
precede questions authorized by this Court, such as:
“In terms of preparing for this deposition, what documents did you review?” See Schultz
Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at 174:2-4.
an 11:00 appointment. There were other individuals that had called during that
day.
Q. And when you would -- when you would see females' names and telephone
numbers, would you take those telephone numbers and match it to -- to a person?
THE WITNESS: We would do our best to identify who that person was.
Q. And is that one way in which you discovered the identities of some of the other
what soon came to be known as victims?
THE WITNESS: Correct.
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016 Deposition of Detective
Recarey at pg. 42:14-43:17. Recarey went on to describe the importance of the information:
Q. Did you find names of other witnesses and people that you knew to have been
associated with the house in those message pads?
THE WITNESS: Yes.
Q. And so what was the evidentiary value to you of the message pads collected
from Jeffrey Epstein's home in the search warrant?
THE WITNESS: It was very important to corroborate what the victims had
already told me as to calling in and for work.
Id. at 78:25 -79:15.
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In sum, Defendant refused to answer important questions relating to the following topics that
were authorized by this Court’s Order: (1) Defendant’s information relating to and knowledge of
the circumstances of performing massages and sex acts upon Epstein; (2)
Defendant’s information relating to and knowledge of the circumstances relating to the abuse of
by Defendant and Epstein; (3) Defendant’s information relating to
and knowledge of any lists or records of girls who gave “massages” to Epstein; (4) Defendant’s
involvement with messages (or related documents) showing Defendant’s knowledge of, and
involvement in, the scheduling of underage girls for massage and sex with Epstein, and any
destruction of evidence related to these messages (or related records); (5) foundational questions
that were necessary precedent to asking questions authorized by this Court’s Order; and (6) all
related questions that arise out of any response Defendant provides within the parameters of the
Court’s June 20, 2016, Order.
DISCUSSION
The Court should compel Ms. Maxwell to answer questions in the topic areas where she
refused to answer during her recent deposition. Topics 1 - 4 above are central parts of this case,
and Topics 5 and 6 link directly to central parts of this case. Ms. Giuffre, and now other
knowledgeable witnesses, have explained and testified that Defendant not only had knowledge of
Epstein’s massages and sexual activity with others, but she actively facilitated the sexual
massages through recruiting young females and underage girls for the purpose of “massage” and
sexual activity. And proof that Defendant both had knowledge of, and was involved in, these
schemes and encounters, will further help prove that Defendant’s statements to the press that
Virginia’s allegations were “obvious lies” was itself an obvious lie.
13
The questions Defendant refused to answer fall squarely within this Court’s earlier order.
Defendant can have no legitimate basis for obstructing the search for truth by refusing to answer.
The Court should, again, compel Defendant to answer all these questions. See Fed. R. Crim. P.
37(a)(3)(B)(i); see, e.g., Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010 WL 1541585, at
*20 (S.D.N.Y. Apr. 12, 2010) (“Under the Federal Rules, when a party refuses to answer a
question during a deposition, the questioning party may subsequently move to compel disclosure
of the testimony that it sought. The court must determine the propriety of the deponent's
objection to answering the questions, and can order the deponent to provide improperly withheld
answers during a continued deposition” (internal citations omitted)). Of course, the party
objecting to discovery must carry the burden of proving the validity of its objections, particularly
in light of “the broad and liberal construction afforded the federal discovery rules . . . .” John
Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014). For
purposes of a deposition, the information sought “need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Chen-
Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013) (citing Fed.R.Civ.P.
26(b)(1)).
Defendant cannot claim that such questions were outside the scope of this Court’s order,
as they directly relate to (1) her knowledge of individuals who provided “massage” to Epstein
and (2) her knowledge of sexual activities of others with or involving Epstein. Defendant’s
knowledge of the individuals involved in the sex/”massages” relating to Epstein, and her
knowledge about the sex/”massage” related to Epstein is precisely what this Court directed her to
answer. See also, Condit v. Dunne, 225 F.R.D. 100, 113 (S.D.N.Y. 2004) (in defamation case,
“Plaintiff is hereby ordered to answer questions regarding his sexual relationships in so far as
14
they are relevant to a defense of substantial truth, mitigation of damages, or impeachment of
plaintiff.”); Weber v. Multimedia Entm't, Inc., No. 97 CIV. 0682 PKL THK, 1997 WL 729039, at
*3 (S.D.N.Y. Nov. 24, 1997) (“While discovery is not unlimited and may not unnecessarily
intrude into private matters, in the instant case inquiry into private matters is clearly relevant to
the subject matter of the suit. Accordingly, plaintiff Misty Weber shall respond to defendants'
interrogatories concerning her sexual partners . . . .”). Moreover, generally speaking, instructions
from attorneys to their clients not to answer questions at a deposition should be “limited to
[issues regarding] privilege.” Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). In this
case, defense counsel once again ranged far beyond the normal parameters of objections and
gave instructions directly in contravention of this Court’s Order directing Defendant to answer
exactly the type of questions posed to her.
In light of Defendant’s willful refusal to comply with this Court’s Order directing
Defendant to answer questions related to the Court’s June 20, 2016, Order, including topics
enumerated above, Ms. Giuffre also seeks attorneys’ fees and costs associated with bringing this
motion, as well as fees and costs associated with re-taking Defendant’s deposition.
CONCLUSION
Defendant should be ordered to sit for a follow-up deposition and directed to answer
questions regarding the topics enumerated above.
Dated: July 29, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
15
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52025
5
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of July, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
17
giuffre-maxwell
Unknown
21 pages
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S SUPPLEMENT TO MOTION FOR ADVERSE INFERENCE
INSTRUCTION BASED ON NEW INFORMATION
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Supplement to her Motion for Adverse Inference Instruction Based on New Information. Eleven
months into this case, and after the close of fact discovery, Defendant continues to refuse to
abide by her most basic and fundamental discovery obligations. A summary of this ongoing and
willful non-compliance, as well as a supplement to her motion for an adverse inference
instruction based on new information, follows. Most notably, Defendant claims to have run
search terms and reviewed over 10,000 documents, but, remarkably, claims that not a single
document - not one - is relevant to this litigation, and therefore produced nothing with respect to
the search.
I. FACTUAL BACKGROUND
On October 27, 2015, Ms. Giuffre submitted her first set of Requests for Production.
Defendant failed to make a reasonable search or production of her documents, and Ms. Giuffre
sought relief from the Court numerous times:
1
Plaintiff’s Response in Opposition to Defendant’s Motion to Stay Discovery (DE 20)
- Defendant’s Motion to Stay - Denied (DE 28).
Plaintiff’s February 26, 2016 Letter Motion to Compel Defendant to Sit for Her
Deposition (DE 63) - Granted (DE 106).
Plaintiff’s Motion to Compel Documents Subject to Improper Claim of Privilege (DE
33) - Granted in Part (DE 73).
Plaintiff’s Motion to Compel Documents Subject to Improper Objections (DE 35) -
Granted in part (106).
Plaintiff’s Response in Opposition to Defendant’s Motion for a Protective Order
Regarding Defendant’s Deposition (DE 70) - Defendant’s Motion Denied (DE 106).
Plaintiff’s Motion for Forensic Examination (DE 96) - Granted in part (June 20, 2016
Sealed Order).
Plaintiff’s Motion to Compel Defendant to Answer Deposition Questions (DE 143) –
Granted (June 20, 2016 Sealed Order).
Plaintiff’s Motion for Adverse Inference Instruction (DE 279) - Pending.
Plaintiff’s Motion to Enforce the Court's Order and Direct Defendant to Answer
Deposition Questions (DE 315) - Pending.
On June 20, 2016, this Court Granted in Part Ms. Giuffre’s Motion for Forensic Exam,
and directed Defendant to capture her data and run mutually agreed-upon search terms. The
Court also ordered Defendant to produce documents to Ms. Giuffre by July 11, 2016. (This part
of the Court’s Order is not under seal and can be found at DE 264-1). On June 30, 2016, and on
July 8, 2016, counsel for Ms. Giuffre sent letters to Defendant following up on this Order and
proposing search terms (attached as exhibits to DE 279). Defendant did not respond. The July 11,
2016, deadline passed without any production from Defendant.
On July 13, 2016, Ms. Giuffre moved for an adverse inference instruction (DE 279).
Thereafter, the Court denied Defendant’s motion to strike Ms. Giuffre’s motion for an adverse
inference instruction, directing the parties to submit search terms to the Court on August 1, 2016,
advising that “[a] briefing schedule and the submission date will be set after search terms are
determined.” (DE 301).
Pursuant to this Court’s July 22, 2016, on Monday, August 1, 2016, Ms. Giuffre filed the
list of search terms that Ms. Giuffre believes should be run over Defendant’s data. (DE 323).
2
II. DISCUSSION
At a minimum, the Court should direct Defendant to run the search terms in the list
originally submitted by Ms. Giuffre. More broadly, the Court should grant Ms. Giuffre’s request
for an adverse inference based on the incurable prejudice she has suffered as a result of
Defendant’s failure to comply with her discovery obligations and this Court’s June 20, 2016,
Order.
A. Defendant’s Refusal to Even Run Ms. Giuffre’s Name as a Search
Term.
Defendant has been recalcitrant in running even the most basic searches of electronic
data. For example, in a letter sent on June 8, 2016, and in a meet and confer call on July 26,
2016, counsel for Ms. Giuffre asked Defendant to run Ms. Giuffre’s name as a search term to
find documents responsive to (for example) Ms. Giuffre’s Request No. 12, which sought
Defendant’s documents relating to Ms. Giuffre. That request was refused in writing on Friday,
July 29, 2016, at 7:02 p.m. (EST). See McCawley Decl. at Exhibit 1, July 29, 2016, 7:02 p.m.,
Letter from Ty Gee to Ms. Schultz (refusing to run Ms. Giuffre’s name as a search term as part
of effort to identify responsive documents). Specifically, Mr. Gee’s letter said that such a search
term was inappropriate because it was “guaranteed” to generate “thousands of hits”:
3
Having represented that running Ms. Giuffre’s that name was an “extraordinary and
unreasonable” task “guaranteed to have thousands of hits, and someone would have to review
every hit …” (McCawley Decl. at Exhibit 1 at pg. 2 (emphasis added)), a mere three days later,
on Monday, August 1, 2016, Defendant seemingly reversed her position, and represented to the
Court that she had, in fact, run Ms. Giuffre’s names as search terms. (DE 321-6). But, contrary to
the previous claim that it would be enormously burdensome to sort through these “hits,”
Defendant now claimed that she had not found any responsive documents.
It is possible that Defendant changed her mind over the weekend and reversed course.
And, it is possible that Defendant did run those recently-contested terms over the weekend. And,
it is possible that Defendant, over the weekend, gathered a team of lawyers to review the
“thousands of hits” yielded by those terms. And, it is possible that not a single one of
Defendant’s thousands of documents bearing Ms. Giuffre’s name was relevant to this action. All
these things are possible, but none is likely.
Either way, Defendant’s refusal to even include Ms. Giuffre’s name as a search term
(either in reality or in the position she took on Friday) is evidence of Defendant’s continued bad
faith and complete avoidance of her discovery obligations. The case centers on Defendant’s
4
defamatory statements made about Ms. Giuffre. Obviously, Ms. Giuffre has a compelling need
to obtain Defendant’s documents about her, and she has accordingly requested Defendant’s
communications concerning her. Defendant’s documents concerning Ms. Giuffre are directly
relevant to this action, particularly because Defendant has created multiple drafts of statements to
the press defaming Ms. Giuffre.
Throughout the months of motion practice concerning these issues, and throughout all of
the meet and confers, Defendant’s counsel has never presented a case supporting the far-fetched
position that documents in the possession of the Defendant, and containing explicit references to
Ms. Giuffre, are irrelevant and not subject to discovery. Defendant’s refusal to use Ms. Giuffre’s
name as a search term, in light of Ms. Giuffre’s requests for production, and in light of the
defamation claim in this case, is so unfounded and obstructionist that it constitutes a violation of
this Court’s Order, whether or not Defendant actually engaged in the “extraordinary and
unreasonable” task of running the term over the weekend.
The refusal to run this term is particularly inappropriate in light of this Court’s order
directing the Defendant to run “mutually agreed” upon search terms. It is impossible for Ms.
Giuffre’s counsel to begin working with opposing counsel to craft appropriate search terms when
they refuse to extend minimal cooperation - first by completely ignoring Ms. Giuffre’s multiple
attempts to negotiate terms, then by ignoring the deadline to produce documents, and then by
refusal to run the most basic search term. The first term that should be run in this defamation
action - the most fundamental term - is Ms. Giuffre’s name. Defendant’s refusal to run that term
is palpably unreasonable.
Defendant’s refusal to cooperate is even more egregious given Ms. Giuffre’s extensive
efforts to provide discovery to Defendant. Ms. Giuffre has complied with Defendant’s overly-
5
broad discovery requests that sought documents concerning dozens of individuals, including Ms.
Giuffre’s close family members. To comply with these extraordinarily broad requests, Ms.
Giuffre ran search terms constituting the names of all these individuals. For example, Ms.
Giuffre has run the following names as search terms, including Defendant’s name, over her data:
Ghislaine (the defendant)
Maxwell (the defendant)
Jeffrey (Jeffrey Epstein)
Epstein (Jeffrey Epstein)
)
Indeed, to date Ms. Giuffre has produced 8,321 pages of documents in her possession.
Fact discovery has now closed. Ms. Giuffre has requested that Defendant negotiate search
terms with her as far back as March 10, 2016. This Court ordered Defendant to run mutually
agreed upon search terms and produce relevant documents. Yet Defendant has yet to make any
document production pursuant to this Court’s June 20, 2016, Order.
B. Defendant’s Other Failures to Produce Documents
Defendant’s ignoring the July 11, 2016, court-ordered deadline to produce documents
pursuant to mutually agreed upon terms, and Defendant’s recalcitrance in searching for
documents related to Ms. Giuffre are not the only examples of Defendant’s failure to make
appropriate discovery. Defendant claims to have run a number of Ms. Giuffre’s search terms, yet
claims that such a search yielded no responsive documents, save the few added to Defendant’s
privilege log. Defendant did not provide any “hit” information to show which terms yielded
results, or how many results they yielded. Defendant claims to have reviewed over 10,000
6
documents containing the search terms and remarkably states that none – not a single one of the
documents are responsive or relevant to the issues in this matter. Defendant’s representation is
simply implausible, as a review of Defendant’s interactions with several of the important players
in this case makes clear.
i.
:
Q. And then below there is an email from to you and cc'ing
on January 11, 2015. Do you see that?
A. Uh-huh.
Q. It says, Dear Ghislaine, as you know I have been working behind the scenes and
this article comes from that. It helps but doesn't answer the VR claims. I will get the
criminal allegations out. This shows the MOS will print truth, not just a VR voice
piece. We can only make the truth by making a statement. What did he mean when he
said, I will get the criminal allegations out, what was he referring to?
A. I have no idea.
Maxwell Dep. Tr. at 405:13-406:7 (April 22, 2016) (McCawley Decl. at Exhibit 2).
:
Q. This is an email from you on January 10, 2015 to .
The statement you had before you earlier, that, if you can pull that in front of you, the
one page press release that you gave. You might know from memory. Was the press
release that you issued with the statement about Virginia issued in or around January
2, 2015?
A. As best as I can recollect.
Maxwell Dep. Tr. at 361:4-13 (April 22, 2016) (McCawley Decl. at Exhibit 2).
7
Q. Did you authorize to issue that statement on your behalf in January of
2015?
A. I already testified that that was done by my lawyers.
Maxwell Dep. Tr. at 273:6-10 (April 22, 2016) (McCawley Decl. at Exhibit 2).
In both years, 2011 and 2015, Defendant communicated with her counsel, communicated
, and caused a statement regarding Ms. Giuffre to be released
publically, whereupon it was disseminated abroad. Yet, Defendant claims that she has no
communications related to Ms. Giuffre beyond the handful of communications this Court
ordered her to produce after the Court’s in camera review. (DE 73).
ii.
.
Q. Is one of your friends?
A. Yes.
Maxwell Dep. Tr. at 57:22-23 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Q. You remember from time to time being at , correct?
A. I do.
Maxwell Dep. Tr. at 163:6-8 (July 22, 2016) (McCawley Decl. at Exhibit 3).
8
iii.
:
Q. Do you remember speaking with a female by the name of ?
A. Yes.
Q. And is that -- did you learn from about ?
THE WITNESS: That's correct.
Q. And what did you understand interaction with Jeffrey Epstein to
be?
THE WITNESS: was allegedly dating Jeffrey Epstein at the time. And
s and were roommates. During that time, had met with and
went shopping with her at the Palm Beach Mall, where they purchased items from
Victoria's Secrets. After spending the day together, they went over to the Palm Beach
house, where Epstein requested to see what was purchased. She was a little reluctant
initially, but because of the fact that it was his money that purchased the items, she
showed the outfit that she had purchased at Victoria's Secrets. He had asked her to try
it on, at which time she did. She went back to the house at another time, where she
was going to meet with and Epstein. They went for a bike ride, but had a
9
massage, which Epstein walked in on while she was getting a massage. He asked her
to turn over, expose her breasts to him. I think he performed a chiropractic move on
her. And she was completely uncomfortable with the whole situation.
Recarey Dep. Tr. at 106:2-107:20 (June 21, 2016) (McCawley Decl. at Exhibit 5).
Indeed, one of the witnesses who gave testimony in this case,
Even Defendant has admitted involvement with her and Epstein:
Q. Does know Jeffrey Epstein?
A. Can you ask again, please?
Q. Does know Jeffrey Epstein?
A. What do you mean by know?
Q. Has she met her him before?
A. I can't recollect a time when -- I've seen with Jeffrey but --
Q. You are not sure --
A. I know they know either other. I can't testify to a meeting between them.
Maxwell Dep. Tr. at 270:18-271:8 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Q. Why do you think that might know Jeffrey?
10
A. Because you know, I know Jeffrey.
Maxwell Dep. Tr. at 271:18-22 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Yet, Maxwell now wants this court to believe that she has no responsive communications
with relevant to this case.
C. Defendant’s Failures to Search All Email Accounts
Perhaps part of the reason that Defendant has failed to produce responsive document is that
still refusing to collect data from all of her email accounts. In particular, Defendant has not
collected data from her account nor produced relevant documents from
her account. Both email accounts are listed as part of Defendant’s
contact information gathered by the police from Epstein’s home, and turned over to the Palm
Beach County State Attorney as part of the investigation and prosecution of Epstein:
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843).
i. The mindspring.com Account
As evidenced from the police collection above, , was an email
address Defendant used while she was with Epstein. Id. In her filing with this Court, Defendant
represented that this was merely a “spam” account “to use when registering for retail sales
notifications and the like,” and that it contains no relevant documents. Br. at pg. 8. Of course, if
she wasn’t using the or the , what email address
was Defendant using while she was with Epstein, and why hasn’t that account been disclosed
and searched? This Court should order Defendant to disclose all email accounts she has used
from 1999 to the present.
11
At any rate, both recent testimony in this case, and older testimony in a related case,
completely belies Defendant’s claim that her account was merely for
“spam.” Jeffrey Epstein’s house manager, Juan Alessi testified that was in
daily use by the Epstein household to send and receive messages, a household to which
Defendant belonged:
Q. So when there would be a message from one of them while they were out of town,
they would call you, call you on the telephone?
A. I haven't spoken to Ghislaine in 12 years.
Q. Sorry. I'm talking about when you worked there and you would receive a message that
they were coming into town, would that be by way of telephone?
A. Telephone, and also, there was a system at the house, that it was MindSpring,
MindSpring I think it's called, that it was like a message system that would come from
the office.
Q. What is MindSpring?
A. It was a server. I think it was -- the office would have, like, a message system
between him, the houses, the employees, his friends. They would write a message on the
computer. There was no email at that time.
Q. Okay. So what computer would you use?
A. My computer in my office.
Q. And so was part of your daily routine to go to your computer and check to see if you
had MindSpring messages?
A. No. That was at the end of my stay. That was the very end of my stay. I didn't get
involved with that too much. But it was a message system that Jeffrey received every
two, three hours, with all the messages that would have to go to the office in New York,
and they will print it and send it faxed to the house, and I would hand it to him.
Q. Did it look like the message pads that we've been looking at?
A. No, no, nothing like that.
Q. Was it typed-out messages?
12
A. Yes, typed-out messages.
Q. Just explain one example of how it would work. Let's say that Ghislaine wanted to
send him a message on MindSpring. How would that work?
A. An example?
Q. Sure.
A. It got so ridiculous at the end of my stay, okay? That Mr. Epstein, instead of talking
to me that he wants a cup of coffee, he will call the office; the office would type it; they
would send it to me, Jeffrey wants a cup of coffee, or Jeffrey wants an orange juice out
by the pool.
Q. He would call the office in New York. They would then type it in MindSpring?
A. Send it to me.
Q. How would you know to check for it? How would you know to look for this
MindSpring?
A. Because I was in the office. I was there. I was there. And we have a signal when it
come on and says, Hey, you've got mail.
Q. Okay.
A. Every day. Every day it was new things put in. That's why I left, too.
Q. Do you know who set up the mind spring system?
A. It was a computer guy. It was a computer guy who worked only for
Jeffrey. .
Q. Was he local to Palm Beach?
A. No. He was in New York. Everything was set up from New York. And
I remember he came to Palm Beach to set up the system at the house.
Alessi Dep. Tr. at 223:5-225:17. (June 1, 2016) (McCawley Decl. at Exhibit 7). Accordingly,
mindspring was a server set up for Jeffrey Epstein and his household to use to communicate to
one another, and was, in fact, used in this manner.
13
14
Defendant’s email account was part of Epstein’s
account through which he communicated with his employees and other members of his
household, including his co-conspirators , and the Defendant.
This email account likely has (or had) myriad of communications between and among Defendant
and Jeffrey Epstein, Defendant and , Defendant and , and others.
This email account is the one most likely to have the most relevant documents in this case, as it
was used by Jeffrey Epstein and his sex trafficking organization. The fact that this account - an
account created for the sole purpose of enabling Defendant and others to communicate with
Jeffrey Epstein - has no communications with Epstein or the other co-conspirators, is extremely
strong indicia that someone destroyed those email communications. Their destruction warrants
an adverse inference instruction. And, at the very least, the Court should direct Defendant to
retrieve her data from the Citrix server or any other applicable server upon which the
mindspring.com account was hosted.
ii. The Account
The account bears Defendant’s initials, and, again, listed as part of
her contact information gathered by the police from Epstein’s home, and turned over to the Palm
Beach County State Attorney as part of the investigation and prosecution of Epstein:
15
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843)
Because of Defendant’s refusal to search this important email account, any production
yielded from any search terms will necessarily be incomplete. Indeed, this failure is particularly
prejudicial, as this account appears to be the one she used while she was with Epstein, and
therefore, the one she used during the time period Defendant was abusing Ms. Giuffre.
Defendant does not appear to have pursued access to this account very far. This inaction
lies in stark contrast to Ms. Giuffre’s efforts to recover data. Ms. Giuffre has sent executed
releases to Microsoft for her inaccessible account, and even issued a Rule 45 Subpoena to
Microsoft for the production of her account data. See McCawley Decl. at Exhibit 9, Microsoft
Subpoena. At a minimum, the Court should direct the Defendant to take these steps to access the
earthlink.net email account.
D. An Adverse Inference Instruction is Appropriate.
In light of this clear and persistent pattern of recalcitrance, the Court should instruct the
jury that it can draw an adverse inference that the Defendant has concealed relevant evidence.
Defendant has yet to provide responsive information. And even if Defendant were, at this late
date, to run Ms. Giuffre’s proposed search terms over her data (which has not yet been
collected), such a production would be both untimely and prejudicial. Fact discovery has closed.
Numerous depositions have already been taken by Ms. Giuffre without the benefit of these
documents. The window for authenticating the documents through depositions has shut. Expert
reports are due at the end of the month, and Ms. Giuffre’s experts do not have the benefit of
reviewing these documents. Late production of information robs Ms. Giuffre of any practical
ability to use the discovery.
16
The Second Circuit has stated, “[w]here documents, witnesses, or information of any
kind relevant issues in litigation is or was within the exclusive or primary control of a party and
is not provided, an adverse inference can be drawn against the withholding party. Such adverse
inferences are appropriate as a consequence for failure to make discovery.” Bouzo v. Citibank,
N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendant’s
continued systemic foot-dragging and obstructionism – even following the Court’s June 20 order
– makes an adverse inference instruction with regard to Defendant’s documents appropriate. An
adverse inference instruction is appropriate when a party refuses to turn over documents in
defiance of a Court Order. See Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005
WL 1026461, at *1 (S.D.N.Y. May 2, 2005) (denying application to set aside Magistrate Judge
Peck’s order entering an adverse inference instruction against defendant for failure to produce
documents that the Judge Peck had ordered Defendant to produce). Accordingly, because a
“party’s failure to produce evidence within its control creates a presumption that evidence would
be unfavorable to that party” an adverse inference should be applied with respect to Defendant’s
failure to produce “in order to ensure fair hearing for [the] other party seeking evidence.” Doe v.
U.S. Civil Service Commission, 483 F. Supp. 539, 580 (S.D. N.Y., 1980) (citing International
Union v. NLRB, 148 U.S. App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41 (D.C.Cir.1972)).
“An adverse inference serves the remedial purpose of restoring the prejudiced party to the
same position he would have been in absent the wrongful destruction of [or willful refusal to
produce] evidence by the opposing party.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 222
(S.D.N.Y. 2013) (granting an adverse inference when defendants refused to produce documents
pursuant to the District Court’s order). Where “an adverse inference ... is sought on the basis that
the evidence was not produced in time for use at trial, the party seeking the instruction must
17
show (1) that the party having control over the evidence had an obligation to timely produce it;
(2) that the party that failed to timely produce the evidence had ‘a culpable state of mind’; and
(3) that the missing evidence is ‘relevant’ to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.” Id. (citing Residential
Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
Furthermore, as discussed in detail in Ms. Giuffre’s Motion for an Adverse Inference
Instruction (DE 315), an adverse inference is appropriate regarding the documents that
Defendant is withholding under the Second Circuit’s test set forth in Residential Funding.
Defendant has admitted to deleting emails as this Court noted in its Order. Defendant has not
collected what data remains from at least half of her email accounts. An adverse inference is
equally appropriate if the non-compliance was due to Defendant’s destruction of evidence. See
Brown v. Coleman, 2009 WL 2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (“Where a party violates a
court order—either by destroying evidence when directed to preserve it or by failing to produce
information because relevant data has been destroyed—Rule 37(b) of the Federal Rules of Civil
Procedure provides that the court may impose a range of sanctions, including dismissal or
judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment
of attorneys' fees and costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp. v. DeGeorge
Financial Corp., 306 F.3d 99, 106–07 (2d Cir.2002)”). See also Essenter v. Cumberland Farms,
Inc., 2011 WL 124505, at *7 (N.D.N.Y. Jan. 14, 2011); and Rule 37(e), Fed. R. Civ. P. (“If
electronically stored information that should have been preserved in the anticipation or conduct
of litigation is lost because a party failed to take reasonable steps to preserve it . . . the court: (2)
only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation may: (A) presume that the lost information was unfavorable to
18
the party; (b) instruct the jury that it may or must presume the information was unfavorable to
the party; or (C) dismiss the action or enter a default judgment.”).
The Court may also wish to consider the possibility of a having a neutral, third-party
expert review Defendant’s production. In her filing with the Court on Monday, August 1, 2016,
Defendant represented that she ran hundreds of search terms - including the names of people
involved in the sex trafficking ring with whom she still associates in the present - and got zero
“hits” for any of them. That is strong indicia that Defendant intentionally deleted documents.
This strongly suggests that relevant documents either lie in the two email accounts that were not
searched or Defendant has deleted these communications. Defendant does not state that the
individual who examined Defendant’s devices attempted to recover Defendant’s deleted email
and other documents, or attempted to identify if and when a hard drive was wiped.
In these circumstances, the Court should allow an independent forensic expert review the
computer and all her email accounts to determine whether responsive materials exists and have
either not been produced or have been deleted. The Court could then use that information in
determining whether an adverse inference is appropriate.
III. CONCLUSION
For the reasons set forth above, Ms. Giuffre respectfully request that this Court grant her
motion for an adverse inference jury instruction pursuant to Rule 27(b), (e), and (f), with respect
to the electronic documents and electronic communications that this Court Ordered her to
produce, allow a forensic review of her computer to evaluate whether material was intentionally
deleted; and direct Defendant to recover any remaining mindspring.com data from the applicable
server.
Dated: August 8, 2016
19
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52022
2
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
20
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 8th day of August, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
21
giuffre-maxwell
Unknown
35 pages
Case 1:15-cv-07433-LAP Document 66 Filed 03/23/16 Page 1 of 35 1
G3hdgium
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 VIRGINIA L. GIUFFRE,
4 Plaintiff, New York, N.Y.
5 v. 15 Civ. 7433(RWS)
6 GHISLAINE MAXWELL,
7 Defendant.
8 ------------------------------x
9 March 17, 2016
2:18 p.m.
10
Before:
11
HON. ROBERT W. SWEET,
12
District Judge
13
APPEARANCES
14
BOIES, SCHILLER & FLEXNER LLP
15 Attorneys for Plaintiff
BY: SIGRID S. McCAWLEY
16
HADDON MORGAN AND FOREMAN, P.C.
17 Attorneys for Defendant
BY: JEFFREY PAGLIUCA
18 LAURA A. MENNINGER
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1 THE COURT: Thank you all very much. I'm sorry for
2 the inconvenience that I have imposed upon you. I'm sorry
3 about the inconvenience that you have imposed upon me.
4 But having said all of that, this really is the first
5 time that we've had an opportunity, I think, to get together on
6 this case. And let me just say, I think -- I mean, I'm not
7 sure but I think I understand the difficulties of this case.
8 There is an emotional element, obviously, throughout the case
9 on both sides, and I understand that. Fortunately, we're
10 blessed by excellent counsel and it would be nice if they can
11 avoid adopting the emotional flavor of their clients, and I
12 presume that they will be able to do that, it certainly will
13 help, because these issues are going to be difficult and I'm
14 well aware of it.
15 Now, at the outset, there is some discussion in these
16 papers about meet and confer. Let me make clear what I would
17 like from this day forward. On any discovery issues, I would
18 like to have a meet and confer. Now, I understand that defense
19 counsel are living in God's country and they're not cursed with
20 the metropolitan residence. I salute their good judgment in
21 that. And so I will say that I will not require you to meet in
22 person, but I will require you to meet.
23 And I would say this. If you have a meet and confer,
24 I would like to have correspondence between the parties as to
25 what the subject is so that there is an agreed agenda that's
SOUTHERN DISTRICT REPORTERS, P.C.
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1 written and we know that both sides know what it is, and that
2 will help me if, ultimately, the problem gets back to me. So I
3 would say exchange writing as to what it's going to be and have
4 a meeting. It doesn't have to be in person, but it certainly
5 has to be a significant meeting; it can't be just one
6 ten-minute telephone call.
7 So that's how I feel about the meet and confer.
8 Now, I'm not going to get into whether that's relevant
9 or not to the problems which we face today. That's just going
10 forward. As I say, I do hope that you all can -- it won't be
11 easy, but if you deal with these problems as the excellent
12 professionals that you are without the emotional implications,
13 having said that.
14 Now, how to go forward today? My thought is the
15 following. I have read your papers, and to say that I
16 understand the problems would be, I guess, a lie, but I'm
17 trying and you'll help me. I have a list of what I think our
18 issues are and I would like to go through this with you, and
19 then when I'm finished, if we have missed something, I'm sure
20 you will correct me. And I'd be pleased to hear if I determine
21 something, if you think that I'm wrong, that's fine, too. I
22 mean, you can tell me why you think I'm wrong.
23 Now, the first problem is the document -- the issue
24 about improper privilege claims. As I understand that issue,
25 it is the presence of Gow, Cohen and maybe somebody else as
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1 defeating the privilege, on the one hand. On the other hand,
2 the assertion by the defense that their participation as
3 whatever they are, managers, public relations people, whatever,
4 is necessary for the rendering of legal advice.
5 Parenthetically, there is a subtext there about whose
6 law applies. Let me say, I think we are going to apply New
7 York law in this case. British law may become relevant in some
8 way or other down the road, but for this privilege purpose, I
9 think that's where we are.
10 I think what I would like is I would like any
11 materials that -- the obligation to establish this privilege is
12 obviously Ms. Maxwell's, and I would like any materials that
13 she wants to present to me about these meetings to establish
14 that it was necessary for the rendering of legal advice, I'll
15 review those materials in camera and try to reach a decision.
16 I may need something further after I have looked at them, but I
17 think that's the way I ought to deal with that particular
18 privilege issue.
19 There is a list of documents as to which objections
20 have been made on a variety of bases. I will say probably a
21 catalog of every objection known to the mind of excellent
22 attorneys, and I think we will try to deal with those this
23 afternoon and maybe we'll fail, but let's put those aside just
24 for the moment.
25 The question about a protective order, of course there
SOUTHERN DISTRICT REPORTERS, P.C.
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1 should be a protective order in this case. You are good
2 lawyers and you have been around this track more times than I
3 have and so you can prepare consensually a better protective
4 order than I can, and I urge you to do that. And, in fact, I
5 will give you two weeks to do that. Should you fail, you can
6 present whatever materials you wish to me and I will decide
7 what the protective order is going to be. That's not a good
8 idea because you know the case better than I do, obviously, and
9 so I urge you to resolve it by your litigation skills and not
10 leave it up to the ignorant district court judge who doesn't
11 really get into this kind of thing very often. So you run a
12 risk if you leave it to me.
13 Now, I would say two weeks, and then if you can't get
14 an agreement, maybe three weeks from now we wrestle with that.
15 Hopefully we won't. I have to do that.
16 The deposition -- the defendant of course will be
17 deposed, and we can work out right now when. Obviously, you
18 don't want that deposition until the protective order is
19 completed. So what do we do about that? Do you want to deal
20 with that today, the actual date of the deposition, or should
21 we pass that until we accomplish the protective order? What do
22 you all think about that?
23 MS. McCAWLEY: Can I be heard on that, your Honor?
24 This is Sigrid McCawley. I am counsel for Ms. Giuffre.
25 With respect to the deposition date, the 25th was the
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1 date that my opposing counsel proposed as possibly being
2 available. So we set it for that date, which is next Friday.
3 We also offered to hold that deposition transcript confidential
4 until such time as the protective order could be issued so that
5 there is no barrier to us being able to take this deposition.
6 THE COURT: How about that? Is that OK?
7 MR. PAGLIUCA: Frankly, it is not, your Honor, and the
8 reason is we, clearly from the papers submitted so far and the
9 exchange of counsel, we have a significant disagreement at this
10 point as to what the word "confidential" actually means, and we
11 have proposed to the plaintiff a protective order that we
12 believe is appropriate and neutral --
13 THE COURT: Well, maybe I can -- can we get over -- if
14 that's the primary issue on the protective order, can we deal
15 with that now?
16 MR. PAGLIUCA: I think there is a secondary -- well,
17 it may not even be secondary. There is another issue that is
18 directly related to that, your Honor, and that is the lack of
19 production of documents from the plaintiff. The Court has not
20 seen these papers yet, but there are in my view significant
21 deficiencies with the Rule 26 disclosures. There have been
22 failure to produce documents. And it is unfair at this point
23 to push these depositions forward without the required exchange
24 of discovery.
25 THE COURT: Let me ask the plaintiff. You really --
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1 MS. McCAWLEY: Could I be heard on that? Thank you,
2 your Honor. I'm sorry, I didn't mean to interrupt you.
3 THE COURT: What do you think?
4 MS. McCAWLEY: Right. The issue is so I issued my
5 deposition notice before they even served discovery requests.
6 THE COURT: OK. All right.
7 MS. McCAWLEY: I've done 3,000 pages. They've done
8 two emails.
9 THE COURT: Look, doesn't it make sense to resolve any
10 document discovery issues perhaps before the deposition?
11 MS. McCAWLEY: I don't think so, your Honor. I want
12 the testimony of this defendant in order to move this case
13 forward. Our discovery closes in July. I issued my discovery
14 requests in October. I have not gotten the deposition of the
15 defendant yet. This is a date she is available. She is not
16 leaving the country. She is not going anywhere. I have her in
17 town next Friday.
18 I'll even agree to their protective order if it means
19 I can get her deposition, your Honor. I just need to get this
20 case moving forward. I need one deposition, the deposition of
21 the defendant in this case, who has called my client a liar.
22 We are entitled to depose her and see if she is going to answer
23 the questions about why she was --
24 THE COURT: All right. OK.
25 MS. McCAWLEY: I am entitled to answers.
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1 THE COURT: Well --
2 MR. PAGLIUCA: Your Honor, I think this is a good
3 meeting and it is a meeting that should have happened a long
4 time ago. Let me say to the Court that we proposed to meet
5 with plaintiff's counsel early on in this case to put together
6 a discovery schedule that made sense. We proposed that orally
7 and in writing. That proposal was ignored and rebuffed. And
8 counsel for the plaintiff then unilaterally scheduled a bunch
9 of depositions without conferring on dates. Unilaterally,
10 here's the dates, here are the depositions. We then tried to
11 work through that issue, at the same time trying to work
12 through the protective order issue and the document issue, and
13 we get no response. And I think the agenda here is to gain a
14 tactical advantage by not responding to these requests.
15 THE COURT: Well, I can't believe that lawyers would
16 seek a tactical advantage. I can't believe such a thing.
17 MR. PAGLIUCA: I am shocked.
18 THE COURT: OK. Tell you what we're going to do.
19 We'll -- three weeks, let's see. Her deposition -- this
20 question about document production, that hasn't been teed up,
21 so I don't know --
22 MS. McCAWLEY: And can I be heard on that really
23 quickly? I mean, If that were the standard, that they could
24 wait to --
25 THE COURT: No. It hasn't been teed up, I agree.
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1 (Pause)
2 OK. Then I think what we should do is I'm assuming we
3 will resolve the protective order problem -- we've sort of slug
4 over the -- can we resolve what's confidential? Is that
5 possible? Could we do that this afternoon, or is that too
6 complicated?
7 MS. McCAWLEY: Your Honor, I can have the deposition
8 of the defendant in this case and move this case forward. I
9 will agree to their protective order. I just want that
10 deposition.
11 THE COURT: Yes.
12 MS. McCAWLEY: It is that important to me.
13 THE COURT: I get your point. I understand that. But
14 at the same time, I think, given the nature of all that lies in
15 this, I think it is fair to say no side would like to have this
16 aired, and so we've got to have a protective order that
17 everybody feels comfortable with.
18 MS. McCAWLEY: Your Honor, you can today enter the
19 protective order that they submit. I will disregard my
20 objections if I get the deposition.
21 THE COURT: Will you agree now to the protective
22 order?
23 MS. McCAWLEY: Yes. If it means I can get her
24 deposition, yes, I will do that.
25 THE COURT: Oh, OK. Good. Well, that solved that.
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1 MR. PAGLIUCA: It is not as simple as that, your
2 Honor, because this quid pro quo, I'll agree to their
3 protective order if I can have the deposition on the 25th,
4 doesn't solve the problem.
5 THE COURT: At least we've separated it. She has
6 agreed to the protective order. OK? So that's done. OK?
7 Now, why can't we have her deposition upon, whatever
8 it is, a week from Friday?
9 MS. McCAWLEY: Friday, the 25th, this coming Friday, a
10 week from tomorrow.
11 THE COURT: Oh, a week from tomorrow, yes.
12 MS. McCAWLEY: Yes.
13 MS. MENNINGER: Your Honor, we served discovery
14 requests on plaintiff on February 12th.
15 THE COURT: Well, look, that's nice. That's good.
16 But I don't have that, and I think she's right that there is no
17 rule that says you have to get your discovery requests
18 satisfied before the deposition, so --
19 MS. MENNINGER: Your Honor, the responses were due
20 last night yesterday, so that is prior to Ms. Maxwell for the
21 25th. However, as a part of producing that discovery response,
22 they have said they're going to take a month to roll out their
23 production, not just --
24 THE COURT: Look. I'll tell you what let's do. I
25 don't have that, but let's -- we'll hold the deposition date.
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1 When we get through with the rest of this stuff, we'll find out
2 if there is something in particular that you want prior to next
3 Friday and see what that is and see if we can get it. How is
4 that?
5 (Pause)
6 OK. Who pays for what and counsel, all of that?
7 Those are interesting problems and who knows how they all come
8 out. I think all of that is best served by reserving them
9 until the conclusion of the case, which is what I shall do.
10 The plaintiff wants to produce on a rolling basis and
11 to amend or add to the privilege log as the production goes
12 forward. I don't see any problem with that.
13 MS. MENNINGER: Your Honor, that's actually the issue
14 I was just alluding to. I understand -- and I have said I
15 don't have a problem with plaintiff producing her documents
16 over the course of the month because she has said that it is a
17 hardship for her to produce them all last night, which is when
18 they were due. However, she's trying to take our client's
19 deposition in the middle of her rolling production, in other
20 words, show up at the deposition with the documents she happens
21 to get --
22 THE COURT: That's what I'm saying. Maybe what we'll
23 do is to deal with the document production issue separately.
24 MS. MENNINGER: OK.
25 THE COURT: And if there are some documents that
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1 really seem to be important and they cannot be produced, then
2 maybe we'll put over the -- we'll see how that works.
3 MS. McCAWLEY: Your Honor, I may be able to short
4 circuit this.
5 THE COURT: Pardon me?
6 MS. McCAWLEY: I may be able to short circuit this a
7 little bit. We produced 3,000 pages last night. We are
8 continuing that production. We are moving as fast as we can.
9 We produced a privilege log with over 134 entries on it. We
10 are continuing to move that forward as quickly as we can.
11 With respect to her deposition, your Honor, I'm happy
12 to provide them in advance every document I will be using at
13 her deposition. In other words, if that is their issue, if it
14 means I can get her deposition next Friday, I will share with
15 them any document I intend to use at that deposition.
16 THE COURT: That seems to solve the problem, don't you
17 think?
18 MS. MENNINGER: Your Honor, I have to disagree. I got
19 this responsive objection last night at 9:30 p.m., while I was
20 here in New York. I've taken a look at it, and I can give your
21 Honor a sense of the types of objections that plaintiff has
22 lodged to our document request. For example, their client sold
23 her diary to Radar Online. It was published on Radar Online.
24 This diary contains plaintiff's allegations against my client.
25 So I asked for the diary that was sold to Radar Online.
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1 THE COURT: You get it.
2 MS. MENNINGER: It is copyright and proprietary
3 protected. We're not going to produce it. So that's the kind
4 of example --
5 THE COURT: No. You get it.
6 MS. McCAWLEY: She doesn't have a diary. She might be
7 referring to something else. I mean, my client doesn't have a
8 diary to produce. She doesn't have one. Those were
9 handwritten notes that she gave a reporter. She doesn't have
10 one.
11 THE COURT: So you are saying --
12 MS. McCAWLEY: That request is broader. I mean --
13 THE COURT: No.
14 MS. McCAWLEY: I didn't know we were going to be
15 addressing my requests today --
16 THE COURT: -- as to the diary, you say it doesn't
17 exist. There is no diary, there are no notes, and whatever
18 there is has been the subject of the printed material?
19 MS. McCAWLEY: Yes.
20 MS. MENNINGER: Excerpts -- excerpts, your Honor, with
21 my client's name on them in plaintiff's handwriting were sold
22 to Radar Online, not the entire document. And when I asked for
23 the entire document, I was told that it is proprietary and
24 copyright protected.
25 THE COURT: What is "proprietary"?
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1 MS. McCAWLEY: I think she's referring to a broader
2 request. My client doesn't have a diary, which is what she's
3 addressing right now. I don't have my requests in front of me,
4 your Honor. We were here on their requests. But if you want
5 to read the whole request, I can try and remember what --
6 THE COURT: What are we talking --
7 MS. McCAWLEY: Did they say I was withholding
8 documents? I don't think I said I was withholding documents on
9 that request. But, again, I don't have it in front of me and I
10 apologize.
11 MS. MENNINGER: The request number 16 reads: "Any
12 diary, journal, or calendar concerning your activity between
13 '96 and '02."
14 Response: Ms. Giuffre objects to this request to the
15 extent it seeks proprietary- and copyright-protected material.
16 Ms. Giuffre objects in that it seeks information protected by
17 the attorney-client privilege, the attorney work product
18 privilege, the joint defense, interest privilege, the agency
19 privilege, the investigative privilege, the spousal privilege,
20 the accountant/client privilege, and any other applicable
21 privilege."
22 THE COURT: Hot dog. I tell you, that's great.
23 MS. McCAWLEY: But did I say I didn't have --
24 THE COURT: Shall we use that as the standard
25 objection to every document request and then let's forget about
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1 it? OK, let's do this.
2 MS. McCAWLEY: Your Honor, may I be heard on just one
3 point on this issue?
4 If the standard were that someone could wait in a case
5 to request documents and then push off depositions by
6 continuing to file new requests, it's apparently --
7 THE COURT: Yes. I hear you. I understand that
8 point. Look, obviously if there are documents that are covered
9 by the privilege, they have to be identified and logged. So
10 that's the privilege.
11 I don't know, what is this proprietary thing? What is
12 that all about?
13 MS. McCAWLEY: To the extent she has commercially
14 valuable material that she has written, that's covered by --
15 it's covered by the protective order basically, that it would
16 be produced in a confidential format with a copyright-protected
17 format. So it is a general objection --
18 THE COURT: So she will produce that, she will produce
19 everything --
20 MS. McCAWLEY: If she has something like that, yes.
21 Like I said, we produced 3,000 pages yesterday.
22 THE COURT: And calendars and all of the rest of them?
23 MS. McCAWLEY: To the extent she has any of that, we
24 will produce it, your Honor.
25 THE COURT: All right. In other words, you are going
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1 to produce everything except anything that you have that you
2 claim privilege as to which you will log?
3 MS. McCAWLEY: Yes. We have been logging --
4 THE COURT: Well --
5 MS. MENNINGER: Your Honor, on this particular one,
6 she says her client does not have any nonprivileged documents
7 created during the time period responsive to this request, and
8 then there are no privileged documents related to this log on
9 the privilege log. So I don't have any way to read this
10 request in a privilege log and figure out whether there are
11 noncopyright materials that weren't withheld or there are
12 privileged because all of these privileges were raised --
13 THE COURT: I take it that what's being said is that
14 she has no privileged documents that would be covered by that
15 request?
16 MS. MENNINGER: That's not what the objection says.
17 And, your Honor, since she sold her handwritten notes about my
18 client to Radar Online, I know they exist because they were
19 excerpted on the Internet.
20 THE COURT: Yes, but she said she doesn't have them.
21 She said -- I mean, correct me if I am wrong.
22 MS. McCAWLEY: No, she doesn't have them. But, your
23 Honor, I am happy to have -- first of all, she hasn't conferred
24 on these issues that we are talking about here today. I am
25 happy to address them fully. I feel very comfortable with our
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1 discovery production in this case. We will continue to roll it
2 out; we have done it timely. Unlike like the defendants, who I
3 served their discovery requests October 27th, your Honor. We
4 are now in March. I received two emails, two emails in
5 response. I produced 3,000 pages --
6 MS. MENNINGER: Your Honor, she is --
7 (Unintelligible crosstalk)
8 THE COURT: Ladies, we're not going to get anywhere if
9 we "who struck John."
10 MS. McCAWLEY: I understand, your Honor.
11 I think I proposed something very fair by saying that
12 I would share with her any document I intend to use at that
13 deposition. I just need the deposition.
14 THE COURT: I understand. I got you. OK.
15 Now, you will identify any document -- I mean, you
16 tell them -- give them any documents that you are going to use
17 in the deposition.
18 MS. McCAWLEY: Yes.
19 THE COURT: OK. Now, is there -- the business of this
20 production on -- you are going to have to -- well, wait a
21 minute. Let me put it this way. The objections to this 16 are
22 overruled except for the privilege. OK?
23 MS. MENNINGER: Your Honor, I've proposed dates for my
24 client to be available in two or three weeks, once we have
25 received a complete document production, which was due last
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1 night, and I have been told we're not going to talk about dates
2 in two or three weeks. We haven't asked to set them out into
3 May or June. We've just asked for the documents that were due
4 last night to be produced to us before our client's deposition.
5 This isn't some kind of game. It's just she's been litigating
6 this case for seven years --
7 THE COURT: OK. Well, we've dealt with the first
8 objection. Now, is there another one?
9 MS. McCAWLEY: Right. So we're here on my motion to
10 compel production of documents. I am just getting a little
11 confused because I don't -- we are here -- my motion to compel
12 production of documents from her based on my request that --
13 THE COURT: Let's not worry about the --
14 MS. McCAWLEY: OK. I just wanted to be clear. I
15 don't have in front of me the request that she is referring to.
16 THE COURT: OK. Anything else that you think you need
17 besides the documents she is going to use, the response to 16?
18 Anything else --
19 MS. MENNINGER: Your Honor --
20 THE COURT: -- that is critical for the deposition?
21 MS. MENNINGER: Your Honor, these were filed last
22 night at 9:30 p.m., the 3,000 pages were produced to my office,
23 which is in Colorado. I haven't looked at the 3,000 pages that
24 were produced last night. I will have to ask leave of the
25 Court to go back, look at the documents that were produced and
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1 see what I am missing.
2 THE COURT: All right. If you want to, you can come
3 back on Thursday next week and we can argue about whether or
4 not the deposition should go forward on Friday.
5 MS. MENNINGER: OK.
6 THE COURT: That is all right with me.
7 MS. MENNINGER: That is acceptable, your Honor.
8 THE COURT: OK. So maybe we've solved that problem.
9 OK. Maybe.
10 Now, on the improper objections by the defendants. I
11 suppose I can assume that the defendants' objections are just
12 exactly the same as the plaintiff's objections.
13 MR. PAGLIUCA: No, your Honor. They are not.
14 MS. McCAWLEY: Oh, I'm sorry. This is my motion to
15 compel. Can I just address it initially so that I can lay out
16 for the Court what the issues are that we are raising on the
17 motion to compel?
18 THE COURT: I'm sorry.
19 MS. McCAWLEY: This is my motion to compel now. Can I
20 address -- am I able to address that?
21 THE COURT: Yes.
22 MS. McCAWLEY: So with respect to our motion to compel
23 the documents from the defendant, as you know, your Honor,
24 there are two main objections that I think have to be overcome
25 in order for us to get that production properly. The first
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1 main objection is the fact that they are objecting to the time
2 period. So we have sought requests from 1999, which is in
3 around the time when my client contends she was involved with
4 these individuals, to the present. They objected that that
5 time period is overly broad. They only agreed to produce for
6 the period of 1999 to 2002 and for one month, from December 31,
7 2014 to January 31, 2015. So they cut out all the years in
8 between and anything post January 31, 2015.
9 Now, with respect to your Honor maybe saying why would
10 that time period be relevant, the entire time period is
11 relevant for a number of reasons. First, in 1999, that's when
12 my client first recalls being --
13 THE COURT: We can agree -- I think we can agree at
14 the outset that '99 to what is it?
15 MS. McCAWLEY: 2002.
16 THE COURT: 2002 is relevant.
17 MS. McCAWLEY: Right.
18 THE COURT: So what we're talking about is the -- what
19 happened in 2002?
20 MS. McCAWLEY: My client was sent to Thailand by
21 Mr. Epstein and Ms. Maxwell for a training and to pick up
22 another --
23 THE COURT: So she is no longer --
24 MS. McCAWLEY: And she left. She fled to Australia.
25 THE COURT: OK.
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1 MS. McCAWLEY: So with respect to these requests, I
2 just want to -- you know, because the Court has mentioned this
3 and it is worthy of referencing, that if you look at the
4 defendants' request to us, they actually request a longer time
5 period; they request from 1996 to the present. So while they
6 don't want us to -- they don't want to produce to us except for
7 that short window, they are requesting the entire period. In
8 some cases they request -- and I did a chart. Your Honor,
9 would you mind if I just pass this up to you for reference?
10 THE COURT: OK.
11 MS. McCAWLEY: I did a chart, I believe it is on page
12 10, and it has for you the various requests and what the time
13 periods are, and for many of the requests there is no time
14 period at all.
15 MR. PAGLIUCA: I have it. I don't need it.
16 MS. McCAWLEY: Oh, you have that?
17 MR. PAGLIUCA: I do not need it.
18 MS. McCAWLEY: OK. I'm sorry.
19 So that time period shows that many of those requests
20 don't have a time period at all; so it is even broader, from
21 infancy to present. So, in fairness, our requests are 1999 to
22 the present, which we believe is the critical time period.
23 Now, what happens in 2002? So my client does flee to
24 Australia away from these individuals, but the conduct
25 continues. So we have, for example, the law enforcement trash
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1 pulls that show the message pads of the back and forth of
2 arranging these underaged minors to come for massages, things
3 of that nature. We have the flight logs that show Ms. Maxwell
4 flying 360 times with Jeffrey Epstein, 20 of which were with my
5 client when she was underage. We have the Palm Beach police
6 report, which shows over 30 minors who reported during that
7 time period, to up until now 2006, being abused in that
8 circumstance in Palm Beach. Then we have the arrest that
9 happens of Jeffrey Epstein in 2006.
10 Thereafter, my client in 2008 is -- I'm sorry, she
11 receives from the U.S. government a victim notification letter.
12 At that point, in 2009, Ms. Maxwell's deposition is sought in
13 underlying civil cases. She flees from that deposition, says
14 her mother is ill in England, she has to leave the country,
15 cannot be deposed. She then shows up three weeks later at
16 Chelsea Clinton's wedding. So clearly she was around, she was
17 able to do something, but she avoided that deposition. Her
18 testimony was never taken in that case.
19 So that's in 2009. Then we have in 2011 my client is
20 interviewed by the FBI about the issues that have happened.
21 Then we have in 2011 Ms. Maxwell starts issuing different
22 statements to the press. She continues that, issues a
23 statement in 2015, which is the statement that we are here
24 about in this case.
25 So I contend, your Honor, that all of those years have
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1 relevant information in them with respect to my client.
2 THE COURT: OK. I understand.
3 Let's hear from the defendant.
4 MR. PAGLIUCA: So, your Honor, I have tried to refrain
5 from responding in kind, but the problem here is all of this --
6 the agenda behind all of this is not really the issue in this
7 case but it is to make inflammatory statements like counsel
8 just made as fact when they are speculation, at best, your
9 Honor, and to pack into the record things that are demonstrably
10 not true but counsel says them like they are true and then
11 refers to her own declaration to support the fact of what she
12 is saying may or may not be true. So let's get to the issue
13 here in terms of the relevant timeframe.
14 First, the plaintiff goes to Thailand on her own
15 volition, gets married, and moves to Australia, where she
16 resides for some 12/13 years after, and has no contact with
17 Ms. Maxwell or Mr. Epstein. So everything that happens from
18 2002 forward has absolutely nothing to do with the plaintiff in
19 this case, and she has absolutely no personal knowledge about
20 what did or didn't happen in Florida or elsewhere from that
21 timeframe forward.
22 You know, I carefully, your Honor, read your ruling on
23 the motion to dismiss, and I believe that you characterized the
24 issue in this case very narrowly, and that is is what the
25 plaintiff said about Ms. Maxwell, and from 1999 to 2002, true
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1 or not. Those two individuals have the facts that relate to
2 that, and anything outside of that, quite frankly, is opinion
3 and not a subject matter of this litigation.
4 Now, you have to focus not only on this expansive
5 timeframe in which the plaintiff is not even in this
6 hemisphere, which is combined with the overbroad requests that
7 don't ask for things that might be arguably relevant under a
8 404(b) analysis -- you know, for example, did this happen with
9 Ms. Maxwell and someone else in 2005, let's say -- those aren't
10 what the requests are. The requests are for all communications
11 for 17 years with plug in the individual, all documents
12 relating to whatever you want to plug in there for 17 years.
13 And so those two things combined create a grossly overbroad and
14 unmanageable document request. Hence, the objections.
15 Now, had we had the ability to confer about this, we
16 may have been able to get down to, here, these are really the
17 relevant timeframes, or you need to modify your requests for
18 production to say things like any communication with Jeffrey
19 Epstein related to the plaintiff, any communication with this
20 person related to the plaintiff. But that's not what the
21 requests are. And so what you are left with is an unmanageable
22 pile of requests for production of documents.
23 I will note, your Honor, so the Court has this in
24 context, there are 39 requests that have been proposed to
25 Ms. Maxwell. She has no responsive documents, and I've so
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G3hdgium
1 indicated to 17 of those requests. So we then winnow this down
2 to the ones that we are objecting to for very good reason. The
3 timeframe we have proposed is the appropriate timeframe. If
4 there are narrowly tailored requests for production for
5 something that may be relevant outside that timeframe, then
6 they should propose that and not what they are proposing
7 currently, which makes the entire process unwieldy and
8 unreliable.
9 MS. McCAWLEY: Your Honor, the underlying issue in
10 this case is whether or not Ms. Maxwell lied when she said my
11 client was not subject to the abuse that she said she was
12 subject to. So in order to prove that, for defamation with
13 malice, we have to prove that my client was abused by these
14 individuals, that these individuals did take advantage of her
15 in the way that she expressed.
16 What's relevant to that is the sexual trafficking
17 ring. If after my client left they are also trafficking other
18 underaged girls repetitively, that is relevant to prove the
19 truth of my client's allegations as well. We are entitled to
20 that in discovery, your Honor. One of the requests is the
21 documents relating to communications of Jeffrey Epstein. If
22 she is e-mailing Jeffrey Epstein about the girls she's going to
23 send over to him in 2004, before he is arrested, that's
24 relevant to my client's claim, your Honor. So we shouldn't be
25 told that we're not entitled to these documents or that we're
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1 only entitled to two emails out of all of our requests.
2 In addition, he says that there are 17 requests that
3 they have no documents for, your Honor, but, again, they have
4 restricted the time period to this very short window and then
5 they answered in their responses. OK. So --
6 MR. PAGLIUCA: That is not true. If you read --
7 actually read the response, there is no restriction because we
8 have looked and there are no documents. We're actually trying
9 to move this ball forward, your Honor, and what's happening
10 here is we keep getting sucked back into this morass of maybe
11 something happened. If you listen to the words that counsel is
12 saying, your Honor, it is very illustrative of the fishing
13 expedition. If there is this, then it is relevant. But that
14 is not what they are asking for. And you have to go back to
15 the request. "All documents" -- Request No. 1: "All documents
16 relating to communications with Jeffrey Epstein from 1990 to
17 present." Well, that's not all documents concerning
18 trafficking or underaged girls, that's all documents relating
19 to, which could be anything in the universe.
20 Those are the reasons why I objected.
21 Request No. 3: "All documents relating to
22 communications with Andrew Albert Christian Edward, Duke of
23 York, from 1990 to present." You know, what the heck does a
24 communication with the Duke in 2013, any old communication,
25 have to do with anything in this case? Nothing. If you
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1 said -- if you give me a request for production of documents
2 that said give me any documents that talk about your press
3 release with the Duke, well, that might be relevant and
4 discoverable, but these are grossly overbroad.
5 If they had conferred with us, we would have been able
6 to narrow this down, but they haven't because there is an
7 agenda here that, quite frankly, I don't understand, your
8 Honor. But what I think it is is to simply pack the record,
9 the written record and the oral record, with these very
10 specious, quite frankly, disgusting allegations about my
11 client, and that's not what we're here for. If they want
12 something, they should ask for it specifically. If they just
13 want to, you know, kind of throw things around -- if this, then
14 that -- then that's what we're about here.
15 MS. McCAWLEY: Your Honor --
16 THE COURT: All right. I think I understand this
17 issue.
18 What else do we have? We have the timeframe and the
19 specificity.
20 MS. McCAWLEY: Right. So, your Honor, there is the
21 timeframe for the request, and then, right, I assume that they
22 are alleging that these are overbroad in some way as --
23 THE COURT: I would rather think I just heard that.
24 MS. McCAWLEY: Right. Exactly. So, your Honor, just
25 to touch on that very quickly. Not only -- and you will see it
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1 in our papers, but we also give specific examples of why these
2 are relevant, for example, and not overbroad. For example, two
3 of the people we asked for documents and communications with,
4 Sarah Kellen and Nadia Marcinkova, when they were asked in
5 their depositions about Ms. Maxwell sexually trafficking
6 underaged girls, both of those individuals took the Fifth. If
7 there are documents between Ms. Maxwell and Sarah Kellen
8 discussing those issues at any time from 1990 to present, we
9 want those documents, your Honor. And while they say that
10 day-to-day communications with Jeffrey Epstein wouldn't be
11 relevant, they would. If they're communicating on a daily
12 basis, that's relevant.
13 THE COURT: I understand that point.
14 MS. McCAWLEY: So, your Honor, those are the two key
15 issues as I understand it, the time period and then the
16 overbreadth of the request, that they have been objecting to.
17 And, your Honor, we just obviously want discovery in
18 this case to move it forward.
19 THE COURT: All right. So we've got that. I
20 understand that. Is there any other broad category?
21 MS. McCAWLEY: No. Those are the two issues, as I
22 understand it, the date range which they've limited --
23 THE COURT: If we resolve those two, have we resolved
24 the objections to the document demand?
25 MS. McCAWLEY: That's my understanding, that they
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1 should be producing at that point.
2 THE COURT: All right.
3 MR. PAGLIUCA: Well, there are privilege issues that
4 remain unresolved.
5 THE COURT: No. We're going to deal with the
6 privilege issues.
7 MR. PAGLIUCA: I just didn't want you to think --
8 THE COURT: No. I would be pleased to hear anybody if
9 they want to be heard on my proposal on the privilege --
10 MR. PAGLIUCA: No. I think that is fine, your Honor.
11 I just didn't want to let that be unsaid.
12 The other thing I need to add in this discussion,
13 though, your Honor, is this. You know, the plaintiff
14 repeatedly now tries to distance herself from her own requests
15 for production by comparing, for example, the timeframe at
16 issue to the timeframe that Ms. Maxwell believes the plaintiff
17 should be responding to.
18 THE COURT: OK. All right. We'll take a short
19 recess.
20 (Recess)
21 THE COURT: Please be seated. Thank you very much.
giuffre-maxwell
Unknown
12 pages
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S MOTION TO COMPEL DATA FROM DEFENDANT’S UNDISCLOSED
EMAIL ACCOUNT AND FOR AN ADVERSE INFERENCE INSTRUCTION
Plaintiff, Virginia Giuffre, by and through her undersigned counsel, files this Motion to
Compel Data from Defendant’s Undisclosed Email Account and for An Adverse Inference
Instruction regarding the data from that account, and states as follows. Defendant has not disclosed,
nor produced data from, the email account she used while abusing Ms. Giuffre from 2000-2002
in violation of this Court’s Order [DE 352]. Ms. Giuffre hereby moves to compel Defendant to
produce this data, and requests that this Court enter an adverse inference jury instruction for this
willful violation of this Court’s orders.
I. BACKGROUND
The earliest-dated email Defendant has produced in this litigation is from July 18, 2009.
(GM_00069). Ms. Giuffre is aware of two email addresses that appear to be the email addresses
Defendant used while Ms. Giuffre was with Defendant and Epstein, namely, from 2000 - 2002.
Defendant has denied that she used those accounts to communicate, but she has not disclosed the
account she did use to communicate during that time, nor produce documents from it.
Importantly, Defendant has never denied using an email account for communication from
1999-2009, and the facts and circumstances show that it is exceedingly unlikely that Defendant
did not use an email account to communicate those years.1
For example, according to United States Department of Commerce, “eighty-eight percent
of adult Internet users sent or received e-mail” in 2000. See Eric C. Newburger, “Home
Computers and Internet Use in the United States: August 2000,” U.S. DEPARTMENT OF
COMMERCE, ECONOMICS AND STATISTICS ADMINISTRATION, U.S. CENSUS BUREAU, September
2001. Additionally, the Pew Research Center published findings that certain demographics have
higher internet usage, including many demographics to which Defendant belongs. For example,
higher rates of internet usage are found among younger adults (Defendant was 38 in 1999); those
with college educations (Defendant has a master’s degree); those in households earning more
than $75,000 (Defendant was in a household headed by a billionaire during that time, and that
household had its own private email server and account); whites or English-speaking Asian-
-
Americans (Defendant is white); and those who live in urban areas (Defendant lived in Palm
Beach and Manhattan). See Andres Perrin and Maeve Duggan, ‘Americans’ Internet Access:
2000-2015,” PEW RESEARCH CENTER, June 26, 2015.
Additionally, her boyfriend, Jeffrey Epstein, with whom she shared a household from
1999-2002 (and other years), implemented an entire, private email system to communicate with
his household and employees, including Defendant. Accordingly, given Defendant’s
extraordinary economic resources, her high-level social connections, and her elaborate
residential email/internet configuration she had during that time, it is extraordinarily unlikely that
she would not employ an almost ubiquitous communication tool, nor has she denied it.
1
On Friday, September 23, 2016, counsel for Ms. Giuffre sent a letter to Defendant inquiring about the undisclosed
account. As of the date of this motion, Defendant has made no response.
2
A. The Account
Ms. Giuffre has knowledge of the account because it was listed as
part of Defendant’s contact information (including phone number) on documents gathered by the
police from Epstein’s home, and turned over to the Palm Beach County State Attorney as part of
-
the investigation and prosecution of Epstein.
M Ghislaine Maxwell
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843). Despite the fact that this account was listed as her
contact information in the home she shared with Epstein, and despite the fact that the username
bears her initials, Defendant claims she does not recognize the account, and has no access to it.
B. The Account
The mindspring account is also listed as part of Defendant’s contact information gathered
by the police. In her filing with this Court, Defendant represented that this was merely a “spam”
account “to use when registering for retail sales notifications and the like,” and that it contains no
relevant documents. (DE 345 at pg. 8). However, it appears that Jeffrey Epstein created the
mindspring.org accounts to communicate with his household and with his employees, and did, in
fact, communicate with them this way.
As previously recounted, Jeffrey Epstein’s house manager, Juan Alessi testified that
MindSpring account was in daily use by the Epstein household to send and receive messages, a
household to which Defendant belonged:
Q. So when there would be a message from one of them while they were out of town,
they would call you, call you on the telephone?
A. I haven't spoken to Ghislaine in 12 years.
3
Q. Sorry. I'm talking about when you worked there and you would receive a message that
they were coming into town, would that be by way of telephone?
A. Telephone, and also, there was a system at the house, that it was MindSpring,
MindSpring I think it's called, that it was like a message system that would come from
the office.
Q. What is MindSpring?
A. It was a server. I think it was -- the office would have, like, a message system
between him, the houses, the employees, his friends. They would write a message on the
computer. There was no email at that time.
Q. Okay. So what computer would you use?
A. My computer in my office.
Q. And so was part of your daily routine to go to your computer and check to see if you
had MindSpring messages?
A. No. That was at the end of my stay. That was the very end of my stay. I didn't get
involved with that too much. But it was a message system that Jeffrey received every
two, three hours, with all the messages that would have to go to the office in New York,
and they will print it and send it faxed to the house, and I would hand it to him.
Q. Did it look like the message pads that we've been looking at?
A. No, no, nothing like that.
Q. Was it typed-out messages?
A. Yes, typed-out messages.
Q. Just explain one example of how it would work. Let's say that Ghislaine wanted to
send him a message on MindSpring. How would that work?
A. An example?
-
Q. Sure.
A. It got so ridiculous at the end of my stay, okay? That Mr. Epstein, instead of talking
to me that he wants a cup of coffee, he will call the office; the office would type it; they
would send it to me, Jeffrey wants a cup of coffee, or Jeffrey wants an orange juice out
by the pool.
Q. He would call the office in New York. They would then type it in MindSpring?
4
A. Send it to me.
Q. How would you know to check for it? How would you know to look for this
MindSpring?
A. Because I was in the office. I was there. I was there. And we have a signal when it
come on and says, Hey, you've got mail.
-
Q. Okay.
A. Every day. Every day it was new things put in. That's why I left, too.
Q. Do you know who set up the mind spring system?
A. It was a computer guy. It was a computer guy who worked only for
Jeffrey. Mark. Mark Lumber.
Q. Was he local to Palm Beach?
A. No. He was in New York. Everything was set up from New York. And Mark
Lumber, I remember he came to Palm Beach to set up the system at the house.
Alessi Dep. Tr. at 223:5-225:17. (June 1, 2016) (McCawley Decl. at Sealed Exhibit 1).
Accordingly, mindspring was a domain name set up for Jeffrey Epstein and his household to
communicate with one another, and was, in fact, used in this manner.
The sworn testimony of Janusz Banasiak, another of Epstein’s house managers, from the case
L.M. v. Jeffery Epstein and Sarah Kellen,2 gives a fuller representation of how Defendant, and
others in Epstein’s sex-trafficking ring, used their accounts on Epstein’s mindspring server:
Q. Okay. Were you aware that Mr. Epstein used a Citrix program to link various computers?
Did you know that?
A. Yeah. I use Citrix too in my computer for exchanging e-mails and get through Internet.
•
***
2
Case No.: 502008CA028051XXXXMB AB, In the Circuit Court of the Fifteenth Judicial
Circuit in and for Palm Beach County, Florida.
5
Q. That's not something that you were, you were privy to? You weren't, you weren't in the
loop of the sharing of information in the house in terms of the computers being connected
through any server?
A. I don't really know what, how, how to answer your question because Citrix is for the
whole organization to exchange e-mail between employees.
Q. All right. You used the term?
A. So, even my computer is connected to Citrix. I can receive mail and I can e-mail
information to employee within organization. But I don't know if you can see to each
computer what is going on on another computer.
***
Q. You have used the term organization; you can share within the organization. What do you
-- just so I can understand what you're calling the organization, what do you mean by that
word?
A. People employed by Jeffrey Epstein. There are a few groups of people, his office in New
York and I guess --
***
Q. Okay. The other people mentioned as co-conspirators are Sarah Kellen, Adriana Ross, and
Nadia Marcinkova. So we'll get to them in a minute but first just so we stay on the track of
who was in the organization, is Sarah Kellen, Adriana Ross and Nadia Marcinkova all people
that you would also consider within the organization?
-
A. Yes.
Q. Okay. So, we just added three more names to it. Who else would you consider,
Ghislaine Maxwell?
-
A. Yes.
Banasiak Deposition at 56:13-17; 57:2-14; 58:1-7; 60:21-61:7 (February 16, 2010) (Emphasis
added) (McCawley Decl. at Sealed Composite Exhibit 2).
As Defendant was a member of Epstein’s household, and claims to have been his
employee (See McCawley Decl. at Sealed Exhibit 3, Maxwell’s April 22, 2016 Dep. Tr. at 10:7-
11:3), it is unlikely that her mindspring account was merely a “spam account” from 1999-2002.
1111
It is much more likely that this account has - or had - Defendant’s communications with co-
6
conspirators Sarah Kellen, Nadia Marcinkova, and Epstein. However, it is Defendant’s
representation that this account does not presently have responsive documents and was merely
used for “spam.”
C. Defendant’s Non-Disclosed Email Account
If the Court accepts Defendant’s claim that she used neither the earthlink.net account nor
the mindspring.org “spam” account to communicate, logic dictates that Defendant must have had
another email account - one that she actually used - from 2000 - 2002. Despite the Court’s orders
that Defendant produce responsive documents from all her email accounts from 1999 to the
present, Defendant has neither disclosed nor produced from the email account that she actually
used to communicate from 2000-2002. This refusal violates this Court’s orders. Ms. Giuffre
issued requests to Defendant on October 27, 2015. Nearly a year later, after this Court has
specifically ordered Defendant to produce her responsive email from all her accounts, Defendant
has produced none from this account. Not only has Defendant failed to produce emails from the
account she actually used from 1999-2002, and she has not even disclosed what account it is.
II. ARGUMENT
A. An Adverse Inference Instruction is Appropriate
An adverse inference instruction is appropriate regarding documents from the email
account Defendant actually used from 1999-2002. In light of this clear and persistent pattern of
recalcitrance, the Court should instruct the jury that it can draw an adverse inference that the
Defendant has concealed relevant evidence. Even if Defendant were, at this late date, to run Ms.
Giuffre’s proposed search terms over the data from the email account she used from 1999 - 2002
(which she refuses to disclose), such a production would be both untimely and prejudicial. Fact
discovery has closed. Numerous depositions have already been taken by Ms. Giuffre without the
benefit of these documents. The window for authenticating the documents through depositions
7
has shut. Expert reports have been exchanged, so Ms. Giuffre’s experts did not have the benefit
of reviewing these documents. Late production of this information robs Ms. Giuffre of any
practical ability to use the discovery, and, importantly, it was incumbent on Defendant to identify
this account.
The Second Circuit has stated, “[w]here documents, witnesses, or information of any
kind relevant issues in litigation is or was within the exclusive or primary control of a party and
is not provided, an adverse inference can be drawn against the withholding party. Such adverse
inferences are appropriate as a consequence for failure to make discovery.” Bouzo v. Citibank,
N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendant’s
continued systemic foot-dragging and obstructionism – even following the Court’s June 20
Sealed Order and August 10, 2016 Order [DE 352] – makes an adverse inference instruction with
regard to Defendant’s documents appropriate. An adverse inference instruction is appropriate
when a party refuses to turn over documents in defiance of a Court Order. See Lyondell-Citgo
Refining, LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461, at *1 (S.D.N.Y. May 2, 2005)
(denying application to set aside Magistrate Judge Peck’s order entering an adverse inference
instruction against defendant for failure to produce documents that the Judge Peck had ordered
Defendant to produce). Accordingly, because a “party’s failure to produce evidence within its
control creates a presumption that evidence would be unfavorable to that party” an adverse
inference should be applied with respect to Defendant’s failure to produce data from the email
account she used from 1999 -2002 “in order to ensure fair hearing for [the] other party seeking
evidence.” Doe v. U.S. Civil Service Commission, 483 F. Supp. 539, 580 (S.D. N.Y., 1980)
(citing International Union v. NLRB, 148 U.S. App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41
(D.C.Cir.1972)).
8
“An adverse inference serves the remedial purpose of restoring the prejudiced party to the
same position he would have been in absent the wrongful destruction of [or willful refusal to
produce] evidence by the opposing party.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 222
(S.D.N.Y. 2013) (granting an adverse inference when defendants refused to produce documents
pursuant to the District Court’s order). Where “an adverse inference ... is sought on the basis that
the evidence was not produced in time for use at trial, the party seeking the instruction must
show (1) that the party having control over the evidence had an obligation to timely produce it;
(2) that the party that failed to timely produce the evidence had ‘a culpable state of mind’; and
(3) that the missing evidence is ‘relevant’ to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.” Id. (citing Residential
Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
Furthermore, as discussed in detail in Ms. Giuffre’s Motion for an Adverse Inference
Instruction (DE 315) and Supplement Motion for Adverse Inference Instruction (DE 338), an
adverse inference is appropriate regarding the documents that Defendant is withholding under
the Second Circuit’s test set forth in Residential Funding. Defendant has admitted to deleting
emails as this Court noted in its Order. An adverse inference is equally appropriate if the non-
compliance was due to Defendant’s destruction of evidence. See Brown v. Coleman, 2009 WL
2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (“Where a party violates a court order—either by
destroying evidence when directed to preserve it or by failing to produce information because
relevant data has been destroyed—Rule 37(b) of the Federal Rules of Civil Procedure provides
that the court may impose a range of sanctions, including dismissal or judgment by default,
preclusion of evidence, imposition of an adverse inference, or assessment of attorneys' fees and
costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp. v. DeGeorge Financial Corp., 306
9
F.3d 99, 106–07 (2d Cir.2002)”). See also Essenter v. Cumberland Farms, Inc., 2011 WL
124505, at *7 (N.D.N.Y. Jan. 14, 2011); and Rule 37(e), Fed. R. Civ. P. (“If electronically stored
information that should have been preserved in the anticipation or conduct of litigation is lost
because a party failed to take reasonable steps to preserve it . . . the court: (2) only upon finding
that the party acted with the intent to deprive another party of the information’s use in the
litigation may: (A) presume that the lost information was unfavorable to the party; (b) instruct
the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss
the action or enter a default judgment.”). Failure to disclose the email account Defendant actually
used from 1992-2002 warrants an adverse inference instruction.
III. CONCLUSION
For the reasons set forth above, Ms. Giuffre respectfully requests that this Court compel
Defendant to disclose what email account she actually used from 2009-1999, and that the court
give the jury an adverse inference jury instruction concerning the documents from the
undisclosed email account.
October 14, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
10
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52023
3
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 14, 2016, I electronically filed the foregoing
document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing
document is being served to all parties of record via transmission of the Electronic Court Filing
System generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Meredith Schultz
Meredith Schultz
12
giuffre-maxwell
Unknown
17 pages
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S MOTION TO ENFORCE THE COURT’S ORDER AND DIRECT
DEFENDANT TO ANSWER DEPOSITION QUESTIONS FILED UNDER SEAL1
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Motion to Compel Defendant to Answer Deposition Questions. On June 20, 2016, this Court
Ordered Defendant to sit for a second deposition because her refusal to answer questions posed
in her first Deposition (June 20, 2016 Sealed Order, filed in redacted version at D.E. 264-1). Yet,
during her second deposition, Defendant again refused to answer numerous questions regarding
sexual activity related to Jeffrey Epstein in contravention of this Court’s Order. Accordingly, the
Court should direct her to fully answer the relevant questions.
FACTUAL BACKGROUND
As the Court is aware, this defamation case involves Ms. Giuffre’s assertions that she and
other females were recruited by Defendant to be sexually abused by Jeffrey Epstein under the
guise of being “massage therapists.” See Complaint, DE1, at ¶ 27 (Giuffre “described Maxwell’s
role as one of the main women who Epstein used to procure under-aged girls for sexual activities
1
Defendant has labelled her entire deposition transcript as Confidential at this time.
1
and a primary co-conspirator and participant in his sexual abuse and sex trafficking scheme”).
Numerous other witnesses, with knowledge of Defendant’s activities, have testified to the same:
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016, Deposition of
Detective Recarey at pg. 29:11-20. “Q. “Okay. During your investigation, what did you
learn in terms of Ghislaine Maxwell's involvement, if any? THE WITNESS: Ms.
Maxwell, during her research, was found to be Epstein's long-time friend. During the
interviews, Ms. Maxwell was involved in seeking girls to perform massages and work at
Epstein's home.”
2
See Schultz Decl. at Composite Exhibit 5, Excerpts from June 1, 2016, Deposition of
John Alessi at pg. 28:6-15. “Q. And over the course of that 10-year period of time while
Ms. Maxwell was at the house, do you have an approximation as to the number of
different females -- females that you were told were massage therapists that came to the
house? THE WITNESS: I cannot give you a number, but I would say probably over 100
in my stay there." Id. at pg. 30:15-25 “Q: Did you go out looking for the girls -- A. No.
Q. -- to bring -- A. Never. Q. -- as the massage therapists? A. Never. Q. Who did?
A. Ms. Maxwell, Mr. Epstein and their friends, because their friends relayed to other
friends they knew a massage therapist and they would send to the house. So it was
referrals.”
In response to Ms. Giuffre’s assertions about Defendant recruiting of females for sexual
purposes, Defendant has made the sweeping claim that Ms. Giuffre’s assertions are “entirely
false” and “entirely untrue.” Complaint, DE 1, at ¶ 31. Accordingly, this Court directed as
follows:
.
See Schultz Decl. at Exhibit 6, (Emphasis added).
Despite this instruction from the Court, during her deposition, Defendant refused to
answer many questions related to “sexual activity with or involving Jeffrey Epstein, with or
involving Plaintiff . . . or involving or including massage with individuals Defendant knew to be
or believed were known to might become known to Epstein.” The result was that at a number of
3
points throughout her deposition, Defendant refused to answer questions about subjects integral
to this lawsuit, including questions about a student, , who Defendant recruited
from her school to give massages to, and have sex with, Jeffrey Epstein under the guise of hiring
her to answer phones.
For example, Defendant refused to answer questions about recruiting for sex
with Epstein:
Q. So is it fair to say that
MR. PAGLIUCA: This has already been testified to Mr. Boies. We are repeating
testimony now.
MR. BOIES: I think in the context of the witness’ answers, these are fair
questions. Now, I’ve asked you before, if you want to instruct her not to answer,
if you want to go to the judge, we are happy to do that, but I would suggest in the
interest of moving it along, that you stop these speeches.
MR. PAGLIUCA: You are not moving it along is the problem, so maybe we
should call the court and get some direction here, because I am not going to sit
here and rehash the testimony we already gave.
MR. BOIES: That’s fin[e]. [At this point a telephone call was placed to Judge
Sweet’s chambers].
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg.78:17-79:14.
MR. BOIES: So how did it happen, Ms. Maxwell, that
, ended up giving massages to you and Mr. Epstein.
MR. PAGLIUCA: I’m going to instruct you not to answer the question. This has been
previously , the subject of your former deposition, it doesn’t fall into any of the
categories ordered by the court, and so you don’t need to answer that.
Id. at pg.81:15-25.
Defendant’s counsel’s instruction not to answer was improper. This Court’s Order stated:
4
:
5
In the wake of this specific deposition testimony from , during her own
recent deposition, Defendant continued to refuse to testify about massages and
sexual activity with Epstein:
Q. Did Mr. Epstein pay for the massages that she gave Mr. Epstein?
Mr. Pagliuca: You just asked this question, and I told her not to answer. I will tell her not
to answer again for the same reasons.
Q. Do you know how much Mr. Epstein paid to give massages?
Mr. Pagliuca: Same instruction to the witness. Why do you believe this is within the
scope of the court’s order?
Mr. Boies: Because of the court’s reference to massages, and because I think how much a
girl was paid to give a “massage” goes to whether
there actually was or was not sexual activity involved.
Mr. Pagiluca: The witness has testified there wasn’t.
Mr. Boies: Perhaps it will surprise you, I think it should not, that I do not believe in my
deposition I need to simply accept her characterization without cross-examination. Now
that’s something the judge can decide, but a question as to how much this young girl was
being paid for a “massage,” I think goes directly to the issue of sexual activity.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 82:25-84:6.
Additionally, Defendant refused to answer questions concerning the sexual abuse
involving herself, Mr. Epstein, and , described in a Vanity Fair article:
“What do you have on the girls?” [Epstein] would ask the question over and over again.
What I had “on the girls” were some remarkably brave first-person accounts. Three on-
the-record stories from a family: a mother and her daughters [Maria Farmer, Annie
Farmer, and their mother] who came from Phoenix. The oldest daughter, an artist whose
character was vouchsafed to me by several sources, including the artist Eric Fischl, had
told me, weeping as she sat in my living room, of how Epstein had attempted to seduce
both her and, separately, her younger sister, then only 16. He’d gotten to them because of
his money. He promised the older sister patronage of her art work; he’d promised the
younger funding for a trip abroad that would give her the work experience she needed on
her resume for a place at an Ivy League university, which she desperately wanted - and
would win. The girls’ mother told me by phone that she had thought her daughters would
6
be safe under Epstein’s roof, not least because he phoned her to reassure her, and she
also knew he had Ghislaine Maxwell with him at all times. When the girls’ mother
learned that Epstein had, regardless, allegedly molested her 16-year-old daughter, she’d
wanted to fight back.
“I Tried to Warn You about Sleazy Billionaire Jeffrey Epstein in 2003,” Vicky Ward, January 6,
2015, Daily Beast Article (Emphasis added). Defendant would not answer many questions
concerning her role with in the molestation of these girls while she was sharing a house with
and Jeffrey Epstein:
Q. Do you know whether or not
Mr. PAGLIUCA: Can you tell me how that relates to this order, counselor?
MR. BOIES: Yes, I think it goes directly to the sexual activity related to
and what Mr. Epstein was doing with . Again, you can instruct not to
answer.
MR. PAGLIUCA: I’m trying to understand why you are asking these questions before I -
MR. BOIES: I’m asking these questions because these are people who not only have
been publicly written about in terms of the sexual activity that they were put into in
connection with Mr. Epstein, but the person who wrote about them is someone who
talked to the witness about it, and I think that this is more than easily understood cross-
examination.
MR. PAGLIUCA: Your question was, do you know whether or not
MR. BOIES: Yes. And if you let her answer, you will see where it leads. If you won’t let
her answer, the judge is going to determine it. And I just suggest to you that you stop
these speeches and stop debating, because you are not going to convince me not to
follow-up on these questions. If you can convince the court to truncate the deposition,
that’s your right, but all you’re doing is dragging this deposition out.
MR. PAGLIUCA: You have the opportunity to give me a good faith basis why you are
asking these questions.
MR. BOIES: I have given you a good faith basis.
MR. PAGLIUCA: You haven’t.
7
MR. BOIES: Then instruct not to answer.
MR. PAGLIUCA: I am giving you the opportunity to say why you are asking the
questions, and why I’m telling her not to answer and I am entitled to know that.
MR. BOIES: You are not entitled to know why I’m asking the question. You are only
entitled to know that it relates to the subject matter that I am entitled to inquire about, and
I don’t think the judge is going to think that, you know, where Mr. Epstein shipped
off to is outside the scope of what I’m entitled to inquire about.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 99:6-101:20.
Defendant’s counsel also stopped a line of questioning in which Defendant was asked if
she recalled several girls brought over to give a “massage” to Epstein. The Court
will recall that
Accordingly, at Defendant’s recent deposition, Ms. Giuffre’s counsel attempted to follow up on
this subject:
Q. Have you ever heard the name of ?
A. I don't recollect that name at all.
8
MR. PAGLIUCA: Mr. Boies, those names are on Exhibit 26, which we have already
gone over and she said she didn't recognize those people, so now we are just repeating
things that we went over.
MR. BOIES: I am in the context of seeing if I can refresh her recollection, because these
are women that , who she also does not recall, brought over to Mr. Epstein's
residences, and I also want to make a very clear record of what her testimony is and is not
right now.
Again, you can instruct her not to answer if you wish.
MR. PAGLIUCA: I'm trying to get to nonrepetitive questions here. You basically asked
the same question three times. Then we get a pile of notes that get pushed up to you, you
read those. Then you ask those three times, and then we go to another question. So it's
taking an inordinately long amount of time and it shouldn't.
MR. BOIES: I think that is a demonstrably inaccurate statement of what has been going
on, and I attribute -- maybe I shouldn't attribute it at all. But if you want to instruct not to
answer, instruct not to answer. If you don't, again, all I will do is request that you cease
your comments. I can't do that. All I can do is seek sanctions afterwards.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg. 154:20-156:10.
Based on Defendant’s refusal to answer questions related to specific girls, Mr. Boies was
forced to discontinue asking questions about these victims.
Defendant also refused to answer questions concerning the “sexual activities of others . . .
involving or including massage with individuals Defendant knew to be or believed might
become known to Epstein,” when she refused to answer a question about the records she kept of
the young girls who would perform massage and sexual activities with Epstein:
Q. Was there a list that was kept of women or girls who provided massages?
MR. PAGLIUCA: This has been previously deposed on. This is not part of the court's
order, I will tell her not to answer.
MR. BOIES: You are going to tell her not to answer a question that says was there a list
of women or girls who provided massages?
MR. PAGLIUCA: She has been previously deposed on this subject.
9
MR. BOIES: I think this is squarely in the court's order, but if you instruct her not to
answer, you instruct her not to answer.
MR. PAGLIUCA: We'll find out.
Id. at pg. 184:14-185:6.
Q. “In 2005, were you aware of any effort to destroy records of messages you had taken
of women who had called Mr. Epstein in the prior period?
MR. PAGLIUCA: Don’t answer that question. It’s outside the court’s order.
Id. at pg. 177:5-11.
Ample evidence in this case establishes that not only did Defendant recruit underage girls
for massage and sexual activities with Epstein, but that she participated in calling the girls;
getting other people to bring girls; talking to the girls; taking massages from and leaving
messages about the girls; and scheduling the girls to come over. Accordingly, questions
concerning written records documenting Defendant’s involvement in, and knowledge of, the
girls who “massaged” Epstein is clearly within the ambit of this Court’s Order. For example, a
message from July of 2004 records Defendant, “Ms. Maxwell,” giving a message to Mr. Epstein
as message from ” (an underage girl who was 14 years old on the date of the message)
that “ is available on Tuesday no one for tomorrow.” See GIUFFRE001465.
10
See Schultz Decl. at Composite Exhibit 8, Messages Involving Defendant3. In the investigation
of Mr. Epstein’s sex crimes against minors, law enforcement was able to confirm identities of
underage victims through the use of the names recorded these messages, which were recovered
from Epstein’s trash.4 Accordingly, the messages, and the girls described therein, are fully within
the ambit of this Court’s Order.
3
GIUFFRE001523; GIUFFRE001427; GIUFFRE001451; GIUFFRE001454; GIUFFRE001460;
GIUFFRE001461; GIUFFRE001464; GIUFFRE001465; GIUFFRE001436; GIUFFRE001435;
GIUFFRE001472; GIUFFRE001474; GIUFFRE001492; GIUFFRE001553; GIUFFRE001388;
GIUFFRE001555; GIUFFRE001556; GIUFFRE001557; GIUFFRE001392; GIUFFRE001526;
GIUFFRE001530; GIUFFRE001568; GIUFFRE001536; GIUFFRE001538; GIUFFRE001541;
GIUFFRE001546; GIUFFRE001399; GIUFFRE001402; GIUFFRE001405; GIUFFRE001406;
GIUFFRE001449; GIUFFRE001409; GIUFFRE001410; GIUFFRE001411; GIUFFRE00; etc.
4
Palm Beach Police Officer Recarey was deposed about information pulled by police officers
from trash discarded by Epstein from his home:
Q. The next line down is what I wanted to focus on, April 5th, 2005. This trash
pull, what evidence is yielded from this particular trash pull?
THE WITNESS: The trash pull indicated that there were several messages with
written items on it. There was a message from HR indicating that there would be
11
Finally, Defendant also refused to answer foundational questions that are necessary to
precede questions authorized by this Court, such as:
“In terms of preparing for this deposition, what documents did you review?” See Schultz
Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at 174:2-4.
an 11:00 appointment. There were other individuals that had called during that
day.
Q. And when you would -- when you would see females' names and telephone
numbers, would you take those telephone numbers and match it to -- to a person?
THE WITNESS: We would do our best to identify who that person was.
Q. And is that one way in which you discovered the identities of some of the other
what soon came to be known as victims?
THE WITNESS: Correct.
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016 Deposition of Detective
Recarey at pg. 42:14-43:17. Recarey went on to describe the importance of the information:
Q. Did you find names of other witnesses and people that you knew to have been
associated with the house in those message pads?
THE WITNESS: Yes.
Q. And so what was the evidentiary value to you of the message pads collected
from Jeffrey Epstein's home in the search warrant?
THE WITNESS: It was very important to corroborate what the victims had
already told me as to calling in and for work.
Id. at 78:25 -79:15.
12
In sum, Defendant refused to answer important questions relating to the following topics that
were authorized by this Court’s Order: (1) Defendant’s information relating to and knowledge of
the circumstances of g performing massages and sex acts upon Epstein; (2)
Defendant’s information relating to and knowledge of the circumstances relating to the abuse of
by Defendant and Epstein; (3) Defendant’s information relating to
and knowledge of any lists or records of girls who gave “massages” to Epstein; (4) Defendant’s
involvement with messages (or related documents) showing Defendant’s knowledge of, and
involvement in, the scheduling of underage girls for massage and sex with Epstein, and any
destruction of evidence related to these messages (or related records); (5) foundational questions
that were necessary precedent to asking questions authorized by this Court’s Order; and (6) all
related questions that arise out of any response Defendant provides within the parameters of the
Court’s June 20, 2016, Order.
DISCUSSION
The Court should compel Ms. Maxwell to answer questions in the topic areas where she
refused to answer during her recent deposition. Topics 1 - 4 above are central parts of this case,
and Topics 5 and 6 link directly to central parts of this case. Ms. Giuffre, and now other
knowledgeable witnesses, have explained and testified that Defendant not only had knowledge of
Epstein’s massages and sexual activity with others, but she actively facilitated the sexual
massages through recruiting young females and underage girls for the purpose of “massage” and
sexual activity. And proof that Defendant both had knowledge of, and was involved in, these
schemes and encounters, will further help prove that Defendant’s statements to the press that
Virginia’s allegations were “obvious lies” was itself an obvious lie.
13
The questions Defendant refused to answer fall squarely within this Court’s earlier order.
Defendant can have no legitimate basis for obstructing the search for truth by refusing to answer.
The Court should, again, compel Defendant to answer all these questions. See Fed. R. Crim. P.
37(a)(3)(B)(i); see, e.g., Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010 WL 1541585, at
*20 (S.D.N.Y. Apr. 12, 2010) (“Under the Federal Rules, when a party refuses to answer a
question during a deposition, the questioning party may subsequently move to compel disclosure
of the testimony that it sought. The court must determine the propriety of the deponent's
objection to answering the questions, and can order the deponent to provide improperly withheld
answers during a continued deposition” (internal citations omitted)). Of course, the party
objecting to discovery must carry the burden of proving the validity of its objections, particularly
in light of “the broad and liberal construction afforded the federal discovery rules . . . .” John
Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014). For
purposes of a deposition, the information sought “need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Chen-
Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013) (citing Fed.R.Civ.P.
26(b)(1)).
Defendant cannot claim that such questions were outside the scope of this Court’s order,
as they directly relate to (1) her knowledge of individuals who provided “massage” to Epstein
and (2) her knowledge of sexual activities of others with or involving Epstein. Defendant’s
knowledge of the individuals involved in the sex/”massages” relating to Epstein, and her
knowledge about the sex/”massage” related to Epstein is precisely what this Court directed her to
answer. See also, Condit v. Dunne, 225 F.R.D. 100, 113 (S.D.N.Y. 2004) (in defamation case,
“Plaintiff is hereby ordered to answer questions regarding his sexual relationships in so far as
14
they are relevant to a defense of substantial truth, mitigation of damages, or impeachment of
plaintiff.”); Weber v. Multimedia Entm't, Inc., No. 97 CIV. 0682 PKL THK, 1997 WL 729039, at
*3 (S.D.N.Y. Nov. 24, 1997) (“While discovery is not unlimited and may not unnecessarily
intrude into private matters, in the instant case inquiry into private matters is clearly relevant to
the subject matter of the suit. Accordingly, plaintiff Misty Weber shall respond to defendants'
interrogatories concerning her sexual partners . . . .”). Moreover, generally speaking, instructions
from attorneys to their clients not to answer questions at a deposition should be “limited to
[issues regarding] privilege.” Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). In this
case, defense counsel once again ranged far beyond the normal parameters of objections and
gave instructions directly in contravention of this Court’s Order directing Defendant to answer
exactly the type of questions posed to her.
In light of Defendant’s willful refusal to comply with this Court’s Order directing
Defendant to answer questions related to the Court’s June 20, 2016, Order, including topics
enumerated above, Ms. Giuffre also seeks attorneys’ fees and costs associated with bringing this
motion, as well as fees and costs associated with re-taking Defendant’s deposition.
CONCLUSION
Defendant should be ordered to sit for a follow-up deposition and directed to answer
questions regarding the topics enumerated above.
Dated: July 29, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
15
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52025
5
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of July, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
17
giuffre-maxwell
Unknown
21 pages
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S SUPPLEMENT TO MOTION FOR ADVERSE INFERENCE
INSTRUCTION BASED ON NEW INFORMATION
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Supplement to her Motion for Adverse Inference Instruction Based on New Information. Eleven
months into this case, and after the close of fact discovery, Defendant continues to refuse to
abide by her most basic and fundamental discovery obligations. A summary of this ongoing and
willful non-compliance, as well as a supplement to her motion for an adverse inference
instruction based on new information, follows. Most notably, Defendant claims to have run
search terms and reviewed over 10,000 documents, but, remarkably, claims that not a single
document - not one - is relevant to this litigation, and therefore produced nothing with respect to
the search.
I. FACTUAL BACKGROUND
On October 27, 2015, Ms. Giuffre submitted her first set of Requests for Production.
Defendant failed to make a reasonable search or production of her documents, and Ms. Giuffre
sought relief from the Court numerous times:
1
Plaintiff’s Response in Opposition to Defendant’s Motion to Stay Discovery (DE 20)
- Defendant’s Motion to Stay - Denied (DE 28).
Plaintiff’s February 26, 2016 Letter Motion to Compel Defendant to Sit for Her
Deposition (DE 63) - Granted (DE 106).
Plaintiff’s Motion to Compel Documents Subject to Improper Claim of Privilege (DE
33) - Granted in Part (DE 73).
Plaintiff’s Motion to Compel Documents Subject to Improper Objections (DE 35) -
Granted in part (106).
Plaintiff’s Response in Opposition to Defendant’s Motion for a Protective Order
Regarding Defendant’s Deposition (DE 70) - Defendant’s Motion Denied (DE 106).
Plaintiff’s Motion for Forensic Examination (DE 96) - Granted in part (June 20, 2016
Sealed Order).
Plaintiff’s Motion to Compel Defendant to Answer Deposition Questions (DE 143) –
Granted (June 20, 2016 Sealed Order).
Plaintiff’s Motion for Adverse Inference Instruction (DE 279) - Pending.
Plaintiff’s Motion to Enforce the Court's Order and Direct Defendant to Answer
Deposition Questions (DE 315) - Pending.
On June 20, 2016, this Court Granted in Part Ms. Giuffre’s Motion for Forensic Exam,
and directed Defendant to capture her data and run mutually agreed-upon search terms. The
Court also ordered Defendant to produce documents to Ms. Giuffre by July 11, 2016. (This part
of the Court’s Order is not under seal and can be found at DE 264-1). On June 30, 2016, and on
July 8, 2016, counsel for Ms. Giuffre sent letters to Defendant following up on this Order and
proposing search terms (attached as exhibits to DE 279). Defendant did not respond. The July 11,
2016, deadline passed without any production from Defendant.
On July 13, 2016, Ms. Giuffre moved for an adverse inference instruction (DE 279).
Thereafter, the Court denied Defendant’s motion to strike Ms. Giuffre’s motion for an adverse
inference instruction, directing the parties to submit search terms to the Court on August 1, 2016,
advising that “[a] briefing schedule and the submission date will be set after search terms are
determined.” (DE 301).
Pursuant to this Court’s July 22, 2016, on Monday, August 1, 2016, Ms. Giuffre filed the
list of search terms that Ms. Giuffre believes should be run over Defendant’s data. (DE 323).
2
II. DISCUSSION
At a minimum, the Court should direct Defendant to run the search terms in the list
originally submitted by Ms. Giuffre. More broadly, the Court should grant Ms. Giuffre’s request
for an adverse inference based on the incurable prejudice she has suffered as a result of
Defendant’s failure to comply with her discovery obligations and this Court’s June 20, 2016,
Order.
A. Defendant’s Refusal to Even Run Ms. Giuffre’s Name as a Search
Term.
Defendant has been recalcitrant in running even the most basic searches of electronic
data. For example, in a letter sent on June 8, 2016, and in a meet and confer call on July 26,
2016, counsel for Ms. Giuffre asked Defendant to run Ms. Giuffre’s name as a search term to
find documents responsive to (for example) Ms. Giuffre’s Request No. 12, which sought
Defendant’s documents relating to Ms. Giuffre. That request was refused in writing on Friday,
July 29, 2016, at 7:02 p.m. (EST). See McCawley Decl. at Exhibit 1, July 29, 2016, 7:02 p.m.,
Letter from Ty Gee to Ms. Schultz (refusing to run Ms. Giuffre’s name as a search term as part
of effort to identify responsive documents). Specifically, Mr. Gee’s letter said that such a search
term was inappropriate because it was “guaranteed” to generate “thousands of hits”:
3
Having represented that running Ms. Giuffre’s that name was an “extraordinary and
unreasonable” task “guaranteed to have thousands of hits, and someone would have to review
every hit …” (McCawley Decl. at Exhibit 1 at pg. 2 (emphasis added)), a mere three days later,
on Monday, August 1, 2016, Defendant seemingly reversed her position, and represented to the
Court that she had, in fact, run Ms. Giuffre’s names as search terms. (DE 321-6). But, contrary to
the previous claim that it would be enormously burdensome to sort through these “hits,”
Defendant now claimed that she had not found any responsive documents.
It is possible that Defendant changed her mind over the weekend and reversed course.
And, it is possible that Defendant did run those recently-contested terms over the weekend. And,
it is possible that Defendant, over the weekend, gathered a team of lawyers to review the
“thousands of hits” yielded by those terms. And, it is possible that not a single one of
Defendant’s thousands of documents bearing Ms. Giuffre’s name was relevant to this action. All
these things are possible, but none is likely.
Either way, Defendant’s refusal to even include Ms. Giuffre’s name as a search term
(either in reality or in the position she took on Friday) is evidence of Defendant’s continued bad
faith and complete avoidance of her discovery obligations. The case centers on Defendant’s
4
defamatory statements made about Ms. Giuffre. Obviously, Ms. Giuffre has a compelling need
to obtain Defendant’s documents about her, and she has accordingly requested Defendant’s
communications concerning her. Defendant’s documents concerning Ms. Giuffre are directly
relevant to this action, particularly because Defendant has created multiple drafts of statements to
the press defaming Ms. Giuffre.
Throughout the months of motion practice concerning these issues, and throughout all of
the meet and confers, Defendant’s counsel has never presented a case supporting the far-fetched
position that documents in the possession of the Defendant, and containing explicit references to
Ms. Giuffre, are irrelevant and not subject to discovery. Defendant’s refusal to use Ms. Giuffre’s
name as a search term, in light of Ms. Giuffre’s requests for production, and in light of the
defamation claim in this case, is so unfounded and obstructionist that it constitutes a violation of
this Court’s Order, whether or not Defendant actually engaged in the “extraordinary and
unreasonable” task of running the term over the weekend.
The refusal to run this term is particularly inappropriate in light of this Court’s order
directing the Defendant to run “mutually agreed” upon search terms. It is impossible for Ms.
Giuffre’s counsel to begin working with opposing counsel to craft appropriate search terms when
they refuse to extend minimal cooperation - first by completely ignoring Ms. Giuffre’s multiple
attempts to negotiate terms, then by ignoring the deadline to produce documents, and then by
refusal to run the most basic search term. The first term that should be run in this defamation
action - the most fundamental term - is Ms. Giuffre’s name. Defendant’s refusal to run that term
is palpably unreasonable.
Defendant’s refusal to cooperate is even more egregious given Ms. Giuffre’s extensive
efforts to provide discovery to Defendant. Ms. Giuffre has complied with Defendant’s overly-
5
broad discovery requests that sought documents concerning dozens of individuals, including Ms.
Giuffre’s close family members. To comply with these extraordinarily broad requests, Ms.
Giuffre ran search terms constituting the names of all these individuals. For example, Ms.
Giuffre has run the following names as search terms, including Defendant’s name, over her data:
Ghislaine (the defendant)
Maxwell (the defendant)
Jeffrey (Jeffrey Epstein)
Epstein (Jeffrey Epstein)
)
Indeed, to date Ms. Giuffre has produced 8,321 pages of documents in her possession.
Fact discovery has now closed. Ms. Giuffre has requested that Defendant negotiate search
terms with her as far back as March 10, 2016. This Court ordered Defendant to run mutually
agreed upon search terms and produce relevant documents. Yet Defendant has yet to make any
document production pursuant to this Court’s June 20, 2016, Order.
B. Defendant’s Other Failures to Produce Documents
Defendant’s ignoring the July 11, 2016, court-ordered deadline to produce documents
pursuant to mutually agreed upon terms, and Defendant’s recalcitrance in searching for
documents related to Ms. Giuffre are not the only examples of Defendant’s failure to make
appropriate discovery. Defendant claims to have run a number of Ms. Giuffre’s search terms, yet
claims that such a search yielded no responsive documents, save the few added to Defendant’s
privilege log. Defendant did not provide any “hit” information to show which terms yielded
results, or how many results they yielded. Defendant claims to have reviewed over 10,000
6
documents containing the search terms and remarkably states that none – not a single one of the
documents are responsive or relevant to the issues in this matter. Defendant’s representation is
simply implausible, as a review of Defendant’s interactions with several of the important players
in this case makes clear.
i.
:
Q. And then below there is an email from to you and cc'ing
on January 11, 2015. Do you see that?
A. Uh-huh.
Q. It says, Dear Ghislaine, as you know I have been working behind the scenes and
this article comes from that. It helps but doesn't answer the VR claims. I will get the
criminal allegations out. This shows the MOS will print truth, not just a VR voice
piece. We can only make the truth by making a statement. What did he mean when he
said, I will get the criminal allegations out, what was he referring to?
A. I have no idea.
Maxwell Dep. Tr. at 405:13-406:7 (April 22, 2016) (McCawley Decl. at Exhibit 2).
:
Q. This is an email from you on January 10, 2015 to .
The statement you had before you earlier, that, if you can pull that in front of you, the
one page press release that you gave. You might know from memory. Was the press
release that you issued with the statement about Virginia issued in or around January
2, 2015?
A. As best as I can recollect.
Maxwell Dep. Tr. at 361:4-13 (April 22, 2016) (McCawley Decl. at Exhibit 2).
7
Q. Did you authorize to issue that statement on your behalf in January of
2015?
A. I already testified that that was done by my lawyers.
Maxwell Dep. Tr. at 273:6-10 (April 22, 2016) (McCawley Decl. at Exhibit 2).
In both years, 2011 and 2015, Defendant communicated with her counsel, communicated
, and caused a statement regarding Ms. Giuffre to be released
publically, whereupon it was disseminated abroad. Yet, Defendant claims that she has no
communications related to Ms. Giuffre beyond the handful of communications this Court
ordered her to produce after the Court’s in camera review. (DE 73).
ii. Eva Dubin
Defendant also appears to be claiming that she had not had even a single communications
with Eva Dubin, Defendant’s long-time friend whose husband was implicated in sexual abuse by
Ms. Giuffre’s deposition testimony. Defendant admitted that she is friends with Eva Dubin and
admitted to visiting her home from time to time.
Q. Is Eva Dubin one of your friends?
A. Yes.
Maxwell Dep. Tr. at 57:22-23 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Q. You remember from time to time being at the Dubin residence, correct?
A. I do.
Maxwell Dep. Tr. at 163:6-8 (July 22, 2016) (McCawley Decl. at Exhibit 3).
The Dubins are closely connected to this case. Indeed, Rinaldo Rizzo, the Dubins’ butler,
was in tears as he recounted Defendant bringing a fifteen-year-old girl to Eva Dubin’s home.
The girl, in utmost distress, told Mr. Rizzo that Defendant had stolen her passport and tried to
make her have sex with Epstein on his private island, and then threatened her. Rizzo Dep. Tr. at
8
52:8-57:23 (June 10, 2016) (McCawley Decl. at Exhibit 4). Ms. Giuffre has also implicated Eva
Dubin’s husband, Glen Dubin, as someone who was involved in Defendant and Epstein’s sex
trafficking ring. And yet, Defendant would have the Court believe that Defendant and her friend
never communicated about Ms. Giuffre’s testimony. There are no emails; no text messages
produced.
iii.
:
Q. Do you remember speaking with a female by the name of ?
A. Yes.
Q. And is that -- did you learn from about ?
THE WITNESS: That's correct.
Q. And what did you understand interaction with Jeffrey Epstein to
be?
THE WITNESS: was allegedly dating Jeffrey Epstein at the time. And
s and were roommates. During that time, had met with and
went shopping with her at the Palm Beach Mall, where they purchased items from
Victoria's Secrets. After spending the day together, they went over to the Palm Beach
house, where Epstein requested to see what was purchased. She was a little reluctant
initially, but because of the fact that it was his money that purchased the items, she
showed the outfit that she had purchased at Victoria's Secrets. He had asked her to try
it on, at which time she did. She went back to the house at another time, where she
was going to meet with and Epstein. They went for a bike ride, but had a
9
massage, which Epstein walked in on while she was getting a massage. He asked her
to turn over, expose her breasts to him. I think he performed a chiropractic move on
her. And she was completely uncomfortable with the whole situation.
Recarey Dep. Tr. at 106:2-107:20 (June 21, 2016) (McCawley Decl. at Exhibit 5).
Indeed, one of the witnesses who gave testimony in this case,
Even Defendant has admitted involvement with her and Epstein:
Q. Does know Jeffrey Epstein?
A. Can you ask again, please?
Q. Does know Jeffrey Epstein?
A. What do you mean by know?
Q. Has she met her him before?
A. I can't recollect a time when -- I've seen with Jeffrey but --
Q. You are not sure --
A. I know they know either other. I can't testify to a meeting between them.
Maxwell Dep. Tr. at 270:18-271:8 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Q. Why do you think that might know Jeffrey?
10
A. Because you know, I know Jeffrey.
Maxwell Dep. Tr. at 271:18-22 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Yet, Maxwell now wants this court to believe that she has no responsive communications
with relevant to this case.
C. Defendant’s Failures to Search All Email Accounts
Perhaps part of the reason that Defendant has failed to produce responsive document is that
still refusing to collect data from all of her email accounts. In particular, Defendant has not
collected data from her account nor produced relevant documents from
her account. Both email accounts are listed as part of Defendant’s
contact information gathered by the police from Epstein’s home, and turned over to the Palm
Beach County State Attorney as part of the investigation and prosecution of Epstein:
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843).
i. The mindspring.com Account
As evidenced from the police collection above, , was an email
address Defendant used while she was with Epstein. Id. In her filing with this Court, Defendant
represented that this was merely a “spam” account “to use when registering for retail sales
notifications and the like,” and that it contains no relevant documents. Br. at pg. 8. Of course, if
she wasn’t using the or the , what email address
was Defendant using while she was with Epstein, and why hasn’t that account been disclosed
and searched? This Court should order Defendant to disclose all email accounts she has used
from 1999 to the present.
11
At any rate, both recent testimony in this case, and older testimony in a related case,
completely belies Defendant’s claim that her account was merely for
“spam.” Jeffrey Epstein’s house manager, Juan Alessi testified that was in
daily use by the Epstein household to send and receive messages, a household to which
Defendant belonged:
Q. So when there would be a message from one of them while they were out of town,
they would call you, call you on the telephone?
A. I haven't spoken to Ghislaine in 12 years.
Q. Sorry. I'm talking about when you worked there and you would receive a message that
they were coming into town, would that be by way of telephone?
A. Telephone, and also, there was a system at the house, that it was MindSpring,
MindSpring I think it's called, that it was like a message system that would come from
the office.
Q. What is MindSpring?
A. It was a server. I think it was -- the office would have, like, a message system
between him, the houses, the employees, his friends. They would write a message on the
computer. There was no email at that time.
Q. Okay. So what computer would you use?
A. My computer in my office.
Q. And so was part of your daily routine to go to your computer and check to see if you
had MindSpring messages?
A. No. That was at the end of my stay. That was the very end of my stay. I didn't get
involved with that too much. But it was a message system that Jeffrey received every
two, three hours, with all the messages that would have to go to the office in New York,
and they will print it and send it faxed to the house, and I would hand it to him.
Q. Did it look like the message pads that we've been looking at?
A. No, no, nothing like that.
Q. Was it typed-out messages?
12
A. Yes, typed-out messages.
Q. Just explain one example of how it would work. Let's say that Ghislaine wanted to
send him a message on MindSpring. How would that work?
A. An example?
Q. Sure.
A. It got so ridiculous at the end of my stay, okay? That Mr. Epstein, instead of talking
to me that he wants a cup of coffee, he will call the office; the office would type it; they
would send it to me, Jeffrey wants a cup of coffee, or Jeffrey wants an orange juice out
by the pool.
Q. He would call the office in New York. They would then type it in MindSpring?
A. Send it to me.
Q. How would you know to check for it? How would you know to look for this
MindSpring?
A. Because I was in the office. I was there. I was there. And we have a signal when it
come on and says, Hey, you've got mail.
Q. Okay.
A. Every day. Every day it was new things put in. That's why I left, too.
Q. Do you know who set up the mind spring system?
A. It was a computer guy. It was a computer guy who worked only for
Jeffrey. .
Q. Was he local to Palm Beach?
A. No. He was in New York. Everything was set up from New York. And
I remember he came to Palm Beach to set up the system at the house.
Alessi Dep. Tr. at 223:5-225:17. (June 1, 2016) (McCawley Decl. at Exhibit 7). Accordingly,
mindspring was a server set up for Jeffrey Epstein and his household to use to communicate to
one another, and was, in fact, used in this manner.
13
14
Defendant’s email account was part of Epstein’s
account through which he communicated with his employees and other members of his
household, including his co-conspirators , and the Defendant.
This email account likely has (or had) myriad of communications between and among Defendant
and Jeffrey Epstein, Defendant and , Defendant and , and others.
This email account is the one most likely to have the most relevant documents in this case, as it
was used by Jeffrey Epstein and his sex trafficking organization. The fact that this account - an
account created for the sole purpose of enabling Defendant and others to communicate with
Jeffrey Epstein - has no communications with Epstein or the other co-conspirators, is extremely
strong indicia that someone destroyed those email communications. Their destruction warrants
an adverse inference instruction. And, at the very least, the Court should direct Defendant to
retrieve her data from the Citrix server or any other applicable server upon which the
mindspring.com account was hosted.
ii. The Account
The account bears Defendant’s initials, and, again, listed as part of
her contact information gathered by the police from Epstein’s home, and turned over to the Palm
Beach County State Attorney as part of the investigation and prosecution of Epstein:
15
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843)
Because of Defendant’s refusal to search this important email account, any production
yielded from any search terms will necessarily be incomplete. Indeed, this failure is particularly
prejudicial, as this account appears to be the one she used while she was with Epstein, and
therefore, the one she used during the time period Defendant was abusing Ms. Giuffre.
Defendant does not appear to have pursued access to this account very far. This inaction
lies in stark contrast to Ms. Giuffre’s efforts to recover data. Ms. Giuffre has sent executed
releases to Microsoft for her inaccessible account, and even issued a Rule 45 Subpoena to
Microsoft for the production of her account data. See McCawley Decl. at Exhibit 9, Microsoft
Subpoena. At a minimum, the Court should direct the Defendant to take these steps to access the
earthlink.net email account.
D. An Adverse Inference Instruction is Appropriate.
In light of this clear and persistent pattern of recalcitrance, the Court should instruct the
jury that it can draw an adverse inference that the Defendant has concealed relevant evidence.
Defendant has yet to provide responsive information. And even if Defendant were, at this late
date, to run Ms. Giuffre’s proposed search terms over her data (which has not yet been
collected), such a production would be both untimely and prejudicial. Fact discovery has closed.
Numerous depositions have already been taken by Ms. Giuffre without the benefit of these
documents. The window for authenticating the documents through depositions has shut. Expert
reports are due at the end of the month, and Ms. Giuffre’s experts do not have the benefit of
reviewing these documents. Late production of information robs Ms. Giuffre of any practical
ability to use the discovery.
16
The Second Circuit has stated, “[w]here documents, witnesses, or information of any
kind relevant issues in litigation is or was within the exclusive or primary control of a party and
is not provided, an adverse inference can be drawn against the withholding party. Such adverse
inferences are appropriate as a consequence for failure to make discovery.” Bouzo v. Citibank,
N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendant’s
continued systemic foot-dragging and obstructionism – even following the Court’s June 20 order
– makes an adverse inference instruction with regard to Defendant’s documents appropriate. An
adverse inference instruction is appropriate when a party refuses to turn over documents in
defiance of a Court Order. See Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005
WL 1026461, at *1 (S.D.N.Y. May 2, 2005) (denying application to set aside Magistrate Judge
Peck’s order entering an adverse inference instruction against defendant for failure to produce
documents that the Judge Peck had ordered Defendant to produce). Accordingly, because a
“party’s failure to produce evidence within its control creates a presumption that evidence would
be unfavorable to that party” an adverse inference should be applied with respect to Defendant’s
failure to produce “in order to ensure fair hearing for [the] other party seeking evidence.” Doe v.
U.S. Civil Service Commission, 483 F. Supp. 539, 580 (S.D. N.Y., 1980) (citing International
Union v. NLRB, 148 U.S. App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41 (D.C.Cir.1972)).
“An adverse inference serves the remedial purpose of restoring the prejudiced party to the
same position he would have been in absent the wrongful destruction of [or willful refusal to
produce] evidence by the opposing party.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 222
(S.D.N.Y. 2013) (granting an adverse inference when defendants refused to produce documents
pursuant to the District Court’s order). Where “an adverse inference ... is sought on the basis that
the evidence was not produced in time for use at trial, the party seeking the instruction must
17
show (1) that the party having control over the evidence had an obligation to timely produce it;
(2) that the party that failed to timely produce the evidence had ‘a culpable state of mind’; and
(3) that the missing evidence is ‘relevant’ to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.” Id. (citing Residential
Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
Furthermore, as discussed in detail in Ms. Giuffre’s Motion for an Adverse Inference
Instruction (DE 315), an adverse inference is appropriate regarding the documents that
Defendant is withholding under the Second Circuit’s test set forth in Residential Funding.
Defendant has admitted to deleting emails as this Court noted in its Order. Defendant has not
collected what data remains from at least half of her email accounts. An adverse inference is
equally appropriate if the non-compliance was due to Defendant’s destruction of evidence. See
Brown v. Coleman, 2009 WL 2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (“Where a party violates a
court order—either by destroying evidence when directed to preserve it or by failing to produce
information because relevant data has been destroyed—Rule 37(b) of the Federal Rules of Civil
Procedure provides that the court may impose a range of sanctions, including dismissal or
judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment
of attorneys' fees and costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp. v. DeGeorge
Financial Corp., 306 F.3d 99, 106–07 (2d Cir.2002)”). See also Essenter v. Cumberland Farms,
Inc., 2011 WL 124505, at *7 (N.D.N.Y. Jan. 14, 2011); and Rule 37(e), Fed. R. Civ. P. (“If
electronically stored information that should have been preserved in the anticipation or conduct
of litigation is lost because a party failed to take reasonable steps to preserve it . . . the court: (2)
only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation may: (A) presume that the lost information was unfavorable to
18
the party; (b) instruct the jury that it may or must presume the information was unfavorable to
the party; or (C) dismiss the action or enter a default judgment.”).
The Court may also wish to consider the possibility of a having a neutral, third-party
expert review Defendant’s production. In her filing with the Court on Monday, August 1, 2016,
Defendant represented that she ran hundreds of search terms - including the names of people
involved in the sex trafficking ring with whom she still associates in the present - and got zero
“hits” for any of them. That is strong indicia that Defendant intentionally deleted documents.
This strongly suggests that relevant documents either lie in the two email accounts that were not
searched or Defendant has deleted these communications. Defendant does not state that the
individual who examined Defendant’s devices attempted to recover Defendant’s deleted email
and other documents, or attempted to identify if and when a hard drive was wiped.
In these circumstances, the Court should allow an independent forensic expert review the
computer and all her email accounts to determine whether responsive materials exists and have
either not been produced or have been deleted. The Court could then use that information in
determining whether an adverse inference is appropriate.
III. CONCLUSION
For the reasons set forth above, Ms. Giuffre respectfully request that this Court grant her
motion for an adverse inference jury instruction pursuant to Rule 27(b), (e), and (f), with respect
to the electronic documents and electronic communications that this Court Ordered her to
produce, allow a forensic review of her computer to evaluate whether material was intentionally
deleted; and direct Defendant to recover any remaining mindspring.com data from the applicable
server.
Dated: August 8, 2016
19
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52022
2
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
20
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 8th day of August, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
21
giuffre-maxwell
Unknown
27 pages
Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 1 of 27
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------X
.........................................
VIRGINIA L. GIUFFRE,
Plaintiff,
v.
15-cv-07433-RWS
GHISLAINE MAXWELL,
Defendant.
--------------------------------------------------X
Response in Opposition to Plaintiff’s Motion to Enforce the Court’s Order and
Direct Defendant to Answer Deposition Questions Filed Under Seal
Laura A. Menninger
Jeffrey S. Pagliuca
HADDON, MORGAN, AND FOREMAN, P.C.
East 10th Avenue
Denver, CO 80203
303.831.7364
Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 2 of 27
TABLE OF CONTENTS
INTRODUCTION ................................................................................................................. 1
FACTUAL BACKGROUND ................................................................................................. 2
I. PLAINTIFF’S FAILURE TO IDENTIFY THE SPECIFIC QUESTIONS CLAIMED
UNANSWERED REQUIRES DENIAL OF THE MOTION ............................................. 8
II. THE REQUESTED TOPIC AREAS ARE CUMULATIVE, DUPLICATIVE AND NO
GOOD CAUSE EXISTS FOR PERMITTING ADDITIONAL DEPOSITION TIME ...... 10
III. COUNSEL INSTRUCTED MAXWELL NOT TO ANSWER TO ENFORCE THE
COURT’S ORDER AND TO PREVENT HARASSMENT BY PLAINTIFF’S COUNSEL
.................................................................................................................................... 13
A. Objected to Question Number 1: ....................................................................................... 13
B. Objected to Questions Number 2 and 3. ............................................................................ 14
C. “Objected” to Question Number 4. .................................................................................... 15
D. “Objected” to Question Number 5 ..................................................................................... 15
E. “Objected” to Question Number 6 ..................................................................................... 15
F. Objected to Question Number 7 ........................................................................................ 16
G. Objection to Question Number 8 ....................................................................................... 17
H. Objections to Questions 9, 10, and 11. .............................................................................. 17
CERTIFICATE OF SERVICE .............................................................................................. 25
i
Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 3 of 27
Defendant Ghislaine Maxwell, by and through her counsel, hereby submits the following
Response in Opposition (“Response”) to Plaintiff’s Motion to Enforce the Court’s Order and
Direct Defendant to Answer Deposition Questions Filed Under Seal (“Motion”), as follows:
INTRODUCTION
This lawsuit presents one relatively simple question: is Plaintiff’s claim that she was
sexually abused, sexually trafficked and held as a “sex slave” by Jeffrey Epstein between 1999
and 2002 “with the assistance and participation of” Ms. Maxwell substantially true? Plaintiff
already has admitted, under oath, that substantial portions of her story are untrue; she has so far
refused to say under oath what other lies printed by the press about her story are untrue, but has
admitted that journalist Sharon Churcher “got it wrong.” For example, Plaintiff has admitted that
she did not meet Ms. Maxwell or Mr. Epstein in 1999 (or in 1998) at the age of 14 or 15, as she
previously has sworn and as she told members of the press. Declaration of Jeffrey S. Pagliuca
“Pagliuca Decl.”), Composite Ex. A (Testimony of Plaintiff Virginia Giuffre on May 3, 2016), at
26-27, 220-226. Plaintiff admitted that she did not spend her sweet 16th birthday with Mr.
Epstein and Ms. Maxwell as she included in her book manuscript, her Jane Doe #102 Complaint
and in the story she sold to the Daily Mail. Id. at 102. Plaintiff’s counsel has admitted that it
was a mistake to sue Alan Dershowitz for defamation, after he provided them documentation
establishing he never was in their client’s presence, nor did he have sex with her. Pagliuca Decl.,
Ex. B. And Plaintiff’s story about attending a dinner party with Bill Clinton on Little St. James
was debunked by none other than former FBI head, Louis Freeh. Id.
Yet, undeterred, Plaintiff and her counsel continue to use this lawsuit to seek discovery of
matters far afield of the one simple question posed in the defamation claim, to explore events
that occurred well past 2002, when Plaintiff lived in Australia and had no contact with Ms.
Maxwell or Mr. Epstein. The current witch-hunt has now expanded into the private personal life
1
Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 4 of 27
of defendant Ghislaine Maxwell. The harassing, extended, repetitive, cumulative and redundant
continued deposition of Ms. Maxwell should be concluded.
FACTUAL BACKGROUND
On April 22, 2016 Plaintiff deposed Ms. Maxwell for a full seven hours. The transcript
of that deposition is 418 pages long. Ms. Maxwell did not assert any privilege against self-
incrimination and was questioned extensively about, among other things: her relationship with
Jeffrey Epstein, her knowledge of “sexual trafficking,” sex with minors, non-consensual sex, sex
involving the Plaintiff and others, sex involving Plaintiff and Mr. Epstein, sex involving the
Plaintiff and Ms. Maxwell, sex involving the Plaintiff, Ms. Maxwell and Mr. Epstein. She was
asked questions about whether she recruited girls for Ms. Epstein to have sex with, her
knowledge of Ms. Epstein’s sex with a number of people. She was asked questions about “sex
toys,” pornographic images, child pornography, and nudity at Mr. Epstein’s house. Ms. Maxwell
answered these questions, and many others, to the best of her ability. See Pagliuca Decl.,
Composite Exhibit C (Transcript of (First) Deposition of Ghislaine Maxwell on April 22, 2016).
During her first deposition, Ms. Maxwell was freely questioned and testified about the
following:
x She never had a sexual encounter with Plaintiff, ever. Id. at 76:3-11.
x She never saw Plaintiff massage Mr. Epstein. Id. at 75:12-24.
x She never saw Jeffrey Epstein and Plaintiff in a sexual situation. Id. at 75:23- 76:l.
x She did not have a set of outfits for Plaintiff to wear. Id. at 69:1-24, and again at 117:4-
15.
x She had no knowledge of any non-consensual sex acts involving Mr. Epstein. Id. at 55:5-
15.
x She never had non-consensual sex with anyone. Id. at 62:19-20 & 63:23-25.
2
Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 5 of 27
x She did not train Plaintiff to “recruit” other girls for massages or sexual massages. Id. at
81:21- 82:7.
x She never arranged for or asked Plaintiff to have sex with anyone. Id. at 58:6-11.
x She never gave a massage with Plaintiff in the room with Mr. Epstein. Id. at 19:16-21.
x She never gave a massage to Mr. Epstein with a female that was under the age of 18 in
the room. Id. at 22:11-14.
x She never observed Mr. Epstein having a massage given by an individual, a female, who
was under the age of 18. Id. at 22:15-18.
x She never had sex with . Id. at 38:19-23.
x She never observed Jeffrey Epstein having sex with Id. at 38:24- 39:2.
x She was unaware if Jeffrey Epstein was having sexual contact with when
she was 13 years old. Id. at 39:3-5.
x She was never involved in an orgy with . Id. at 40:16-18.
x She had no knowledge of whether was involved with sex with Jeffrey
Epstein and girls over the age of 18. Id. at 46:13-16.
x She had no knowledge of whether recruited other girls for sex with Jeffrey
Epstein. Id. at 46:17-21.
x She did not know the precise nature of Jeffrey Epstein’s relationship with Sara Kellen. Id.
at 48:5-6.
x She was unaware of any sexual acts with masseuses and Jeffrey Epstein that were non-
consensual. Id. at 55:5-15.
x She discussed her knowledge of Annie Farmer. Id. at 55:17- 56:20.
x She had no knowledge of Annie Farmer telling the police that Jeffrey Epstein sexually
assaulted her. Id. at 56:16-20.
x She had no knowledge of Emmy Taylor having sex with Jeffrey Epstein. Id. at 65:10-15.
x She never had sex with Jeffrey Epstein, Plaintiff, and Emmy Taylor. Id. at 65:8-10.
x She had no knowledge of Emmy Taylor bringing females to the house to massage Jeffrey
Epstein. Id. at 67:5-13.
x She had no knowledge about a basket of sex toys. Id. at 70:25- 75:4 and again at 242:3-
243:13.
3
Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 6 of 27
x She was unaware of Jeffrey Epstein ever having his nipples pinched while having sex
with a minor. Id. at 82:23-83:4.
x She never met anyone underage in London to provide a massage for Jeffrey Epstein. Id.
at 97:25-98:5.
x She had no knowledge about Jean Luc Brunel bringing girls to Jeffrey Epstein for the
purpose of providing massages. Id. at 99:2-21.
x She never participated in obtaining visas for foreign girls. Id. at 100:9.
x She did not believe it was Jeffrey Epstein’s preference to start sex with a massage. Id. at
100:10-20.
x She never trained a female under the age of 18 at Jeffrey Epstein’s home. Id. at 157:5-10.
x She has no knowledge whether ever asked females to come over to see
Jeffrey Epstein for the purpose of sexual massage. Id. at 268:21-24.
x She had no knowledge of any sexual relationship between Jeffrey Epstein and Anouska
DiGeorgio. Id. at 305:5-23.
x She was aware of and understood that she was Jeffrey Epstein’s girlfriend
and spent a lot of time with him in 1999-2000. Id. at 364:5-365:11.
Because Ms. Maxwell had not, by virtue of becoming a defendant in this case, injected
her entire personal sexual history into this litigation counsel for Ms. Maxwell, during the first 7
hour deposition, instructed Ms. Maxwell to not answer questions related to consensual sexual
activity with adults. No objection was raised, and no instruction to not answer lodged, to
questions regarding Ms. Maxwell’s knowledge of sexual activity (consensual or non-consensual)
by Mr. Epstein or others with children, Plaintiff, or other persons. No objections were made, or
instructions to not answer, to questions about whether Ms. Maxwell assisted Mr. Epstein in the
alleged sexual trafficking of the Plaintiff from 1999 to 2002. Ms. Maxwell answered questions
about sexual trafficking, prostitution, her job with Mr. Epstein, and police reports related to Mr.
Epstein. Ms. Maxwell was questioned, without any instruction not to answer, about message
pads, phone lists, the hiring practices related to massages, hiring practices in general, whether
Jeffrey Epstein had a scheme to recruit underage girls for sexual massages and whether Jeffrey
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Epstein’s assistants would arrange times for underage girls to perform sexual massages.
Pagliuca Decl., Ex. C at 253-55. She was extensively questioned about various message pads
recovered from Jeffrey Epstein’s home by the Palm Beach Police Department. Id. at 147:23-
167:23. She was extensively questioned regarding her knowledge about Johanna Sjoberg. Id. at
307:6-312:12. She was extensively questioned about a list containing names and phone numbers
under the heading “Massage Florida.” Id. at 313:18 – 334:8. Simply stated, with the exception of
her adult consensual sex life, Plaintiff was free to question Ms. Maxwell, and in fact questioned
Ms. Maxwell on any topic. Importantly, Plaintiff’s original motion recognized this fact, seeking
only to response Plaintiff on one subject: “Defendant should be ordered to sit for a follow-up
deposition and directed to answer questions regarding her knowledge of alleged “adult” sexual
activity.” Plaintiff’s Motion to Compel Deposition Questions, WHEREFORE Clause, at 10
(Doc. # 143).
On June 20, 2016 the Court issued its Order allowing Ms. Maxwell to be re-deposed on a
limited basis. The Court authorized questioning relating to:
1. Ms. Maxwell’s sexual activity with or involving Jeffrey Epstein;
2. Ms. Maxwell’s sexual activity with or involving the Plaintiff;
3. Ms. Maxwell’s sexual activity with or involving underage females;
4. Ms. Maxwell’s sexual activity involving or including massage with individuals
Ms. Maxwell knew were or were likely involved with Mr. Epstein;
5. Ms. Maxwell’s knowledge of sexual activities of others with or involving Epstein;
6. Ms. Maxwell’s knowledge of sexual activities of others with or involving
Plaintiff;
7. Ms. Maxwell’s knowledge of sexual activity of others with underage females
known to Epstein or believed to be known to Epstein;
8. Ms. Maxwell’s knowledge of sexual activity of others involving massage with
individuals Ms. Maxwell knew or believed might be known to Epstein.
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The continued deposition was expressly limited to the above eight categories, and the
Court instructed that Ms. Maxwell “need not answer questions that relate to none of these
subjects or that is clearly not relevant, such as sexual activity of third-parties who bear no
knowledge or relation to key events, individuals, or locations of this case.” Order of June 20,
2016 at 10 (Doc. # 264-1). Presumably the Court did not authorize repetitive questioning about
topics that had been asked and answered in the prior deposition.
Ms. Maxwell had already been subjected to, and fully answered, questions related the
majority of the 8 topics in her first 7-hour deposition. Questions related to topics 2, 3, 5, 6, and 7
had all been answered in the negative, i.e., Ms. Maxwell did not have any sexual contact with the
Plaintiff (2), did not have sexual contact with any underage females (3), did not have any sexual
contact with anyone during a massage (4); had no knowledge of Epstein’s sexual activity other
than with Ms. Maxwell (5); had no knowledge of sexual activity with others and the Plaintiff
(6); and Ms. Maxwell’s knowledge of sexual activity of others with minors. Topics 4 and 8 had
been substantially answered, in the negative. The instruction not to not to answer questions
about sexual activity and massages was limited to any activity involving consensual adults. See
Plaintiff’s Motion to Compel Deposition Questions at 10 (Doc. #143).
Given that the majority of the questions had already been posed and answered over a full
seven-hour time period one might reasonably assume that Ms. Maxwell’s second deposition
would be short and direct. Unfortunately, Plaintiff’s counsel chose to ignore the Court’s Order,
repeatedly sought to reopen previously completed deposition topics and tried to ask questions
about new topics completely unrelated to the limited purpose authorized. Pagliuca Decl., Ex. D
(Transcript of (Second) Deposition of Ghislaine Maxwell on July 22, 2016). The entire
deposition was far beyond the specific request made by Plaintiff in her Motion that Ms. Maxwell
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be required to answer questions about adult consensual sexual activity – the only questions on
which instructions were given in the first deposition. Yet, broad latitude was given by counsel in
the deposition, permitting pages of duplicative, redundant examination on countless topics which
had already been asked and fully answer in the first disposition. By way of example:
First Deposition Second Deposition
Duplicative Topic of Questioning
(Exhibit C) (Exhibit D)
Circumstances surrounding her first meeting of
Plaintiff and if she held herself out as a
professional masseur
14:9-19:18
35:11-36:20
213:5-220:3 -65:4-70:5
-
12:22-14:8;
If she saw women under the age of 18 (first
22:15-24:9;
deposition) or 21 (second deposition) at 71:20-73:18
99:2-100:4;
Epstein’s houses
122:19-122:14
Her knowledge of Ms. Sjoberg, her job, how she
was hired, and if Ms. Maxwell ever received
massages from Ms. Sjoberg
59:7-63:16;
286:23-293:13;
307:6-312:12 -74:2-78:191
Knowledge of or meetings with Maria or Annie 55:20-56:20; 95:14-98:10;
Farmer 62:21-25 103:19-113:22
Her knowledge of Nadia Marcinkova and
interactions with Mr. Epstein
-
40:19-47:14
120:22-122:5;
126:22-129:12
1
Consistent with Ms. Maxwell’s testimony, Ms. Sjoberg testified that 1) all massages she gave
to Ms. Maxwell were ordinary professional massages, and never of a sexual nature; 2) Ms.
Maxwell and she never engaged in any sexual activity, nor was it ever requested; and 3) all
interactions she had at Mr. Epstein’s property of a sexual nature were consensual activities while
she was an adult. Pagliuca Decl., Ex. E, at 94-96; 101; see generally Response at 20-21, infra.
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First Deposition Second Deposition
Duplicative Topic of Questioning
(Exhibit C) (Exhibit D)
47:15-49:18;
Her knowledge of Sara Kellen, when she last 56:21-57:11;
spoke to Ms. Kellen, what Ms. Kellen’s job was, 254:25-256:8; 117:14-118:9;
and her knowledge of sexual relations between 328:21-329:6; 125:2-126:21
Ms. Kellen and Mr. Epstein 396:4-21;
411:14-412:22
329:7-330:12;
Her interactions with Alfredo Rodriguez 129:15-132:6
331:9-335:10
Her knowledge concerning Jean Luc Brunel’s
sexual activities or interaction with Mr. Epstein
379:22-380:18;
99:14-21;
116:19-117:3;
166:21-167:23
-
150:6-17
Her knowledge of the identities of a list name 312:15-334:8 179:16 -184:15
titled “Massage – Florida” from an address book
marked in the first deposition and discussed at
length
THE QUESTIONS
I. PLAINTIFF’S FAILURE TO IDENTIFY THE SPECIFIC QUESTIONS
CLAIMED UNANSWERED REQUIRES DENIAL OF THE MOTION
•
Plaintiff broadly, and inaccurately, claims now that at her second deposition, Ms.
Maxwell “refused to answer many questions” related to sexual activity or “refused to answer
questions about subject integral to this lawsuit.” Motion at 3-4. This assertion is patently
dispelled by a review of the second deposition transcript which is 193 pages long. Pagliuca
Decl., Ex. D. The deposition began at 9:04 a.m. and concluded at 2:51 p.m. The total time Ms.
Maxwell testified in this deposition was 4 hours and 52 minutes for a total combined deposition
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time of 11 hours and 52 minutes. A total of 787 questions were posed to Ms. Maxwell in the
second deposition. Ms. Maxwell answered every question posed to her that fell within the scope
of the June 20 Order, many that were outside the scope, and countless questions that had been
asked and answered in her first deposition.
It is difficult to discern precisely what questions Plaintiff is complaining about in her
Motion because of her generalized and non-specific complaints. Plaintiff fails to cite to a single
instruction not to answer that 1) falls within the scope to the Court’s Order and 2) that was not
answered when properly rephrased to fall within the scope of the Order. S.D.N.Y. Local Rules
require that:
A party seeking or opposing relief under Fed. R. Civ. P. 26 through 37
inclusive, or making or opposing any other motion or application, shall
quote or attach only those portions of the depositions, interrogatories,
requests for documents, requests for admissions, or other discovery or
disclosure materials, together with the responses and objections
thereto, that are the subject of the discovery motion or application, or
that are cited in papers submitted in connection with any other motion or
application. See also Civil Local Rule 37.1.
The failure to comply with Rule 37.1 and set forth the particular questions or responses
Plaintiff claims are deficient is “enough to require denial of the motion.” Sibley v. Choice Hotels
Int'l, No. CV 14-634 (JS) (AYS), 2015 WL 9413101, at *5 (E.D.N.Y. Dec. 22, 2015) (denying
motion to compel where party failed to identify the specific questions and responses to
interrogatories claimed deficient); see also Kilkenny v. Greenberg Traurig, LLP, No. 05 CIV.
6578NRB, 2008 WL 371808, at *1 (S.D.N.Y. Feb. 7, 2008) (denying motion to compel where
specific questions and objection were not provided, noting rule 37.1 is “This is not an academic
or ritual requirement. . . . Court cannot be tasked with performing the functions of Kilkenny's
legal counsel [by identifying claimed deficiencies] and thereby seen as advocating for one party
over another.”; Frattalone v. Markowitz, No. 91 CIV. 5854 (LMM), 1994 WL 494878, at *3
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(S.D.N.Y. Sept. 9, 1994) (permitting reopening of deposition only if party could specifically
identify areas of inquiry previously foreclosed). To the extent Plaintiff has not identified specific
questions that Ms. Maxwell was instructed not to answer she has waived any issue related to the
questioning.
II. THE REQUESTED TOPIC AREAS ARE CUMULATIVE, DUPLICATIVE
AND NO GOOD CAUSE EXISTS FOR PERMITTING ADDITIONAL
DEPOSITION TIME
Plaintiff’s proffered “topic areas” that she would like to re-open the deposition to cover –
again – makes clear that what she is asking for is additional time – in excess of the almost 12
hours she has already had – to ask questions that have already been answered. This is
impermissible under Rule 30(d)(1) which prohibits depositions in excess of 7 hours seeking the
type of duplicative and cumulative testimony Plaintiff seeks.
The only testimony cited in the Motion are instances in which Ms. Maxwell had already
fully testified on the topic area. First, she cites questions concerning Johanna Sjoberg, a witness
who has been deposed in this case. What Plaintiff ignores is that Ms. Maxwell had already been
fully examined concerning her knowledge about Ms. Sjoberg and answered every question, with
the exception of a single questions regarding adult consensual sexual activity which was
answered in the second deposition. See Pagliuca Decl., Ex. C at 59:7-63:16; 286:23-293:13;
307:6-312:12 & Ex. D at 77:24 – 78:6 (“Q. Did Mr. Epstein, insofar as you believe, engage in
sexual activities with Johanna? A. I would not know. I would say no. Q. Did you engage in
sexual activities with Johanna? A. No.”). Despite this, leeway was given, and 5 pages of
repeated testimony concerning Ms. Sjoberg commenced and was permitted until the duplicative
nature of the testimony was simply too much. See Pagliuca Decl., Ex. D at 74:2-78:19.
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Second, Plaintiff inaccurately complains that Ms. Maxwell refused to answer questions
concerning sexual activity involving two women named Annie and Maria Farmer. Motion at 6.
Not so. Ms. Maxwell answered questions for fully 13 pages of her deposition concerning the
Farmers. See Pagliuca Decl., Ex. D at 95-98 and 103-113. Ms. Maxwell answered well over 76
questions relating to Annie and Maria Farmer including who they are, when she met them,
whether she ever saw them at Epstein’s homes or her own home, whether Epstein ever had sex
with them, whether they worked for Epstein, whether they flew on planes together, gave or
received massages, participated in any sexual activities with one another, where they lived, the
description of their living environments, and whether journalist Vicky Ward ever told Ms.
Maxwell that Epstein had engaged in sexual activities. Id. This was on top of the questions that
-
Ms. Maxwell had already answered at her first deposition that were nearly identical: who are
the Farmers, how did you meet them, whether they ever made any allegations of sexual abuse by
Epstein, or whether Ms. Maxwell had ever had non-consensual sexual contact with Annie
Farmer. Pagliuca Decl., Ex. C at 95:14 -98:10 & 103:19-113:22. In fact, at the first deposition,
-
Ms. Maxwell did not refuse to answer a single question regarding the Farmers. Thus, all of the
questions at the second deposition were redundant, cumulative and outside of the Court’s Order.
The only question that Ms. Maxwell refused to answer was: “What did Vicky Ward tell you
about Maria Farmer when she talked to you?,” after which she answered another 10 pages of
questions that centered around whether Vicky Ward had said specific things regarding the
Farmers. Pagliuca Decl., Ex. D at 103-113. Ms. Maxwell has already flatly denied she had any
knowledge of the allegations posited by reporter Vicky Ward.
Plaintiff is not permitted to re-depose Ms. Maxwell on issues already covered, or which
she had the opportunity to cover, in the first 7-hour deposition, particularly in light of the
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additional 4.5 hours permitted in the second deposition and the fact that she answered in the
second deposition the only pertinent questions permitted by the Court Order. See Fed. R. Civ. P.
30(d)(1) (“the court must allow additional time consistent with Rule 26(b)(1) and (2) if needed
to fairly examine the deponent”) (emphasis added). Rule 30(d)(1) requires a court to guard
against redundant or disproportionate discovery, stating that any additional deposition time must
be consistent with Rule 26(b)(1) and (2), prohibiting, among other things, cumulative and
duplicative testimony. The duplicative nature of the “topics” requested by Plaintiff is
demonstrated by the previously cited testimony. It is compounded by the fact that Ms. Sjoberg
has fully testified concerning how she came to work for Epstein, what she did while working for
him, and how she was paid. See This Response at 20-21, infra. The redundancy of the requested
testimony (much of which is outside the scope of the Order) prohibits a finding of good cause for
reopening – yet again – Ms. Maxwell’s testimony. See Kleppinger v. Texas Dep't of Transp.,
283 F.R.D. 330, 333 (S.D. Tex. 2012) (“a party seeking a court order to extend the duration of
the examination must show ‘good cause’ to justify such an order” including showing information
is not duplicative and cumulative).
Of course, Ms. Maxwell and her counsel had no desire to subject Ms. Maxwell to a third
deposition, thus permitting many questions that far exceeded the scope of the Order. When
called on to explain how extraneous questions were proper, Plaintiff’s counsel refused to proffer
why certain questions were within the Court’s order leaving Ms. Maxwell’s counsel no option,
on a few occasions, to instruct Ms. Maxwell to not answer. Plaintiff’s counsel’s refusal to
simply explain how objectionable questions were within the scope of the permitted deposition
makes clear that they were not, and should act as a waiver. See, e.g., Pagliuca Decl., Ex. D at
99-101.
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III. COUNSEL INSTRUCTED MAXWELL NOT TO ANSWER TO ENFORCE
THE COURT’S ORDER AND TO PREVENT HARASSMENT BY
PLAINTIFF’S COUNSEL
The only questions to which counsel for Ms. Maxwell instructed her not to answer were
those that she had already answered or were outside the Court’s Order permitting a re-opening of
the deposition. Fed. R. Civ. P. 30(c)(2) (instruction not to answer appropriate “when necessary
to … enforce a limitation ordered by the court”). Plaintiff loosely points to eleven questions in
her Motion. She omits parts in which the question had already been answered, and she implies
an instruction not to answer where none was given. None of the cited questions merits the re-
opening of Ms. Maxwell’s deposition for a third bite at the apple.
A. Objected to Question Number 1:
“So how did it happen, Ms. Maxwell, that Joanna, who had been hired to answer phones,
ended up giving massages to you and Mr. Epstein.”
In Ms. Maxwell’s first, 7 hour, deposition she was questioned extensively about her
relationship with Ms. Sjoberg. See Pagliuca Decl. Ex. C at 59-63; 112-113; & 307-309.
Consistent with the Defendant’s position at that time, Plaintiff was free to ask, and asked,
questions about Ms.Sjoberg with the exception of consensual adult sexual contact. The only
instruction to not answer was limited to consensual adult sexual contact, of which there was
none. (Although in fact, Ms. Maxwell testified in her first deposition that the massages with Ms.
Sjoberg did not involve sex.). See Pagliuca Decl. Ex. C at 61:14-15..
In Ms. Maxwell’s second, 4.5 hour deposition, she was again questioned extensively
about Ms. Sjoberg. The questioning begins on page 74 of the transcript. Plaintiff’s counsel
asked dozens of questions about Ms. Sjoberg without any instruction to not answer. When the
questions became repetitive to the questions asked at the first deposition and strayed outside the
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Court’s Order counsel for Ms. Maxwell sought guidance form the Court, which was not
-
available.
Notwithstanding that the examination was repetitive, Ms. Maxwell responded to
questions, without instruction not to answer, that were within the Court’s Order. She testified
that she did not have any sexual relationship or contact with Ms. Sjoberg and was unaware of
any sexual contact between Mr. Epstein and Ms. Sjoberg. See Pagliuca Decl. Ex. D at 77:24-
78:6. She also testified about Ms. Sjoberg and massages, both in her first deposition and the
second. See Pagliuca Decl. Ex. C at 59-63; 112-113; & 307-309 and Ex. D at 74-82:8.
When the question about Ms. Sjoberg answering phones for was asked for the fourth
time, the instruction not to answer was given. These questions had been asked in the first
deposition, could have been asked in greater detail in the first deposition, and were answered in
both depositions prior to the instruction not to answer being given: Ms. Sjoberg was hired to
answer phones and sometime after that went to massage school and began giving massages. Ms.
Maxwell was not sure how the transition occurred but believed “that she went to massage school
and became a professional masseuse.” Id., at 75:10-11.
B. Objected to Questions Number 2 and 3.
“Did Mr. Epstein pay Johanna for the massages that she gave Mr. Epstein?”
“Do you know how much Mr. Epstein paid Johanna to give massages?”
Plaintiff has selectively and misleadingly provided only a portion of the transcript related
to this issue and ignores the fact that Plaintiff, in the first deposition, asked questions on the same
topic. Moreover, Ms. Maxwell previously testified that she did not pay Ms. Sjoberg and did not
know who paid her. See Pagliuca Decl. Ex. C at 59-63; 112-113; & 307-309 and Ex. D at 82:2-
I7.
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C. “Objected” to Question Number 4.
“Do you know if Maria Farmer was ever at Mr. Wexner’s property in Ohio?”
This question is completely outside the Court’s June 20, 2016 Order as it does not relate
to Ms. Maxwell, Mr. Epstein, massages, sex, or any property identified in this case. Regardless,
the witness was never instructed to not answer the question and did not refuse to answer
questions about the Farmers. After the question was posed, counsel for Ms. Maxwell simply
asked for an explanation as to how the question was within the Court’s Order. The witness was
not instructed not to answer. It appears that after considering the request for a proffer as to how
the question was within the Court’s Order, the question was withdrawn and a different question
was posed: “Mr. Boies: Let me approach it this way.” … Did Ms. Ward tell you that?” The
questioning about the Farmers continues many pages thereafter. See Pagliuca Decl., Ex. D at 99-
-
113.
D. “Objected” to Question Number 5
Without any record support Plaintiff claims that “Defendant’s counsel also stopped a line
of questioning in which defendant was asked if she recalled several girls Tony Figueroa brought
over to give a ‘massage’ to Epstein.” Plaintiff cites no specific instruction not to answer because
one was never given. Ms. Maxwell answered questions about Mr. Figueroa and was questioned
extensively regarding lists of names, about which Ms. Maxwell had no knowledge. Plaintiff was
not forced to “cease questioning” about any person. The questioning occurred and Ms. Maxwell
-
responded.
E. “Objected” to Question Number 6
“Was there a list that was kept of women or girls who provided massages?”
The “list” was introduced as Exhibit 13 to Ms. Maxwell’s first deposition. Ms. Maxwell
was questioned extensively about the “list” and testified, without objection about the list. In her
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second deposition, the same Exhibit 13 was introduced and Ms. Maxwell was asked, without
objection, questions relating to specific names on Exhibit 13. See Pagliuca Decl., Ex. C at 312-
334 and Ex. D at 179- 89.
Exhibit 13 was a document prepared by someone other than Ms. Maxwell, was not
maintained by Ms. Maxwell and over which Ms. Maxwell had no control. Given the extensive
testimony on the subject in both depositions, it was appropriate to instruct the witness to not
answer the question. This debate, however is unnecessary because the question was asked again
in a slightly different form and answered: Q: “Did you, or insofar as you are aware anyone,
maintain a list of females that provided massage services to Mr. Epstein at his residences?” A: “I
don’t know anything about a list.” Id., Ex. D at 185:13-20. No follow up questions were asked
after this answer.
F. Objected to Question Number 7
“In 2005, were you aware of any effort to destroy records of messages you had taken of
women who had called Mr. Epstein in the prior period?”
Ms. Maxwell was previously deposed about documents purportedly seized when Mr.
Epstein’s house was searched by the Palm Beach Police Department. See Pagliuca Decl., Ex. C
-
at 312-19.
The Court’s June 20, Order did not reopen the deposition to allow for baseless questions
about the destruction of evidence in 2005. Alleged destruction of records has nothing to do with
any of the 8 areas that the Court addressed. Accordingly, the objection is well founded.
Plaintiff’s tortured explanation about how the question fits into the Court’s Order is nonsense.
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G. Objection to Question Number 8
“In terms of preparing for this deposition, what documents did you review?”
Ms. Maxwell was instructed to not answer the question as it related to privileged
communications between Ms. Maxwell and counsel. Ms. Maxwell was asked if any of the
documents refreshed her recollection about any of the events that occurred. Her response was:
“No.” A follow up question was asked as to whether counsel provided Ms. Maxwell with any
documents and the answer was “One, I believe.”
The communication between Ms. Maxwell and counsel was privileged, did not refresh
her recollection, and the question was properly objected to.
H. Objections to Questions 9, 10, and 11.
“Now have you ever engaged in oral sex?”
“Did you ever have oral sex with anyone in any of Mr. Epstein’s five homes that you’ve
identified other than Mr. Epstein?”
“Did you, in the 1990s and 2000s, engage in sexual activities other than intercourse with
women other than what you have testified already?”
All of these questions were prohibited by the Court’s Order because they were related to
unidentified “third-parties who bear no knowledge or relation to the key events, individuals, or
locations of this case.”
The question “Now have you ever engaged in oral sex?” is not tied to any person place,
event or time. It is clearly out of bounds. Ms. Maxwell did, in fact, answer the question about
oral sex with individuals other than Mr. Epstein when the locations were specified, i.e, planes;
New York; Palm Beach; New Mexico; Paris; and the Virgin Islands. See Pagliuca Decl., Ex. D,
Excerpts from July22, 2016 Maxwell Deposition pp. 21-23. (The answer was “no”.).
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The question: “Did you, in the 1990s and 2000s, engage in sexual activities other than
intercourse with women other than what you have testified already?” is also prohibited by the
Court’s Order as it is not tied to a person, location, or key event associated with this case.
Federal Rule of Civil Procedure 26(b)(1) provides, in relevant part, that "[p]arties may
obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of
any party ….” Although the scope of discovery is deliberately broad, a Court is not "required to
permit plaintiff to engage in a `fishing expedition' in the hope of supporting his claim." McGee v.
Hayes, 43 Fed.Appx. 214, 217 (10th Cir. 2002) (unpublished opinion); see also Tottenham v.
Trans World Gaming Corp., 2002 WL 1967023, at *2 (S.D.N.Y.2002) ("Discovery, however, is
not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out
allegations for which they initially have at least a modicum of objective support") (quotations
omitted); Hardrick v. Legal Services Corp., 96 F.R.D. 617, 618 (D.D.C.1983) (courts should,
remain concerned about "fishing expeditions, discovery abuse and inordinate expense involved
in overbroad and far-ranging discovery requests.") (quotation omitted). "[B]road discovery is
not without limits and the trial court is given wide discretion in balancing the needs and rights of
both plaintiff and defendant." Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th
Cir.1995) (quotation omitted).
Although relevance in discovery is broader than that required for admissibility at trial,
"the object of inquiry must have some evidentiary value before an order to compel disclosure of
otherwise inadmissible material will issue." Zenith Electronics Corp. v. Exzec, Inc., No. 93 C
041, 1998 WL 9181, at *2 (N.D.I11.1998) (quoting Piacenti v. Gen. Motors Corp., 173 F.R.D.
221, 223 (N.D.I11.1997)). Courts have also recognized that "[t]he legal tenet that relevancy in
18
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the discovery context is broader than in the context of admissibility should not be misapplied so
as to allow fishing expeditions in discovery." Id. (quotation omitted).
Under Rule 26(c) of the Federal Rules of Civil Procedure any party may move the court,
for good cause shown, for a protective order regarding pretrial discovery “which justice requires
to protect a party or person from annoyance, embarrassment, oppression or undue burden or
expense.” Fed. R. Civ. P. 26(c). “Although the Rule contains no specific reference to privacy or
to other rights or interests that may be implicated, such matters are implicit in the broad purpose
and language of the Rule.” Seattle Times Company v. Rhinehart, 467 U.S. 20, 35 (1984).
It is important to consider, again, that Ms. Maxwell is the defendant in this action. She
has not put her private affairs at issue. She simply denied that she assisted Jeffrey Epstein in the
sexual trafficking of the Plaintiff. It is also important to recognize that Ms. Maxwell is not Mr.
Epstein and Mr. Epstein’s alleged conduct after Plaintiff left the country is not an issue in this
defamation case. The Plaintiff has no personal knowledge of any of Mr. Epstein’s activities after
2002. Accordingly, any statements by Plaintiff about Mr. Epstein’s activities occurring after
2002 are her opinions, not facts that are subject to any defamation claim.
I. THE PURPORTED “FACTUAL BACKGROUND” CITED BY PLAINTIFF
IS NOT RELEVANT TO THE ISSUES IN THE CASE OR THIS MOTION
As Carl Sandburg famously said, “If the facts are against you, argue the law. If the law is
against you, argue the facts. If the law and the facts are against you, pound the table and yell like
hell.” In this case, rather than pound the table, Plaintiff tries to distract from the issues at hand –
whether Ms. Maxwell fully answered all questions posed – by pointing to selective misleading
quotes from various other witnesses who have been deposed in this case. When viewed in their
entirety, those witnesses neither support Plaintiff’s single claim for defamation nor her claim for
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relief in this Motion. In direct contradiction to Plaintiff’s fabricated story, the witnesses actually
testified as follows:
Johanna Sjoberg worked as a masseuse for Jeffrey Epstein for 5 years from 2001-2006,
while she was aged 21-26, including 1 ½ years that Plaintiff claims she was his “sex slave”. As
to that experience, Ms. Sjoberg testified:
x She never saw underage girls with Jeffrey Epstein or Ms. Maxwell and was “surprised”
by the allegations of underage girls. Pagliuca Decl., Ex. E at 102. She never witnessed
anyone underage in the presence of Epstein and Maxwell. Id. at 29. She only witnessed
masseuses who were her age or older and they wore “normal” clothes. Id. at 31-32.
x She never was asked by Epstein or Maxwell to give sexual massages to any of their
friends or any famous people and the massages she gave Epstein’s friends were purely
non-sexual. Id. at 112-116.
x She never gave any type of sexual massages to Ghislaine Maxwell. Ms. Maxwell never
asked her to get naked during a massage, never asked for any sexual contact with her, and
she remained appropriately draped during any massages. Ms. Maxwell was never present
when she gave massages to Mr. Epstein. Id. at 95-97.
x Plaintiff appeared to Ms. Sjoberg to be some type of assistant who possibly also gave
massages to Epstein. Id. at 19. She never seemed traumatized, she never reported to her
any inappropriate requests or contact by Epstein or Maxwell, never said she had been
sexually trafficked, she freely came and went. Id. at 113-16. In the only massage by
Plaintiff of Epstein that Ms. Sjoberg observed, Plaintiff was fully clothed, on a beach, and
it was non-sexual. Id. at 27. Ms. Sjoberg never saw Plaintiff in the presence of any
famous people, apart from Prince Andrew and she did not observe anyone asking
Plaintiff to do anything sexual, nor did Plaintiff report to her that anything sexual had
occurred, even though Ms. Sjoberg inquired. Id. at 85, 87, 113 & 120. Plaintiff
disappeared from the Epstein home about June 2001 when attempts to contact her led to a
seemingly drugged-out boyfriend who could not explain her whereabouts. Id. at 92.
x Despite hundreds of times in the Epstein home, Ms. Sjoberg only saw a few photos of
adult women in topless poses in the bathroom of Epstein, there was no child pornography
in the homes, and she does not recall any naked photos of Plaintiff. Id. at 25, 29, 42, 103-
106.
x Ms. Sjoberg observed no orgies or sexual contact occur in the open at Epstein’s homes or
on his planes. Id. at 94, 102.
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Case 1:15-cv-07433-LAP Document 1327-26 Filed 01/05/24 Page 23 of 27
x Ms. Maxwell asked her if she knew any friends who might be interested in being
masseuses, but the one she brought was an adult; Ms. Maxwell never asked for
“underage” participants. Id. at 141, 152-53.
x Whatever sexual contact occurred between Ms. Sjoberg and Mr. Epstein was between
“consenting adults,” as she told the police in 2006, and she only was “expected” to have
sexual intercourse in 2005, after she had worked for him for 4 years. Id. at 101, 147.
x Ms. Sjoberg respects Ms. Maxwell and is impressed by her talents. Id. at 55, 94-95, 97-
98, 147 She have a lot of fun the last time they hung out in 2006. Id. at 98.
Joe Reca
giuffre-maxwell
Unknown
17 pages
Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 1 of 17
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF, VIRGINIA GIUFFRE’S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO DISLCOSE
PURSUANT TO FED. R. CIV. P. RULE 26(a)(1)
BOIES, SCHILLER & FLEXNER LLP
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Sigrid McCawley (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
Ellen Brockman
Boies, Schiller & Flexner LLP
575 Lexington Ave
New York, New York 10022
(212) 446-2300
1
Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 2 of 17
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.......................................................................................................... ii
I. PRELIMINARY STATEMENT ............................................................................................1
II. ARGUMENT .........................................................................................................................3
A. Ms. Giuffre’s Computation Of Damages Are Sufficient And Go
Beyond The Requirements Of Rule 26(a). ....................................................................3
B. The Claimed $102,000 For Future Medical Expenses Is Supported By Proper
Calculations And Supporting Documents. ....................................................................5
C. Plaintiff’s Non-Economic Computation Of Damages Complies With Rule 26............6
D. Ms. Giuffre Can Base Alleged Lost Income On “The Jobs of Others” – i.e.,
On Standard Economic Estimation Techniques. ...........................................................8
E. Plaintiff Has Not Refused To Provide Addresses And Telephone Numbers ..............10
F. Defendant Is Not Prejudiced And She Has Not Made A Showing of Prejudice.........11
CONCLUSION .............................................................................................................................12
i
Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 3 of 17
TABLE OF AUTHORITIES
Page
Cases
Cantu v. Fanigan,,
705 F. Supp. 2d 220 (E.D.N.Y. 2010) ..................................................................................4, 6, 8
Celle v. Filipino Reporter Enters., Inc.,
209 F. 3d 163 (2d Cir. 2000) ........................................................................................................3
City & Cty. of San Francisco v. Tutor Saliba Corp.,
218 F.R.D. 219 (N.D. Cal. 2003) ...............................................................................................10
In re Jolly Roger Cruises & Tours, S.A.,
2011 U.S. Dist. LEXIS 44143, 2011 WL 1467172 (S.D. Fla. April 18, 2011) ...........................7
Matter of Kaplan,
8 N.Y.2d 214, 168 N.E.2d 660, 203 N.Y.S. 2d 836 (1960) .......................................................11
Max Impact, LLC v. Sherwood Grp., Inc.,
No. 09 Civ. 902, 2014 WL 902649 (S.D.N.Y. Mar. 7, 2014) .....................................................7
Murray v. Miron,
No. 3:11 CV 629 JGM, 2015 WL 4041340 (D. Conn. July 1, 2015) ..........................................4
Naylor v. Rotech Healthcare, Inc.,
679 F. Supp. 2d 505 (D. Vt. 2009) .......................................................................................2, 5, 8
Pine Ridge Recycling, Inc. v. Butts Cty., Ga.,
889 F. Supp. 1526 (M.D. Ga. 1995) ..........................................................................................10
Robertson v. Dowbenko,
443 F. App'x 659 (2d Cir. 2011)...............................................................................................2, 3
Rosenberg v. DVI Receivables, XIV, LLC,
No. 12-CV-22275, 2012 WL 5198341 (S.D. Fla. Oct. 19, 2012) ...............................................7
Scheel v. Harris,
No. CIV.A. 3:11-17-DCR, 2012 WL 3879279 (E.D.Ky. Sept. 6, 2012) ................................4, 6
Statutes
Federal Rule of Civil Procedure 26 .........................................................................................2, 3, 4
Federal Rule of Civil Procedure 37 .................................................................................................4
ii
Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 4 of 17
Plaintiff Virginia L. Giuffre, by and through her undersigned counsel, respectfully submits
this Response in Opposition to Defendant’s Motion to Compel Plaintiff to Disclose Pursuant to
Fed. R. Civ. P. 26(a)(1) [D.E. 64]. For the reasons set forth below, this Court should deny
Defendant’s Motion to Compel in its entirety.
I. PRELIMINARY STATEMENT
Defendant filed an unfounded motion to compel in an attempt to avoid her deposition on
Friday. Message pads from law enforcement trash pulls from Jeffrey Epstein’s home show that
Defendant arranged to have underage girls come over for “training.” Defendant flew on convicted
pedophile Jeffrey Epstein’s private plane no less than 360 times, and over 20 times with Plaintiff
when Ms. Giuffre was a minor child. Additionally, two witnesses have invoked their Fifth
Amendment rights when asked whether they witnessed Defendant sexually trafficking minors.
This is not the first time Defendant has attempted to avoid her deposition. Indeed, Defendant
previously misrepresented her ability to sit for a deposition in a related civil case in 2009. See
Declaration of Sigrid McCawley (“McCawley Decl.”) at Exhibit 1, 2009 Notice of Taking
Deposition, Subpoena and Cancellation Notice, and Daily Mail Article. Now, on the eve of her
deposition, Defendant is desperately trying to manufacture baseless objections in an attempt to
avoid going forward with the deposition.
To date, despite this Court’s order overruling Defendant’s objections on time period,
Defendant has produced only two documents to Ms. Giuffre. Meanwhile, Ms. Giuffre has
expended considerable resources, including retaining an e-discovery company, to make a nearly-
complete and speedy production of 4,274 pages of responsive documents to Defendant’s
indiscriminate and wide-ranging discovery requests, requests that include, for example, all of Ms.
Giuffre’s correspondence with her family over the last 18 years.
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Turning to Ms. Giuffre’s voluminous Rule 26 Disclosures, Ms. Giuffre has fulfilled her
discovery obligations under the applicable Rule. It is noteworthy that Plaintiff provided timely
Rule 26 disclosures on November 11, 2015 and Defendant completely disregarded the Rule 26
disclosures and waited four months before producing disclosures. Rule 26 requires that a party
disclose “the name and, if known, the address and telephone number of each individual likely to
have discoverable information.” Per the Rule, Ms. Giuffre has provided “all known” addresses and
phone numbers for the witnesses. For witnesses known to be represented by counsel, Plaintiff has
provided counsel’s address and phone numbers. Defendant herself also failed to list address
information for approximately 10 witnesses in her Rule 26 Disclosures. Presumably this omission
was due to the fact that those addresses are unknown to Defendant.
Regarding Ms. Giuffre’s Rule 26 computation of damages Plaintiff provided amounts,
damage calculations and supporting evidence required under Rule 26. Ms. Giuffre has pled
defamation per se under New York law, where damages are presumed. Robertson v. Dowbenko,
443 F. App'x 659, 661 (2d Cir. 2011). Plaintiff is retaining experts to support her Rule 26
Disclosures, and expert reports and disclosures are not due in this matter until July, 2016.
Defendant takes issues with Ms. Giuffre’s computation of damages in her Rule 26 disclosures but
fails to cite to a single case that requires more from her, let alone more from a Plaintiff claiming
defamation per se. Indeed, the case law supports that Plaintiff has fully complied with her Rule 26
obligations. See Naylor v. Rotech Healthcare, Inc., 679 F. Supp. 2d 505, 510 (D. Vt. 2009).
In good faith, Ms. Giuffre has produced a multitude of documents and information
regarding her damages. Ms. Giuffre is under no obligation to do more at this stage in the
litigation, and Defendant does not cite to a single case that even suggests she is required to do
more. What Defendant is actually seeking is expert discovery and an expert report on computation
of damages. Rule 26(a)(1), under which Defendant moves, governs “initial disclosures,”
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Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 6 of 17
disclosures to be made at the beginning of litigation, prior to the completion of expert work. It
does not entitle a party to expert discovery at this stage in the case, months before expert discovery
closes, and before Ms. Giuffre has even retained her testifying expert.
Therefore, this Motion to Compel is a failed attempt to manufacture issues to delay Ms.
Maxwell’s deposition. Defendant has made no showing of prejudice whatsoever, particularly in
relation to her deposition on Friday. Defendant has made no showing whatsoever that the absence
of unknown addresses for witnesses in Ms. Giuffre’s Rule 26 disclosures would create any
prejudice. Moreover, Defendant has made no showing that an unnecessary, fuller depiction of Ms.
Giuffre’s computation of damages is required to avoid prejudice at her deposition on Friday; she
fails to cite a single case in support of her argument on this point. In fact, Ms. Giuffre, as promised
to the Court at Thursday’s hearing, has produced each and every document that will be used at Ms.
Maxwell’s deposition, even providing Defendant with a specific list of all documents that will be
used at her deposition. Accordingly, Defendant’s deposition should go forward as scheduled.
II. ARGUMENT
A. Ms. Giuffre’s Computation Of Damages Are Sufficient, And Go Beyond The
Requirements Of Rule 26(a).
Plaintiff has satisfied her requirements under Fed. R. Civ. P. 26, and Defendant has failed
to put forth any authority to the contrary. Defendant now moves the Court, seeking more than
what she is entitled to, in order to manufacture a reason to delay Defendant’s deposition.
Ms. Giuffre has pleaded and will prove defamation per se, where damages are presumed.
Robertson v. Dowbenko, 443 F. App'x at 661 (“As the district court correctly determined,
Robertson was presumptively entitled to damages because he alleged defamation per se.”). Under
New York law, defamation per se, as alleged in this case, presumes damages, and special damages
do not need to be pled and proven. See Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 179
(2d Cir. 2000) (holding that “[i]f a statement is defamatory per se, injury is assumed. In such a
3
Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 7 of 17
case ‘even where the plaintiff can show no actual damages at all, a plaintiff who has otherwise
shown defamation may recover at least nominal damages,’” and confirming an award of punitive
damages) (internal citation omitted). “In assessing the amount of damages to award for
defamation, a jury is not limited to compensating the plaintiff for ‘economic’ losses, such as
demonstrable lost profits. Rather, a plaintiff may suffer ‘non-economic’ injuries as well. Among
these is the loss of reputation, which includes the loss of professional status and the ability to earn
wages, as well as any humiliation or mental suffering caused by the defamation.” Cantu v.
Flanigan, 705 F. Supp. 2d 220, 227 (E.D.N.Y. 2010) (internal citations omitted).
Importantly, “[i]n calculating non-economic damages in a defamation case, including
humiliation, mental suffering and damage to plaintiff's reputation, a jury may properly consider a
number of factors. In this case, the jury was instructed to consider: [1] the plaintiff's standing in
the community, [2] the nature of defendant's statements made about the plaintiff, [3] the extent to
which the statements were circulated, [4] the tendency of the statement to injure a person such as
the plaintiff, and [5] all of the other facts and circumstances in the case.” Cantu v. Flanigan, 705
F. Supp. 2d at 227-28 (internal citations and quotations omitted).
Additionally, Ms. Giuffre has claimed punitive damages for the defamation per se.
“[C]ourts have generally recognized that ... punitive damages are typically not amenable to the
type of disclosures contemplated by Rule 26(a)(1)(A)(iii), and have held that the failure to disclose
a number or calculation for such damages was substantially justified.” See Murray v. Miron, No.
3:11 CV 629 JGM, 2015 WL 4041340, at *4 (D. Conn., July 1, 2015). See also Scheel v. Harris,
No. CIV.A. 3:11-17-DCR, 2012 WL 3879279, at *7 (E.D. Ky. Sept. 6, 2012) (finding that a
failure to provide a precise number or calculation for their punitive damages claim is substantially
justified pursuant to Fed.R.Civ.P. 37(c)(1)).
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B. The Claimed $102,000 for Future Medical Expenses is Supported By Proper
Calculations And Supporting Documents
Defendant takes the position that Ms. Giuffre has to provide all of the information that
would be presented to a jury upon which to make an “award[] of damages” in her initial
disclosures. That is not the law. It’s not even close. Revealingly, the first two cases Defendant
cites in support of her made-up demands are state court cases discussing what type of damages
showing is necessary at trial and in order to be awarded a default judgment.
Importantly, in Defendant’s entire argument about the alleged deficiency of Ms. Giuffre’s
damages computations in her initial disclosures, there is not one single authority setting forth what
must go into the initial disclosures for damages. Indeed, there is not even a federal case cited in the
argument for this section of the brief. This is because Defendant cannot put forth any opinion
authored by any court that determined that damages computations are deficient at the level of
detail Ms. Giuffre has provided.
With regard to the Rule 26 disclosures for computation of damages, a detailed initial
disclosure of a computation of damages is unnecessary. See Naylor v. Rotech Healthcare, Inc.,
679 F. Supp. 2d at 510 (“The Court is skeptical of the need for so much additional discovery, since
the only open issue on the defamation claim seems to be damages. Miles's email itself provides
evidence of the statement and publication to a third party. Damages will depend on [plaintiff]
Naylor's testimony and perhaps evidence from a few other sources, such as Naylor's family and
friends, or Streeter [one of defendant’s clients].”) Despite this, Ms. Giuffre has provided the
calculations evidencing how she arrived at her damage figures and has provided a myriad of
documents upon which she also will rely in proving damages. This includes supporting
documents showing average medical expenses computed by her average life expectancy.
Specifically, Ms. Giuffre’s Rule 26 disclosures provided as follows:
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Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 9 of 17
1. Physical, psychological and psychiatric injuries and resulting medical expenses – in
an amount of approximately $ 102,200 present value.
a. Computation Analysis:
i. Giuffre has had to receive treatment for the psychological harm as a
result of Maxwell’s conduct towards Giuffre.
ii. The average annual expenditures for mental health services for adults
18-64 in the United States is $1,751.
iii. Giuffre needs continuing care as a result of the harm she has suffered.
Ms. Giuffre was born August 9, 1983 and was 31.4 years old at the
beginning of 2015 when the alleged harm occurred. The average
remaining life expectancy for a 31 year old female is 51.1 years.
iv. Based on a remaining life expectancy of 51.1 years, annual healthcare
costs growth of 3.3% and a discount rate of 2.7%, the present value of
expected treatment costs is $102,200 as of 1/1/2015.
b. Supporting Evidence:
i. Ms. Giuffre is in the process of collecting records from her physicians.
ii. Ms. Giuffre’s testimony.
iii. Ms. Giuffre is in the process of retaining an expert to calculate
damages, and will provide further information through expert
disclosure.
See McCawley Decl. at Exhibit 2, Plaintiff’s Revised Rule 26 Disclosures, and Exhibit 3,
Addendum to Rule 26 Disclosures.
C. Plaintiff’s Non-Economic Computation of Damages Complies with Rule 26
As stated above, “[i]n calculating non-economic damages in a defamation case, including
humiliation, mental suffering and damage to plaintiff's reputation, a jury may properly consider a
number of factors. In this case, the jury was instructed to consider: [1] the plaintiff's standing in
the community, [2] the nature of defendant's statements made about the plaintiff, [3] the extent to
which the statements were circulated, [4] the tendency of the statement to injure a person such as
the plaintiff, and [5] all of the other facts and circumstances in the case.” Cantu v. Flanigan, 705
F. Supp. 2d at 227-28 (internal citations and quotations omitted).
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“[N]on-economic damages based on pain and suffering ... are generally not amenable to
the type of disclosures contemplated by Rule 26(a)(1)(A)(iii).” Scheel v. Harris, No. CIV.A. 3:11-
17-DCR, 2012 WL 3879279, at *7 (E.D. Ky. Sept. 6, 2012) (holding that plaintiff’s failure to
disclose a number or calculation for such damages was substantially justified) (internal citation
omitted).
“For example, in cases of per se defamation under Florida law by a private plaintiff against
a non-media defendant, evidence of economic harm is not required to recover for damage to one's
reputation. In fact, in certain types of cases, evidence of economic harm is not required to recover
for damage to one’s reputation. This is because ‘in libel any language published of a person that
tends to degrade him or to bring him into ill repute, or to destroy the confidence of his neighbors
in his integrity, or to cause others like injury, is actionable per se.’” Rosenberg v. DVI Receivables,
XIV, LLC, No. 12-CV-22275, 2012 WL 5198341, at *5 (S.D. Fla. Oct. 19, 2012) (internal citations
omitted). See also In re Jolly Roger Cruises & Tours, S.A., 2011 U.S. Dist. LEXIS 44143, at *11–
*16, 2011 WL 1467172 (S.D. Fla. April 18, 2011) (explaining that “on the whole, Starkey's claims
remain one of garden variety emotional distress, that is certainly susceptible of careful
consideration by a jury without resort to experts”).
Defendant cites Max Impact, LLC v. Sherwood Grp., Inc. in her non-economic damages
argument, but it is wholly inapposite - it doesn’t even address non-economic damages. No. 09 Civ.
902, 2014 WL 902649, at *5–6 (S.D.N.Y. Mar. 7, 2014). This case involved a claim of patent and
copyright infringement, seeking lost sales, resulting in lost profits, profit made by defendant, and
legal fees. The deficiencies the Court found would not apply to a defamation case: “Sherwood
failed to provide a calculation or formula through which the figures were derived. . . . [I]t still does
not inform BamBams how the profit margins were calculated.” Id. A defamation claim does not
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involve profit margins; there is no “formula” for damages from defamation, particularly
defamation per se.
Defendant’s false statements have caused, and continue to cause, Ms. Giuffre economic
damage, psychological pain and suffering, mental anguish and emotional distress, and other direct
and consequential damages and losses. These damages are in the province of the jury based upon
testimony. See Naylor v. Rotech Healthcare, Inc., 679 F. Supp. 2d at 510.
Finally, courts properly look to the verdicts in other, similar cases when determining the
appropriateness of damages awarded. See Cantu v. Flanigan, 705 F. Supp. 2d at 229-231
(examining past defamation damages awards as a basis for evaluating the award of damages in the
present case).
D. Ms. Giuffre Can Base Allege Lost Income on “The Jobs of Others” - i.e., On
Standard Economic Estimation techniques.
Defendant also argues that Ms. Giuffre “cannot base alleged lost income on the jobs of
others.” MTC at 6. Apparently, what Defendant means by this claim is that Ms. Giuffre cannot
rely on standard economic estimation techniques for calculating lost income. While this may be
an interesting issue for debate before the jury, it is (at most) a claim about the weight to be given
to the evidence that Ms. Giuffre intends to produce, not some kind of grounds for motion to
compel.
It is first important to understand exactly what Ms. Giuffre has produced that Defendant
claims is, somehow, inadequate. One of the kinds of damages that Ms. Giuffre seeks in his
lawsuit is lost income. Her Rule 26 disclosure of the basis for calculating these damages was
extensive and is worth setting out here for the benefit of the Court:
Estimated lost income of $180,000 annually. Present value of $3,461,000 to $5,407,000.
a. Computation Analysis
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i. Ms. Giuffre’s estimated compensation capacity is $180,000 annually. Ms. Giuffre
was born August 9, 1983 and was 31.4 years old at the beginning of 2015 when
the alleged injury occurred. Her expected remaining work life based on mortality
and probability of continued work was 20.2 years. Based on these factors, a 2%
annual growth rate and a 2.4% discount rate, the present value of lost
compensation is $3,461,000 as of 1/1/2015.
ii. Alternatively, if Ms. Giuffre is assumed to work until a normal retirement age of
65, or 33.6 years from her age at the beginning of 2015, and based on an annual
growth rate of 2.0% and a discount rate of 2.7%, the present value of lost
compensation is $5,407,000 as of 1/1/2015.
b. Supporting Evidence
i. Materials regarding compensation and work life expectancy
1) 2010 Life Table for Females, National Vital Statistics Report, November 6,
2014, U.S. Department of Health & Human Services, Centers for Disease
Control & Prevention, National Center for Health Statistics.
2) “Calculation of Work life Expectancy Using the Life, Participation,
Employment Method,” Vocational Econometrics, Inc.
3) Consumer Price Index for Urban Wage Earners and Clerical Workers,
United States Department of Labor, Bureau of Labor Statistics.
4) Federal Reserve Statistical Release H.15, 1/5/2015.
ii. Ms. Giuffre’s testimony
iii. Ms. Giuffre is in the process of retaining a damages expert and will provide
further information through expert disclosures.
See McCawley Decl. at Exhibit 2, Plaintiff’s Revised Rule 26 Disclosures, and Exhibit 3,
Addendum.
In response to this detailed recitation of not only a precise range of lost income (“present
value between $3,461,000 to $5,407,000”) but also the underlying calculations and associated
supporting evidence, Defendant complains that Ms. Giuffre’s calculation is “without factual or
evidentiary support.” MTC at 6. But this claim is simply false, given not only the government
publications cited but also the reference to Ms. Giuffre’s own forthcoming testimony – surely
appropriate “support” for a lost income claim. Defendant also complains that a necessary
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predicate for application of this kind of approach is some evidence of prior employment history.
That is not necessarily true, as a person embarking on a first career – or a new career – would not
need to rely upon such history. Here, Ms. Giuffre intends to prove to the jury that she was in the
process of beginning new employment – new employment that was disrupted by Defendant’s
devastating defamatory statements. In any event, the narrow issue before the Court is only
whether to compel Ms. Giuffre to provide more detail, at this juncture in the case, about her lost
income calculation. The Defendant, of course, has ample ways in which to obtain further
information, such as the anticipated deposition of Ms. Giuffre. And Ms. Giuffre will, of course,
be providing in due course an expert report on her damages calculations – a report that is not due
until July. Claims of inadequate disclosure are premature. Cf. Pine Ridge Recycling, Inc. v. Butts
Cty., Ga., 889 F. Supp. 1526, 1527 (M.D. Ga. 1995) (“At this point, disputing the amount of
damages actually claimed is analogous to arguing over the birth weight of a baby 3 months into
the pregnancy. Arguments over the method of computation are similarly premature since the
method will necessitate expert testimony, which is not due until later this year.”).
Rule 26 envisions that a party’s “initial damages disclosure under Rule 26(a) is merely a
preliminary assessment and is subject to revision.” City & Cty. of San Francisco v. Tutor-Saliba
Corp., 218 F.R.D. 219, 222 (N.D. Cal. 2003). Here, Ms. Giuffre’s initial disclosure of damages
fully satisfied – and, indeed, went beyond – the requirements of Rule 26.
E. Plaintiff Has Not Refused to Provide Addresses and Telephone Numbers
As addressed, supra, Ms. Giuffre has not refused to provide addresses of witnesses in her
Rule 26 initial disclosures. The Rule itself only requires that “known addresses” be disclosed. Ms.
Giuffre has disclosed the known addresses. Notably, many of the unknown addresses are for
witnesses that are known to Defendant and her joint defense partner Jeffrey Epstein, yet, they have
not provided even the names of these individuals in Defendant’s Rule 26 disclosures.
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Similarly, Defendant did not disclose all the addresses of her Rule 26 witnesses. Yet,
despite the undersigned’s repeated explanations that the “missing” addresses are “unknown,”
Defendant has wasted this Court’s time by presenting this issue. Ms. Giuffre could put the names
of the witnesses without addresses into an internet search engine to try to find an address
associated with the individual, but Ms. Giuffre would not be able to provide confirmation that the
address is correct or current. If Ms. Giuffre should “Google” the names of witnesses with
unknown addresses or phone numbers and provide those search results, and if one was incorrect,
Defendant would likely be before the Court saying that Ms. Giuffre had “lied” about an address. In
short, this is not a winning issue for Defendant as the Rule only requires the disclosure of known
addresses, and Ms. Giuffre provided all known addresses for the witnesses.
Regarding Ms. Giuffre’s own address, she is a child victim of sex trafficking. As a result of
personal safety concerns, Ms. Giuffre disclosed her attorney’s address and agreed to accept service
at that address. During the meet and confer, Defendant requested that Ms. Giuffre provide her
address confidentially. Plaintiff’s counsel reached out to Ms. Giuffre and is awaiting a response.
Ms. Giuffre is genuinely afraid that disclosure of her current address would put her, and her minor
children, in serious danger. Courts have found that fear of reprisals have justified the non-
disclosure of a client’s name. Matter of Kaplan, 8 N.Y.2d 214, 168 N.E.2d 660, 203 N.Y.S.2d
836, 838-39 (1960) (refusing to hold lawyer in contempt for failure to disclose name of client
because of client's justified fear of reprisals). At present, Defendants have not made a showing
whatsoever of the need for the disclosure of Ms. Giuffre’s address. Additionally, this argument is
premature, particularly if the undersigned is shown to be successful in her attempt to convince Ms.
Giuffre to disclose her address confidentially, pursuant to the Protective Order.
11
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F. Defendant Is Not Prejudiced And She Has Made No Showing of Prejudice.
Defendant is jumping the proverbial gun with this argument, and she has made no showing
whatsoever of prejudice. First, Defendant just served her discovery requests on February 12, 2016,
and already the production, consisting of thousands of pages, is nearly complete. Second, Ms.
Giuffre is neither withholding medical records related to her damages nor withholding medical
records related to her sexual abuse and defamation. Indeed, Ms. Giuffre is actively seeking
information from her medical providers and has made payment to obtain those records.
Additionally, Ms. Giuffre has disclosed the names and addresses of both physicians. See
McCawley Decl. at Exhibit 2, Plaintiff’s Revised Rule 26 Disclosures and Exhibit 3, Addendum.
Finally, Ms. Giuffre has already produced dozens of pages of medical records, many of which date
back to when Defendant was abusing her. Ms. Giuffre is not sitting on, withholding, or dawdling
when it comes to her relevant medical records and Defendant has not shown any prejudice.
Though unorthodox, Ms. Giuffre, as she promised the Court last Thursday, has already
given to Defendant a list of every document to be used at her deposition, as well as the documents
themselves. Her counsel will, no doubt, use all of that information in their preparation of the
witness. Ms. Giuffre disclosed her deposition “play book” for the very purpose of eliminating any
argument Defendant could make about prejudice in taking her deposition on Friday. Similarly,
Defendant has undertaken a huge burden in order to produce virtually all of non-privileged
documents responsive to the overwhelming majority of Defendant’s overly broad requests that
span decades. Accordingly, nothing stands in the way of Defendant’s deposition on Friday.
CONCLUSION
For the reasons set forth above, this Court should deny Defendant’s Motion to Compel.
12
Case 1:15-cv-07433-LAP Document 68 Filed 03/23/16 Page 16 of 17
Dated: March 23, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Ellen Brockman
Boies, Schiller & Flexner LLP
575 Lexington Ave
New York, New York 10022
(212) 446-2300
13
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 23, 2016, I electronically filed the foregoing
document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing
document is being served this day on the individuals identified below via transmission of Notices
of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey S. Pagliuca, , Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
Email: [email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
14
giuffre-maxwell
Unknown
36 pages
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McCAWLEY DECLARATION
EXHIBIT 18
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1
G3hdgium
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 VIRGINIA L. GIUFFRE,
4 Plaintiff, New York, N.Y.
5 v. 15 Civ. 7433(RWS)
6 GHISLAINE MAXWELL,
7 Defendant.
8 ------------------------------x
9 March 17, 2016
2:18 p.m.
10
Before:
11
HON. ROBERT W. SWEET,
12
District Judge
13
APPEARANCES
14
BOIES, SCHILLER & FLEXNER LLP
15 Attorneys for Plaintiff
BY: SIGRID S. McCAWLEY
16
HADDON MORGAN AND FOREMAN, P.C.
17 Attorneys for Defendant
BY: JEFFREY PAGLIUCA
18 LAURA A. MENNINGER
19
20
21
22
23
24
25
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1 THE COURT: Thank you all very much. I'm sorry for
2 the inconvenience that I have imposed upon you. I'm sorry
3 about the inconvenience that you have imposed upon me.
4 But having said all of that, this really is the first
5 time that we've had an opportunity, I think, to get together on
6 this case. And let me just say, I think -- I mean, I'm not
7 sure but I think I understand the difficulties of this case.
8 There is an emotional element, obviously, throughout the case
9 on both sides, and I understand that. Fortunately, we're
10 blessed by excellent counsel and it would be nice if they can
11 avoid adopting the emotional flavor of their clients, and I
12 presume that they will be able to do that, it certainly will
13 help, because these issues are going to be difficult and I'm
14 well aware of it.
15 Now, at the outset, there is some discussion in these
16 papers about meet and confer. Let me make clear what I would
17 like from this day forward. On any discovery issues, I would
18 like to have a meet and confer. Now, I understand that defense
19 counsel are living in God's country and they're not cursed with
20 the metropolitan residence. I salute their good judgment in
21 that. And so I will say that I will not require you to meet in
22 person, but I will require you to meet.
23 And I would say this. If you have a meet and confer,
24 I would like to have correspondence between the parties as to
25 what the subject is so that there is an agreed agenda that's
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1 written and we know that both sides know what it is, and that
2 will help me if, ultimately, the problem gets back to me. So I
3 would say exchange writing as to what it's going to be and have
4 a meeting. It doesn't have to be in person, but it certainly
5 has to be a significant meeting; it can't be just one
6 ten-minute telephone call.
7 So that's how I feel about the meet and confer.
8 Now, I'm not going to get into whether that's relevant
9 or not to the problems which we face today. That's just going
10 forward. As I say, I do hope that you all can -- it won't be
11 easy, but if you deal with these problems as the excellent
12 professionals that you are without the emotional implications,
13 having said that.
14 Now, how to go forward today? My thought is the
15 following. I have read your papers, and to say that I
16 understand the problems would be, I guess, a lie, but I'm
17 trying and you'll help me. I have a list of what I think our
18 issues are and I would like to go through this with you, and
19 then when I'm finished, if we have missed something, I'm sure
20 you will correct me. And I'd be pleased to hear if I determine
21 something, if you think that I'm wrong, that's fine, too. I
22 mean, you can tell me why you think I'm wrong.
23 Now, the first problem is the document -- the issue
24 about improper privilege claims. As I understand that issue,
25 it is the presence of Gow, Cohen and maybe somebody else as
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1 defeating the privilege, on the one hand. On the other hand,
2 the assertion by the defense that their participation as
3 whatever they are, managers, public relations people, whatever,
4 is necessary for the rendering of legal advice.
5 Parenthetically, there is a subtext there about whose
6 law applies. Let me say, I think we are going to apply New
7 York law in this case. British law may become relevant in some
8 way or other down the road, but for this privilege purpose, I
9 think that's where we are.
10 I think what I would like is I would like any
11 materials that -- the obligation to establish this privilege is
12 obviously Ms. Maxwell's, and I would like any materials that
13 she wants to present to me about these meetings to establish
14 that it was necessary for the rendering of legal advice, I'll
15 review those materials in camera and try to reach a decision.
16 I may need something further after I have looked at them, but I
17 think that's the way I ought to deal with that particular
18 privilege issue.
19 There is a list of documents as to which objections
20 have been made on a variety of bases. I will say probably a
21 catalog of every objection known to the mind of excellent
22 attorneys, and I think we will try to deal with those this
23 afternoon and maybe we'll fail, but let's put those aside just
24 for the moment.
25 The question about a protective order, of course there
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1 should be a protective order in this case. You are good
2 lawyers and you have been around this track more times than I
3 have and so you can prepare consensually a better protective
4 order than I can, and I urge you to do that. And, in fact, I
5 will give you two weeks to do that. Should you fail, you can
6 present whatever materials you wish to me and I will decide
7 what the protective order is going to be. That's not a good
8 idea because you know the case better than I do, obviously, and
9 so I urge you to resolve it by your litigation skills and not
10 leave it up to the ignorant district court judge who doesn't
11 really get into this kind of thing very often. So you run a
12 risk if you leave it to me.
13 Now, I would say two weeks, and then if you can't get
14 an agreement, maybe three weeks from now we wrestle with that.
15 Hopefully we won't. I have to do that.
16 The deposition -- the defendant of course will be
17 deposed, and we can work out right now when. Obviously, you
18 don't want that deposition until the protective order is
19 completed. So what do we do about that? Do you want to deal
20 with that today, the actual date of the deposition, or should
21 we pass that until we accomplish the protective order? What do
22 you all think about that?
23 MS. McCAWLEY: Can I be heard on that, your Honor?
24 This is Sigrid McCawley. I am counsel for Ms. Giuffre.
25 With respect to the deposition date, the 25th was the
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1 date that my opposing counsel proposed as possibly being
2 available. So we set it for that date, which is next Friday.
3 We also offered to hold that deposition transcript confidential
4 until such time as the protective order could be issued so that
5 there is no barrier to us being able to take this deposition.
6 THE COURT: How about that? Is that OK?
7 MR. PAGLIUCA: Frankly, it is not, your Honor, and the
8 reason is we, clearly from the papers submitted so far and the
9 exchange of counsel, we have a significant disagreement at this
10 point as to what the word "confidential" actually means, and we
11 have proposed to the plaintiff a protective order that we
12 believe is appropriate and neutral --
13 THE COURT: Well, maybe I can -- can we get over -- if
14 that's the primary issue on the protective order, can we deal
15 with that now?
16 MR. PAGLIUCA: I think there is a secondary -- well,
17 it may not even be secondary. There is another issue that is
18 directly related to that, your Honor, and that is the lack of
19 production of documents from the plaintiff. The Court has not
20 seen these papers yet, but there are in my view significant
21 deficiencies with the Rule 26 disclosures. There have been
22 failure to produce documents. And it is unfair at this point
23 to push these depositions forward without the required exchange
24 of discovery.
25 THE COURT: Let me ask the plaintiff. You really --
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1 MS. McCAWLEY: Could I be heard on that? Thank you,
2 your Honor. I'm sorry, I didn't mean to interrupt you.
3 THE COURT: What do you think?
4 MS. McCAWLEY: Right. The issue is so I issued my
5 deposition notice before they even served discovery requests.
6 THE COURT: OK. All right.
7 MS. McCAWLEY: I've done 3,000 pages. They've done
8 two emails.
9 THE COURT: Look, doesn't it make sense to resolve any
10 document discovery issues perhaps before the deposition?
11 MS. McCAWLEY: I don't think so, your Honor. I want
12 the testimony of this defendant in order to move this case
13 forward. Our discovery closes in July. I issued my discovery
14 requests in October. I have not gotten the deposition of the
15 defendant yet. This is a date she is available. She is not
16 leaving the country. She is not going anywhere. I have her in
17 town next Friday.
18 I'll even agree to their protective order if it means
19 I can get her deposition, your Honor. I just need to get this
20 case moving forward. I need one deposition, the deposition of
21 the defendant in this case, who has called my client a liar.
22 We are entitled to depose her and see if she is going to answer
23 the questions about why she was --
24 THE COURT: All right. OK.
25 MS. McCAWLEY: I am entitled to answers.
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1 THE COURT: Well --
2 MR. PAGLIUCA: Your Honor, I think this is a good
3 meeting and it is a meeting that should have happened a long
4 time ago. Let me say to the Court that we proposed to meet
5 with plaintiff's counsel early on in this case to put together
6 a discovery schedule that made sense. We proposed that orally
7 and in writing. That proposal was ignored and rebuffed. And
8 counsel for the plaintiff then unilaterally scheduled a bunch
9 of depositions without conferring on dates. Unilaterally,
10 here's the dates, here are the depositions. We then tried to
11 work through that issue, at the same time trying to work
12 through the protective order issue and the document issue, and
13 we get no response. And I think the agenda here is to gain a
14 tactical advantage by not responding to these requests.
15 THE COURT: Well, I can't believe that lawyers would
16 seek a tactical advantage. I can't believe such a thing.
17 MR. PAGLIUCA: I am shocked.
18 THE COURT: OK. Tell you what we're going to do.
19 We'll -- three weeks, let's see. Her deposition -- this
20 question about document production, that hasn't been teed up,
21 so I don't know --
22 MS. McCAWLEY: And can I be heard on that really
23 quickly? I mean, If that were the standard, that they could
24 wait to --
25 THE COURT: No. It hasn't been teed up, I agree.
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1 (Pause)
2 OK. Then I think what we should do is I'm assuming we
3 will resolve the protective order problem -- we've sort of slug
4 over the -- can we resolve what's confidential? Is that
5 possible? Could we do that this afternoon, or is that too
6 complicated?
7 MS. McCAWLEY: Your Honor, I can have the deposition
8 of the defendant in this case and move this case forward. I
9 will agree to their protective order. I just want that
10 deposition.
11 THE COURT: Yes.
12 MS. McCAWLEY: It is that important to me.
13 THE COURT: I get your point. I understand that. But
14 at the same time, I think, given the nature of all that lies in
15 this, I think it is fair to say no side would like to have this
16 aired, and so we've got to have a protective order that
17 everybody feels comfortable with.
18 MS. McCAWLEY: Your Honor, you can today enter the
19 protective order that they submit. I will disregard my
20 objections if I get the deposition.
21 THE COURT: Will you agree now to the protective
22 order?
23 MS. McCAWLEY: Yes. If it means I can get her
24 deposition, yes, I will do that.
25 THE COURT: Oh, OK. Good. Well, that solved that.
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1 MR. PAGLIUCA: It is not as simple as that, your
2 Honor, because this quid pro quo, I'll agree to their
3 protective order if I can have the deposition on the 25th,
4 doesn't solve the problem.
5 THE COURT: At least we've separated it. She has
6 agreed to the protective order. OK? So that's done. OK?
7 Now, why can't we have her deposition upon, whatever
8 it is, a week from Friday?
9 MS. McCAWLEY: Friday, the 25th, this coming Friday, a
10 week from tomorrow.
11 THE COURT: Oh, a week from tomorrow, yes.
12 MS. McCAWLEY: Yes.
13 MS. MENNINGER: Your Honor, we served discovery
14 requests on plaintiff on February 12th.
15 THE COURT: Well, look, that's nice. That's good.
16 But I don't have that, and I think she's right that there is no
17 rule that says you have to get your discovery requests
18 satisfied before the deposition, so --
19 MS. MENNINGER: Your Honor, the responses were due
20 last night yesterday, so that is prior to Ms. Maxwell for the
21 25th. However, as a part of producing that discovery response,
22 they have said they're going to take a month to roll out their
23 production, not just --
24 THE COURT: Look. I'll tell you what let's do. I
25 don't have that, but let's -- we'll hold the deposition date.
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1 When we get through with the rest of this stuff, we'll find out
2 if there is something in particular that you want prior to next
3 Friday and see what that is and see if we can get it. How is
4 that?
5 (Pause)
6 OK. Who pays for what and counsel, all of that?
7 Those are interesting problems and who knows how they all come
8 out. I think all of that is best served by reserving them
9 until the conclusion of the case, which is what I shall do.
10 The plaintiff wants to produce on a rolling basis and
11 to amend or add to the privilege log as the production goes
12 forward. I don't see any problem with that.
13 MS. MENNINGER: Your Honor, that's actually the issue
14 I was just alluding to. I understand -- and I have said I
15 don't have a problem with plaintiff producing her documents
16 over the course of the month because she has said that it is a
17 hardship for her to produce them all last night, which is when
18 they were due. However, she's trying to take our client's
19 deposition in the middle of her rolling production, in other
20 words, show up at the deposition with the documents she happens
21 to get --
22 THE COURT: That's what I'm saying. Maybe what we'll
23 do is to deal with the document production issue separately.
24 MS. MENNINGER: OK.
25 THE COURT: And if there are some documents that
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1 really seem to be important and they cannot be produced, then
2 maybe we'll put over the -- we'll see how that works.
3 MS. McCAWLEY: Your Honor, I may be able to short
4 circuit this.
5 THE COURT: Pardon me?
6 MS. McCAWLEY: I may be able to short circuit this a
7 little bit. We produced 3,000 pages last night. We are
8 continuing that production. We are moving as fast as we can.
9 We produced a privilege log with over 134 entries on it. We
10 are continuing to move that forward as quickly as we can.
11 With respect to her deposition, your Honor, I'm happy
12 to provide them in advance every document I will be using at
13 her deposition. In other words, if that is their issue, if it
14 means I can get her deposition next Friday, I will share with
15 them any document I intend to use at that deposition.
16 THE COURT: That seems to solve the problem, don't you
17 think?
18 MS. MENNINGER: Your Honor, I have to disagree. I got
19 this responsive objection last night at 9:30 p.m., while I was
20 here in New York. I've taken a look at it, and I can give your
21 Honor a sense of the types of objections that plaintiff has
22 lodged to our document request. For example, their client sold
23 her diary to Radar Online. It was published on Radar Online.
24 This diary contains plaintiff's allegations against my client.
25 So I asked for the diary that was sold to Radar Online.
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1 THE COURT: You get it.
2 MS. MENNINGER: It is copyright and proprietary
3 protected. We're not going to produce it. So that's the kind
4 of example --
5 THE COURT: No. You get it.
6 MS. McCAWLEY: She doesn't have a diary. She might be
7 referring to something else. I mean, my client doesn't have a
8 diary to produce. She doesn't have one. Those were
9 handwritten notes that she gave a reporter. She doesn't have
10 one.
11 THE COURT: So you are saying --
12 MS. McCAWLEY: That request is broader. I mean --
13 THE COURT: No.
14 MS. McCAWLEY: I didn't know we were going to be
15 addressing my requests today --
16 THE COURT: -- as to the diary, you say it doesn't
17 exist. There is no diary, there are no notes, and whatever
18 there is has been the subject of the printed material?
19 MS. McCAWLEY: Yes.
20 MS. MENNINGER: Excerpts -- excerpts, your Honor, with
21 my client's name on them in plaintiff's handwriting were sold
22 to Radar Online, not the entire document. And when I asked for
23 the entire document, I was told that it is proprietary and
24 copyright protected.
25 THE COURT: What is "proprietary"?
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1 MS. McCAWLEY: I think she's referring to a broader
2 request. My client doesn't have a diary, which is what she's
3 addressing right now. I don't have my requests in front of me,
4 your Honor. We were here on their requests. But if you want
5 to read the whole request, I can try and remember what --
6 THE COURT: What are we talking --
7 MS. McCAWLEY: Did they say I was withholding
8 documents? I don't think I said I was withholding documents on
9 that request. But, again, I don't have it in front of me and I
10 apologize.
11 MS. MENNINGER: The request number 16 reads: "Any
12 diary, journal, or calendar concerning your activity between
13 '96 and '02."
14 Response: Ms. Giuffre objects to this request to the
15 extent it seeks proprietary- and copyright-protected material.
16 Ms. Giuffre objects in that it seeks information protected by
17 the attorney-client privilege, the attorney work product
18 privilege, the joint defense, interest privilege, the agency
19 privilege, the investigative privilege, the spousal privilege,
20 the accountant/client privilege, and any other applicable
21 privilege."
22 THE COURT: Hot dog. I tell you, that's great.
23 MS. McCAWLEY: But did I say I didn't have --
24 THE COURT: Shall we use that as the standard
25 objection to every document request and then let's forget about
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1 it? OK, let's do this.
2 MS. McCAWLEY: Your Honor, may I be heard on just one
3 point on this issue?
4 If the standard were that someone could wait in a case
5 to request documents and then push off depositions by
6 continuing to file new requests, it's apparently --
7 THE COURT: Yes. I hear you. I understand that
8 point. Look, obviously if there are documents that are covered
9 by the privilege, they have to be identified and logged. So
10 that's the privilege.
11 I don't know, what is this proprietary thing? What is
12 that all about?
13 MS. McCAWLEY: To the extent she has commercially
14 valuable material that she has written, that's covered by --
15 it's covered by the protective order basically, that it would
16 be produced in a confidential format with a copyright-protected
17 format. So it is a general objection --
18 THE COURT: So she will produce that, she will produce
19 everything --
20 MS. McCAWLEY: If she has something like that, yes.
21 Like I said, we produced 3,000 pages yesterday.
22 THE COURT: And calendars and all of the rest of them?
23 MS. McCAWLEY: To the extent she has any of that, we
24 will produce it, your Honor.
25 THE COURT: All right. In other words, you are going
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1 to produce everything except anything that you have that you
2 claim privilege as to which you will log?
3 MS. McCAWLEY: Yes. We have been logging --
4 THE COURT: Well --
5 MS. MENNINGER: Your Honor, on this particular one,
6 she says her client does not have any nonprivileged documents
7 created during the time period responsive to this request, and
8 then there are no privileged documents related to this log on
9 the privilege log. So I don't have any way to read this
10 request in a privilege log and figure out whether there are
11 noncopyright materials that weren't withheld or there are
12 privileged because all of these privileges were raised --
13 THE COURT: I take it that what's being said is that
14 she has no privileged documents that would be covered by that
15 request?
16 MS. MENNINGER: That's not what the objection says.
17 And, your Honor, since she sold her handwritten notes about my
18 client to Radar Online, I know they exist because they were
19 excerpted on the Internet.
20 THE COURT: Yes, but she said she doesn't have them.
21 She said -- I mean, correct me if I am wrong.
22 MS. McCAWLEY: No, she doesn't have them. But, your
23 Honor, I am happy to have -- first of all, she hasn't conferred
24 on these issues that we are talking about here today. I am
25 happy to address them fully. I feel very comfortable with our
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1 discovery production in this case. We will continue to roll it
2 out; we have done it timely. Unlike like the defendants, who I
3 served their discovery requests October 27th, your Honor. We
4 are now in March. I received two emails, two emails in
5 response. I produced 3,000 pages --
6 MS. MENNINGER: Your Honor, she is --
7 (Unintelligible crosstalk)
8 THE COURT: Ladies, we're not going to get anywhere if
9 we "who struck John."
10 MS. McCAWLEY: I understand, your Honor.
11 I think I proposed something very fair by saying that
12 I would share with her any document I intend to use at that
13 deposition. I just need the deposition.
14 THE COURT: I understand. I got you. OK.
15 Now, you will identify any document -- I mean, you
16 tell them -- give them any documents that you are going to use
17 in the deposition.
18 MS. McCAWLEY: Yes.
19 THE COURT: OK. Now, is there -- the business of this
20 production on -- you are going to have to -- well, wait a
21 minute. Let me put it this way. The objections to this 16 are
22 overruled except for the privilege. OK?
23 MS. MENNINGER: Your Honor, I've proposed dates for my
24 client to be available in two or three weeks, once we have
25 received a complete document production, which was due last
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1 night, and I have been told we're not going to talk about dates
2 in two or three weeks. We haven't asked to set them out into
3 May or June. We've just asked for the documents that were due
4 last night to be produced to us before our client's deposition.
5 This isn't some kind of game. It's just she's been litigating
6 this case for seven years --
7 THE COURT: OK. Well, we've dealt with the first
8 objection. Now, is there another one?
9 MS. McCAWLEY: Right. So we're here on my motion to
10 compel production of documents. I am just getting a little
11 confused because I don't -- we are here -- my motion to compel
12 production of documents from her based on my request that --
13 THE COURT: Let's not worry about the --
14 MS. McCAWLEY: OK. I just wanted to be clear. I
15 don't have in front of me the request that she is referring to.
16 THE COURT: OK. Anything else that you think you need
17 besides the documents she is going to use, the response to 16?
18 Anything else --
19 MS. MENNINGER: Your Honor --
20 THE COURT: -- that is critical for the deposition?
21 MS. MENNINGER: Your Honor, these were filed last
22 night at 9:30 p.m., the 3,000 pages were produced to my office,
23 which is in Colorado. I haven't looked at the 3,000 pages that
24 were produced last night. I will have to ask leave of the
25 Court to go back, look at the documents that were produced and
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1 see what I am missing.
2 THE COURT: All right. If you want to, you can come
3 back on Thursday next week and we can argue about whether or
4 not the deposition should go forward on Friday.
5 MS. MENNINGER: OK.
6 THE COURT: That is all right with me.
7 MS. MENNINGER: That is acceptable, your Honor.
8 THE COURT: OK. So maybe we've solved that problem.
9 OK. Maybe.
10 Now, on the improper objections by the defendants. I
11 suppose I can assume that the defendants' objections are just
12 exactly the same as the plaintiff's objections.
13 MR. PAGLIUCA: No, your Honor. They are not.
14 MS. McCAWLEY: Oh, I'm sorry. This is my motion to
15 compel. Can I just address it initially so that I can lay out
16 for the Court what the issues are that we are raising on the
17 motion to compel?
18 THE COURT: I'm sorry.
19 MS. McCAWLEY: This is my motion to compel now. Can I
20 address -- am I able to address that?
21 THE COURT: Yes.
22 MS. McCAWLEY: So with respect to our motion to compel
23 the documents from the defendant, as you know, your Honor,
24 there are two main objections that I think have to be overcome
25 in order for us to get that production properly. The first
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1 main objection is the fact that they are objecting to the time
2 period. So we have sought requests from 1999, which is in
3 around the time when my client contends she was involved with
4 these individuals, to the present. They objected that that
5 time period is overly broad. They only agreed to produce for
6 the period of 1999 to 2002 and for one month, from December 31,
7 2014 to January 31, 2015. So they cut out all the years in
8 between and anything post January 31, 2015.
9 Now, with respect to your Honor maybe saying why would
10 that time period be relevant, the entire time period is
11 relevant for a number of reasons. First, in 1999, that's when
12 my client first recalls being --
13 THE COURT: We can agree -- I think we can agree at
14 the outset that '99 to what is it?
15 MS. McCAWLEY: 2002.
16 THE COURT: 2002 is relevant.
17 MS. McCAWLEY: Right.
18 THE COURT: So what we're talking about is the -- what
19 happened in 2002?
20 MS. McCAWLEY: My client was sent to Thailand by
21 Mr. Epstein and Ms. Maxwell for a training and to pick up
22 another --
23 THE COURT: So she is no longer --
24 MS. McCAWLEY: And she left. She fled to Australia.
25 THE COURT: OK.
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1 MS. McCAWLEY: So with respect to these requests, I
2 just want to -- you know, because the Court has mentioned this
3 and it is worthy of referencing, that if you look at the
4 defendants' request to us, they actually request a longer time
5 period; they request from 1996 to the present. So while they
6 don't want us to -- they don't want to produce to us except for
7 that short window, they are requesting the entire period. In
8 some cases they request -- and I did a chart. Your Honor,
9 would you mind if I just pass this up to you for reference?
10 THE COURT: OK.
11 MS. McCAWLEY: I did a chart, I believe it is on page
12 10, and it has for you the various requests and what the time
13 periods are, and for many of the requests there is no time
14 period at all.
15 MR. PAGLIUCA: I have it. I don't need it.
16 MS. McCAWLEY: Oh, you have that?
17 MR. PAGLIUCA: I do not need it.
18 MS. McCAWLEY: OK. I'm sorry.
19 So that time period shows that many of those requests
20 don't have a time period at all; so it is even broader, from
21 infancy to present. So, in fairness, our requests are 1999 to
22 the present, which we believe is the critical time period.
23 Now, what happens in 2002? So my client does flee to
24 Australia away from these individuals, but the conduct
25 continues. So we have, for example, the law enforcement trash
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1 pulls that show the message pads of the back and forth of
2 arranging these underaged minors to come for massages, things
3 of that nature. We have the flight logs that show Ms. Maxwell
4 flying 360 times with Jeffrey Epstein, 20 of which were with my
5 client when she was underage. We have the Palm Beach police
6 report, which shows over 30 minors who reported during that
7 time period, to up until now 2006, being abused in that
8 circumstance in Palm Beach. Then we have the arrest that
9 happens of Jeffrey Epstein in 2006.
10 Thereafter, my client in 2008 is -- I'm sorry, she
11 receives from the U.S. government a victim notification letter.
12 At that point, in 2009, Ms. Maxwell's deposition is sought in
13 underlying civil cases. She flees from that deposition, says
14 her mother is ill in England, she has to leave the country,
15 cannot be deposed. She then shows up three weeks later at
16 Chelsea Clinton's wedding. So clearly she was around, she was
17 able to do something, but she avoided that deposition. Her
18 testimony was never taken in that case.
19 So that's in 2009. Then we have in 2011 my client is
20 interviewed by the FBI about the issues that have happened.
21 Then we have in 2011 Ms. Maxwell starts issuing different
22 statements to the press. She continues that, issues a
23 statement in 2015, which is the statement that we are here
24 about in this case.
25 So I contend, your Honor, that all of those years have
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23
G3hdgium
1 relevant information in them with respect to my client.
2 THE COURT: OK. I understand.
3 Let's hear from the defendant.
4 MR. PAGLIUCA: So, your Honor, I have tried to refrain
5 from responding in kind, but the problem here is all of this --
6 the agenda behind all of this is not really the issue in this
7 case but it is to make inflammatory statements like counsel
8 just made as fact when they are speculation, at best, your
9 Honor, and to pack into the record things that are demonstrably
10 not true but counsel says them like they are true and then
11 refers to her own declaration to support the fact of what she
12 is saying may or may not be true. So let's get to the issue
13 here in terms of the relevant timeframe.
14 First, the plaintiff goes to Thailand on her own
15 volition, gets married, and moves to Australia, where she
16 resides for some 12/13 years after, and has no contact with
17 Ms. Maxwell or Mr. Epstein. So everything that happens from
18 2002 forward has absolutely nothing to do with the plaintiff in
19 this case, and she has absolutely no personal knowledge about
20 what did or didn't happen in Florida or elsewhere from that
21 timeframe forward.
22 You know, I carefully, your Honor, read your ruling on
23 the motion to dismiss, and I believe that you characterized the
24 issue in this case very narrowly, and that is is what the
25 plaintiff said about Ms. Maxwell, and from 1999 to 2002, true
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G3hdgium
1 or not. Those two individuals have the facts that relate to
2 that, and anything outside of that, quite frankly, is opinion
3 and not a subject matter of this litigation.
4 Now, you have to focus not only on this expansive
5 timeframe in which the plaintiff is not even in this
6 hemisphere, which is combined with the overbroad requests that
7 don't ask for things that might be arguably relevant under a
8 404(b) analysis -- you know, for example, did this happen with
9 Ms. Maxwell and someone else in 2005, let's say -- those aren't
10 what the requests are. The requests are for all communications
11 for 17 years with plug in the individual, all documents
12 relating to whatever you want to plug in there for 17 years.
13 And so those two things combined create a grossly overbroad and
14 unmanageable document request. Hence, the objections.
15 Now, had we had the ability to confer about this, we
16 may have been able to get down to, here, these are really the
17 relevant timeframes, or you need to modify your requests for
18 production to say things like any communication with Jeffrey
19 Epstein related to the plaintiff, any communication with this
20 person related to the plaintiff. But that's not what the
21 requests are. And so what you are left with is an unmanageable
22 pile of requests for production of documents.
23 I will note, your Honor, so the Court has this in
24 context, there are 39 requests that have been proposed to
25 Ms. Maxwell. She has no responsive documents, and I've so
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G3hdgium
1 indicated to 17 of those requests. So we then winnow this down
2 to the ones that we are objecting to for very good reason. The
3 timeframe we have proposed is the appropriate timeframe. If
4 there are narrowly tailored requests for production for
5 something that may be relevant outside that timeframe, then
6 they should propose that and not what they are proposing
7 currently, which makes the entire process unwieldy and
8 unreliable.
9 MS. McCAWLEY: Your Honor, the underlying issue in
10 this case is whether or not Ms. Maxwell lied when she said my
11 client was not subject to the abuse that she said she was
12 subject to. So in order to prove that, for defamation with
13 malice, we have to prove that my client was abused by these
14 individuals, that these individuals did take advantage of her
15 in the way that she expressed.
16 What's relevant to that is the sexual trafficking
17 ring. If after my client left they are also trafficking other
18 underaged girls repetitively, that is relevant to prove the
19 truth of my client's allegations as well. We are entitled to
20 that in discovery, your Honor. One of the requests is the
21 documents relating to communications of Jeffrey Epstein. If
22 she is e-mailing Jeffrey Epstein about the girls she's going to
23 send over to him in 2004, before he is arrested, that's
24 relevant to my client's claim, your Honor. So we shouldn't be
25 told that we're not entitled to these documents or that we're
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1 only entitled to two emails out of all of our requests.
2 In addition, he says that there are 17 requests that
3 they have no documents for, your Honor, but, again, they have
4 restricted the time period to this very short window and then
5 they answered in their responses. OK. So --
6 MR. PAGLIUCA: That is not true. If you read --
7 actually read the response, there is no restriction because we
8 have looked and there are no documents. We're actually trying
9 to move this ball forward, your Honor, and what's happening
10 here is we keep getting sucked back into this morass of maybe
11 something happened. If you listen to the words that counsel is
12 saying, your Honor, it is very illustrative of the fishing
13 expedition. If there is this, then it is relevant. But that
14 is not what they are asking for. And you have to go back to
15 the request. "All documents" -- Request No. 1: "All documents
16 relating to communications with Jeffrey Epstein from 1990 to
17 present." Well, that's not all documents concerning
18 trafficking or underaged girls, that's all documents relating
19 to, which could be anything in the universe.
20 Those are the reasons why I objected.
21 Request No. 3: "All documents relating to
22 communications with Andrew Albert Christian Edward, Duke of
23 York, from 1990 to present." You know, what the heck does a
24 communication with the Duke in 2013, any old communication,
25 have to do with anything in this case? Nothing. If you
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1 said -- if you give me a request for production of documents
2 that said give me any documents that talk about your press
3 release with the Duke, well, that might be relevant and
4 discoverable, but these are grossly overbroad.
5 If they had conferred with us, we would have been able
6 to narrow this down, but they haven't because there is an
7 agenda here that, quite frankly, I don't understand, your
8 Honor. But what I think it is is to simply pack the record,
9 the written record and the oral record, with these very
10 specious, quite frankly, disgusting allegations about my
11 client, and that's not what we're here for. If they want
12 something, they should ask for it specifically. If they just
13 want to, you know, kind of throw things around -- if this, then
14 that -- then that's what we're about here.
15 MS. McCAWLEY: Your Honor --
16 THE COURT: All right. I think I understand this
17 issue.
18 What else do we have? We have the timeframe and the
19 specificity.
20 MS. McCAWLEY: Right. So, your Honor, there is the
21 timeframe for the request, and then, right, I assume that they
22 are alleging that these are overbroad in some way as --
23 THE COURT: I would rather think I jus
giuffre-maxwell
Unknown
17 pages
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 1 of 17
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S MOTION TO ENFORCE THE COURT’S ORDER AND DIRECT
DEFENDANT TO ANSWER DEPOSITION QUESTIONS FILED UNDER SEAL1
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Motion to Compel Defendant to Answer Deposition Questions. On June 20, 2016, this Court
Ordered Defendant to sit for a second deposition because her refusal to answer questions posed
-
in her first Deposition (June 20, 2016 Sealed Order, filed in redacted version at D.E. 264-1). Yet,
during her second deposition, Defendant again refused to answer numerous questions regarding
sexual activity related to Jeffrey Epstein in contravention of this Court’s Order. Accordingly, the
Court should direct her to fully answer the relevant questions.
FACTUAL BACKGROUND
As the Court is aware, this defamation case involves Ms. Giuffre’s assertions that she and
other females were recruited by Defendant to be sexually abused by Jeffrey Epstein under the
guise of being “massage therapists.” See Complaint, DE1, at ¶ 27 (Giuffre “described Maxwell’s
role as one of the main women who Epstein used to procure under-aged girls for sexual activities
1
Defendant has labelled her entire deposition transcript as Confidential at this time.
1
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 2 of 17
and a primary co-conspirator and participant in his sexual abuse and sex trafficking scheme”).
Numerous other witnesses, with knowledge of Defendant’s activities, have testified to the same:
x See Schultz Declaration (“Schultz Decl.”) at Composite Exhibit 1, Excerpts from May
18, 2016, Deposition of Johanna Sjoberg at p. 34:20-35:1. “Q. And did you -- what did
you understand her to mean? A. [Maxwell] was implying that I did not get Jeffrey off,
and so she had to do it. Q. And when you say "get Jeffrey off," do you mean bring him
to orgasm? A. Yes.” . . . “How long did you work for Jeffrey and Ghislaine? A: I
believe it was five years, 2001 to 2006. Q. And how many massages did Epstein receive
per day on average? THE WITNESS: Three.” Id. at pg. 30:15-25. . . “Q. Did Jeffrey
ever tell you why he received so many massages from so many different girls? A. He
explained to me that, in his opinion, he needed to have three orgasms a day. It was
biological, like eating.” Id. at p.32: 9-16.
x See Schultz Decl. at Composite Exhibit 2, Excerpts from June 24, 2016, Deposition of
Tony Figueroa at pg. 200:5-18; 96:8-15. “Q. …when Ghislaine Maxwell would call you
during the time you were living with Virginia, she would ask you what specifically? A.
Just if I had found any other girls just to bring to Jeffrey. Q. Okay. A. Pretty much every
time there was a conversation with any of them it was either asking Virginia where she
was at, or asking me to get girls.” “Q What has -- what is that? A. That her [Virginia] and
Maxwell and Jeffrey would obviously be doing stuff, all three of them together. Like I
said that they would all go out to clubs to pick up girls and try to find them to bring back
for Jeffrey. And then she told me about how, like I said, her and Ms. Maxwell and Jeffrey
were all intimate together on multiple occasions.”
x See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016, Deposition of
Detective Recarey at pg. 29:11-20. “Q. “Okay. During your investigation, what did you
learn in terms of Ghislaine Maxwell's involvement, if any? THE WITNESS: Ms.
Maxwell, during her research, was found to be Epstein's long-time friend. During the
interviews, Ms. Maxwell was involved in seeking girls to perform massages and work at
Epstein's home.”
x See Schultz Decl. at Composite Exhibit 4, Excerpts from June 10, 2016, Deposition of
Rinaldo Rizzo at pg. 52:8. “A. What happens next when Ghislaine Maxwell and Jeffrey
Epstein and a 15-year-old girl walk into Eva Anderson's home? . . . “A. She proceeds to
tell my wife and I that, and this is not -- this is blurting out, not a conversation like I'm
having a casual conversation. That quickly, I was on an island, I was on the island and
there was Ghislaine, there was Sarah, she said they asked me for sex, I said no. And she
is just rambling, and I'm like what, and she said -- I asked her, I said what? And she says
yes, I was on the island, I don't know how I got from the island to here. Last afternoon or
in the afternoon I was on the island and now I'm here. And I said do you have a -- this is
not making any sense to me, and I said this is nuts, do you have a passport, do you have a
phone? And she says no, and she says Ghislaine took my passport. And I said what, and
she says Sarah took her passport and her phone and gave it to Ghislaine Maxwell, and at
that point she said that she was threatened.” Id. at pg. 56:2-24
2
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x See Schultz Decl. at Composite Exhibit 5, Excerpts from June 1, 2016, Deposition of
John Alessi at pg. 28:6-15. “Q. And over the course of that 10-year period of time while
Ms. Maxwell was at the house, do you have an approximation as to the number of
different females -- females that you were told were massage therapists that came to the
house? THE WITNESS: I cannot give you a number, but I would say probably over 100
in my stay there." Id. at pg. 30:15-25 “Q: Did you go out looking for the girls -- A. No.
Q. -- to bring -- A. Never. Q. -- as the massage therapists? A. Never. Q. Who did?
A. Ms. Maxwell, Mr. Epstein and their friends, because their friends relayed to other
friends they knew a massage therapist and they would send to the house. So it was
referrals.”
In response to Ms. Giuffre’s assertions about Defendant recruiting of females for sexual
purposes, Defendant has made the sweeping claim that Ms. Giuffre’s assertions are “entirely
false” and “entirely untrue.” Complaint, DE 1, at ¶ 31. Accordingly, this Court directed as
-
follows:
Defendant is ordered to answer questions relating to Defendant’s own sexual activity (a)
with or involving Jeffrey Epstein (“Epstein”), (b) with or involving Plaintiff, (c) with or
involving underage females known to Epstein or who Defendant believed or intended
might become known to Epstein, or (d) involving or including massage with individuals
Defendant knew to be, or believed might become, known to Epstein. Defendant is also
directed to answer questions relating to her knowledge of sexual activities of others (a)
with or involving Epstein, (b) with or involving Plaintiff, (c) with or involving underage
females known to Epstein or who Defendant believed were known or might become
known to Epstein, or (d) involving or including massage with individuals Defendant
knew to be or believed might become known to Epstein. (FN. Each of the
aforementioned lists are disjunctive.) The scope of Defendant’s answers are not bound by
time period, though Defendant need not answer questions that relate to none of these
subjects or that is clearly not relevant, such as sexual activity of third-parties who bear no
knowledge or relation to the key events, individuals, or locations of this case.
See Schultz Decl. at Exhibit 6, Sealed June 20, 2016, Order at p. 10 (Emphasis added).
Despite this instruction from the Court, during her deposition, Defendant refused to
answer many questions related to “sexual activity with or involving Jeffrey Epstein, with or
involving Plaintiff . . . or involving or including massage with individuals Defendant knew to be
or believed were known to might become known to Epstein.” The result was that at a number of
3
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points throughout her deposition, Defendant refused to answer questions about subjects integral
to this lawsuit, including questions about a student, Joanna Sjoberg, who Defendant recruited
from her school to give massages to, and have sex with, Jeffrey Epstein under the guise of hiring
her to answer phones.
For example, Defendant refused to answer questions about recruiting Ms. Sjoberg for sex
with Epstein:
Q. So is it fair to say that Johanna was initially hired to answer
telephones, according to your testimony?
MR. PAGLIUCA: This has already been testified to Mr. Boies. We are repeating
testimony now.
MR. BOIES: I think in the context of the witness’ answers, these are fair
questions. Now, I’ve asked you before, if you want to instruct her not to answer,
if you want to go to the judge, we are happy to do that, but I would suggest in the
interest of moving it along, that you stop these speeches.
MR. PAGLIUCA: You are not moving it along is the problem, so maybe we
should call the court and get some direction here, because I am not going to sit
here and rehash the testimony we already gave.
MR. BOIES: That’s fin[e]. [At this point a telephone call was placed to Judge
Sweet’s chambers].
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg.78:17-79:14.
MR. BOIES: So how did it happen, Ms. Maxwell, that Joanna, who had been hired to
answer the phones, ended up giving massages to you and Mr. Epstein.
MR. PAGLIUCA: I’m going to instruct you not to answer the question. This has been
previously , the subject of your former deposition, it doesn’t fall into any of the
categories ordered by the court, and so you don’t need to answer that.
Id. at pg.81:15-25.
Defendant’s counsel’s instruction not to answer was improper. This Court’s Order stated:
“Defendant is also directed to answer questions relating to her knowledge of sexual activities of
others . . . involving or including massage with individuals Defendant knew to be or believed
4
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might become known to Epstein.” Ms. Sjoberg is an important witness in this case – one of the
witnesses Ms. Giuffre has deposed. She is an individual Defendant knew to be known to
Epstein, who knew and interacted with Ms. Giuffre when Ms. Giuffre was underage, and who
participated in massage and sexual activities with Epstein. Defendant knew that Ms. Sjoberg was
known to Epstein as Defendant recruited her to massage Epstein and participate in sexual
activities during those massages. And Ms. Sjoberg testified directly about Defendant’s
involvement, including Defendant’s offer or an expensive camera in exchange for sex:
Q. Was there anything you were supposed to do in order to get the camera?
A: I did not know that there were expectations of me to get the camera until after. She
[Maxwell] had purchased the camera for me, and I was over there giving Jeffrey a
massage. I did not know that she was in possession of the camera until later. She told me
-- called me after I had left and said, I have the camera for you, but you cannot receive it
yet because you came here and didn't finish your job and I had to finish it for you.
Q. And did you -- what did you understand her to mean?
A. She was implying that I did not get Jeffrey off, and so she had to do it.
Q. And when you say "get Jeffrey off," do you mean bring him to orgasm?
-
A. Yes.
See Schultz Declaration at Composite Exhibit 1, Excerpts from May 18, 2016 Deposition of
Johanna Sjoberg at p. (P. 34:5-35:1).
Q: …. What did you understand Maxwell to mean when she said you hadn't finished the
job, with respect to the camera?
A: She implied that I had not brought him to orgasm.
Q. So is it fair to say that Maxwell expected you to perform sexual acts when you
were massaging Jeffrey?
A: Yes, I took that conversation to mean that is what was expected of me.”
Id. at p. 142:25-143:14 (Emphasis added).
5
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In the wake of this specific deposition testimony from Ms. Sjoberg, during her own
recent deposition, Defendant continued to refuse to testify about Ms. Sjoberg’s massages and
sexual activity with Epstein:
Q. Did Mr. Epstein pay Johanna for the massages that she gave Mr. Epstein?
Mr. Pagliuca: You just asked this question, and I told her not to answer. I will tell her not
to answer again for the same reasons.
Q. Do you know how much Mr. Epstein paid Johanna to give massages?
Mr. Pagliuca: Same instruction to the witness. Why do you believe this is within the
scope of the court’s order?
Mr. Boies: Because of the court’s reference to massages, and because I think how much a
girl who was hired to answer the phone was paid to give a “massage” goes to whether
there actually was or was not sexual activity involved.
Mr. Pagiluca: The witness has testified there wasn’t.
Mr. Boies: Perhaps it will surprise you, I think it should not, that I do not believe in my
deposition I need to simply accept her characterization without cross-examination. Now
that’s something the judge can decide, but a question as to how much this young girl was
being paid for a “massage,” I think goes directly to the issue of sexual activity.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 82:25-84:6.
Additionally, Defendant refused to answer questions concerning the sexual abuse
involving herself, Mr. Epstein, and Annie and Maria Farmer, described in a Vanity Fair article:
“What do you have on the girls?” [Epstein] would ask the question over and over again.
What I had “on the girls” were some remarkably brave first-person accounts. Three on-
the-record stories from a family: a mother and her daughters [Maria Farmer, Annie
Farmer, and their mother] who came from Phoenix. The oldest daughter, an artist whose
character was vouchsafed to me by several sources, including the artist Eric Fischl, had
told me, weeping as she sat in my living room, of how Epstein had attempted to seduce
both her and, separately, her younger sister, then only 16. He’d gotten to them because of
his money. He promised the older sister patronage of her art work; he’d promised the
younger funding for a trip abroad that would give her the work experience she needed on
her resume for a place at an Ivy League university, which she desperately wanted - and
would win. The girls’ mother told me by phone that she had thought her daughters would
6
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 7 of 17
be safe under Epstein’s roof, not least because he phoned her to reassure her, and she
also knew he had Ghislaine Maxwell with him at all times. When the girls’ mother
learned that Epstein had, regardless, allegedly molested her 16-year-old daughter, she’d
wanted to fight back.
“I Tried to Warn You about Sleazy Billionaire Jeffrey Epstein in 2003,” Vicky Ward, January 6,
2015, Daily Beast Article (Emphasis added). Defendant would not answer many questions
concerning her role with in the molestation of these girls while she was sharing a house with
Maria Farmer and Jeffrey Epstein:
Q. Do you know whether or not Maria Farmer was ever at Mr. Wexner’s property in
Ohio?
Mr. PAGLIUCA: Can you tell me how that relates to this order, counselor?
MR. BOIES: Yes, I think it goes directly to the sexual activity related to Maria Farmer
and what Mr. Epstein was doing with Maria Farmer. Again, you can instruct not to
answer.
MR. PAGLIUCA: I’m trying to understand why you are asking these questions before I -
MR. BOIES: I’m asking these questions because these are people who not only have
been publicly written about in terms of the sexual activity that they were put into in
connection with Mr. Epstein, but the person who wrote about them is someone who
talked to the witness about it, and I think that this is more than easily understood cross-
examination.
MR. PAGLIUCA: Your question was, do you know whether or not Maria Farmer was
ever at Mr. Wexner’s property in Ohio.
MR. BOIES: Yes. And if you let her answer, you will see where it leads. If you won’t let
her answer, the judge is going to determine it. And I just suggest to you that you stop
these speeches and stop debating, because you are not going to convince me not to
follow-up on these questions. If you can convince the court to truncate the deposition,
that’s your right, but all you’re doing is dragging this deposition out.
MR. PAGLIUCA: You have the opportunity to give me a good faith basis why you are
asking these questions.
MR. BOIES: I have given you a good faith basis.
MR. PAGLIUCA: You haven’t.
7
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 8 of 17
MR. BOIES: Then instruct not to answer.
MR. PAGLIUCA: I am giving you the opportunity to say why you are asking the
questions, and why I’m telling her not to answer and I am entitled to know that.
MR. BOIES: You are not entitled to know why I’m asking the question. You are only
entitled to know that it relates to the subject matter that I am entitled to inquire about, and
I don’t think the judge is going to think that, you know, where Mr. Epstein shipped Maria
Farmer off to is outside the scope of what I’m entitled to inquire about.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 99:6-101:20.
Defendant’s counsel also stopped a line of questioning in which Defendant was asked if
she recalled several girls Tony Figueroa brought over to give a “massage” to Epstein. The Court
will recall that Mr. Figueroa previously testified in this case that he brought underage girls to
Epstein at Defendant’s behest, and that Defendant called him, asking him to bring the girls.2
Accordingly, at Defendant’s recent deposition, Ms. Giuffre’s counsel attempted to follow up on
-
this subject:
Q. Have you ever heard the name of Carolyn Andriamo, A-N-D-R-I-A-M-O?
A. I don't recollect that name at all.
2
Tony Figueroa testified that Defendant called him and asked him to bring girls over, and that
there were no “legitimate” massages: “Q. Any of the girls that you are aware of having gone to
the house - either because you brought them or Virginia - as you sit here today, do you believe
any of them were brought over to be legitimate masseuse? A. Nope.” See Schultz Decl. at
Composite Exhibit 2, Excerpts from June 24, 2016, Deposition of Tony Figueroa at pg. 245:1-8.
“Q. And how long would you and one of these girls sit there and have this small talk with Ms.
Maxwell? A. No more than 10 or 15 minutes. Q. All right and what were you waiting for? A.
Pretty much her to take them upstairs. And then I would leave. Like I would have to wait for
them to be like, ‘All right. Well we’re ready.’ And I would be like ‘All right. See you later.’ And
then I’d leave. And they would go do whatever.” Id. at pg. 193:14-25. “Q. During this 2001
period, if you were driving Virginia and other girl to the house, what type of girls would you be
driving? A. Pretty much like young looking teenagers 16, 17. Really pretty. You know.” Id. at
pg. 182:4-10.
8
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 9 of 17
MR. PAGLIUCA: Mr. Boies, those names are on Exhibit 26, which we have already
gone over and she said she didn't recognize those people, so now we are just repeating
things that we went over.
MR. BOIES: I am in the context of seeing if I can refresh her recollection, because these
are women that who she also does not recall, brought over to Mr. Epstein's
residences, and I also want to make a very clear record of what her testimony is and is not
right now.
Again, you can instruct her not to answer if you wish.
MR. PAGLIUCA: I'm trying to get to nonrepetitive questions here. You basically asked
the same question three times. Then we get a pile of notes that get pushed up to you, you
read those. Then you ask those three times, and then we go to another question. So it's
taking an inordinately long amount of time and it shouldn't.
MR. BOIES: I think that is a demonstrably inaccurate statement of what has been going
on, and I attribute -- maybe I shouldn't attribute it at all. But if you want to instruct not to
answer, instruct not to answer. If you don't, again, all I will do is request that you cease
your comments. I can't do that. All I can do is seek sanctions afterwards.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg. 154:20-156:10.
Based on Defendant’s refusal to answer questions related to specific girls, Mr. Boies was
forced to discontinue asking questions about these victims.
Defendant also refused to answer questions concerning the “sexual activities of others . . .
involving or including massage with individuals Defendant knew to be or believed might
become known to Epstein,” when she refused to answer a question about the records she kept of
the young girls who would perform massage and sexual activities with Epstein:
Q. Was there a list that was kept of women or girls who provided massages?
MR. PAGLIUCA: This has been previously deposed on. This is not part of the court's
order, I will tell her not to answer.
MR. BOIES: You are going to tell her not to answer a question that says was there a list
of women or girls who provided massages?
MR. PAGLIUCA: She has been previously deposed on this subject.
9
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 10 of 17
MR. BOIES: I think this is squarely in the court's order, but if you instruct her not to
answer, you instruct her not to answer.
MR. PAGLIUCA: We'll find out.
Id. at pg. 184:14-185:6.
Q. “In 2005, were you aware of any effort to destroy records of messages you had taken
of women who had called Mr. Epstein in the prior period?
MR. PAGLIUCA: Don’t answer that question. It’s outside the court’s order.
Id. at pg. 177:5-11.
Ample evidence in this case establishes that not only did Defendant recruit underage girls
for massage and sexual activities with Epstein, but that she participated in calling the girls;
getting other people to bring girls; talking to the girls; taking massages from and leaving
messages about the girls; and scheduling the girls to come over. Accordingly, questions
concerning written records documenting Defendant’s involvement in, and knowledge of, the
girls who “massaged” Epstein is clearly within the ambit of this Court’s Order. For example, a
message from July of 2004 records Defendant, “Ms. Maxwell,” giving a message to Mr. Epstein
as message from (an underage girl who was 14 years old on the date of the message)
that “ is available on Tuesday no one for tomorrow.” See GIUFFRE001465.
10
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 11 of 17
llB'!\llU'@ 't'CIJ.il CAI.I.
l\ l5
Mc~~li LE°' " @N ,_T_U_t-,
:,-~
-- _
NO ,· t::l N i l·Fe"ft/~ £JMO~~
~
ft
See Schultz Decl. at Composite Exhibit 8, Messages Involving Defendant3. In the investigation
of Mr. Epstein’s sex crimes against minors, law enforcement was able to confirm identities of
underage victims through the use of the names recorded these messages, which were recovered
from Epstein’s trash.4 Accordingly, the messages, and the girls described therein, are fully within
the ambit of this Court’s Order.
3
GIUFFRE001523; GIUFFRE001427; GIUFFRE001451; GIUFFRE001454; GIUFFRE001460;
GIUFFRE001461; GIUFFRE001464; GIUFFRE001465; GIUFFRE001436; GIUFFRE001435;
GIUFFRE001472; GIUFFRE001474; GIUFFRE001492; GIUFFRE001553; GIUFFRE001388;
GIUFFRE001555; GIUFFRE001556; GIUFFRE001557; GIUFFRE001392; GIUFFRE001526;
GIUFFRE001530; GIUFFRE001568; GIUFFRE001536; GIUFFRE001538; GIUFFRE001541;
GIUFFRE001546; GIUFFRE001399; GIUFFRE001402; GIUFFRE001405; GIUFFRE001406;
GIUFFRE001449; GIUFFRE001409; GIUFFRE001410; GIUFFRE001411; GIUFFRE00; etc.
4
Palm Beach Police Officer Recarey was deposed about information pulled by police officers
from trash discarded by Epstein from his home:
Q. The next line down is what I wanted to focus on, April 5th, 2005. This trash
pull, what evidence is yielded from this particular trash pull?
THE WITNESS: The trash pull indicated that there were several messages with
written items on it. There was a message from HR indicating that there would be
11
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 12 of 17
Finally, Defendant also refused to answer foundational questions that are necessary to
precede questions authorized by this Court, such as:
x “In terms of preparing for this deposition, what documents did you review?” See Schultz
Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at 174:2-4.
x Now, have you ever engaged in oral sex? Id. at 18:14-15.
x Q. Did you ever have oral sex with anyone in any of Mr. Epstein's five homes that you've
identified other than Mr. Epstein? Id. at 20:7-10.
x Did you, in the 1990s and 2000s, engage in sexual activities other than intercourse with
women other than what you have testified to already? Id. at 89:24-90:3.
an 11:00 appointment. There were other individuals that had called during that
day.
Q. And when you would -- when you would see females' names and telephone
numbers, would you take those telephone numbers and match it to -- to a person?
THE WITNESS: We would do our best to identify who that person was.
Q. And is that one way in which you discovered the identities of some of the other
what soon came to be known as victims?
THE WITNESS: Correct.
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016 Deposition of Detective
Recarey at pg. 42:14-43:17. Recarey went on to describe the importance of the information:
Q. Did you find names of other witnesses and people that you knew to have been
associated with the house in those message pads?
THE WITNESS: Yes.
Q. And so what was the evidentiary value to you of the message pads collected
from Jeffrey Epstein's home in the search warrant?
THE WITNESS: It was very important to corroborate what the victims had
already told me as to calling in and for work.
Id. at 78:25 -79:15.
12
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 13 of 17
In sum, Defendant refused to answer important questions relating to the following topics that
were authorized by this Court’s Order: (1) Defendant’s information relating to and knowledge of
the circumstances of Johanna Sjoberg performing massages and sex acts upon Epstein; (2)
Defendant’s information relating to and knowledge of the circumstances relating to the abuse of
Maria Farmer and her sister by Defendant and Epstein; (3) Defendant’s information relating to
and knowledge of any lists or records of girls who gave “massages” to Epstein; (4) Defendant’s
involvement with messages (or related documents) showing Defendant’s knowledge of, and
involvement in, the scheduling of underage girls for massage and sex with Epstein, and any
destruction of evidence related to these messages (or related records); (5) foundational questions
that were necessary precedent to asking questions authorized by this Court’s Order; and (6) all
related questions that arise out of any response Defendant provides within the parameters of the
Court’s June 20, 2016, Order.
DISCUSSION
The Court should compel Ms. Maxwell to answer questions in the topic areas where she
refused to answer during her recent deposition. Topics 1 - 4 above are central parts of this case,
and Topics 5 and 6 link directly to central parts of this case. Ms. Giuffre, and now other
knowledgeable witnesses, have explained and testified that Defendant not only had knowledge of
Epstein’s massages and sexual activity with others, but she actively facilitated the sexual
massages through recruiting young females and underage girls for the purpose of “massage” and
sexual activity. And proof that Defendant both had knowledge of, and was involved in, these
schemes and encounters, will further help prove that Defendant’s statements to the press that
Virginia’s allegations were “obvious lies” was itself an obvious lie.
13
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 14 of 17
The questions Defendant refused to answer fall squarely within this Court’s earlier order.
Defendant can have no legitimate basis for obstructing the search for truth by refusing to answer.
The Court should, again, compel Defendant to answer all these questions. See Fed. R. Crim. P.
37(a)(3)(B)(i); see, e.g., Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010 WL 1541585, at
*20 (S.D.N.Y. Apr. 12, 2010) (“Under the Federal Rules, when a party refuses to answer a
question during a deposition, the questioning party may subsequently move to compel disclosure
of the testimony that it sought. The court must determine the propriety of the deponent's
objection to answering the questions, and can order the deponent to provide improperly withheld
answers during a continued deposition” (internal citations omitted)). Of course, the party
objecting to discovery must carry the burden of proving the validity of its objections, particularly
in light of “the broad and liberal construction afforded the federal discovery rules . . . .” John
Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014). For
purposes of a deposition, the information sought “need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Chen-
Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013) (citing Fed.R.Civ.P.
26(b)(1)).
Defendant cannot claim that such questions were outside the scope of this Court’s order,
as they directly relate to (1) her knowledge of individuals who provided “massage” to Epstein
and (2) her knowledge of sexual activities of others with or involving Epstein. Defendant’s
knowledge of the individuals involved in the sex/”massages” relating to Epstein, and her
knowledge about the sex/”massage” related to Epstein is precisely what this Court directed her to
-
answer. See also, Condit v. Dunne, 225 F.R.D. 100, 113 (S.D.N.Y. 2004) (in defamation case,
“Plaintiff is hereby ordered to answer questions regarding his sexual relationships in so far as
14
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 15 of 17
they are relevant to a defense of substantial truth, mitigation of damages, or impeachment of
plaintiff.”); Weber v. Multimedia Entm't, Inc., No. 97 CIV. 0682 PKL THK, 1997 WL 729039, at
*3 (S.D.N.Y. Nov. 24, 1997) (“While discovery is not unlimited and may not unnecessarily
intrude into private matters, in the instant case inquiry into private matters is clearly relevant to
the subject matter of the suit. Accordingly, plaintiff Misty Weber shall respond to defendants'
interrogatories concerning her sexual partners . . . .”). Moreover, generally speaking, instructions
from attorneys to their clients not to answer questions at a deposition should be “limited to
-
[issues regarding] privilege.” Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). In this
case, defense counsel once again ranged far beyond the normal parameters of objections and
gave instructions directly in contravention of this Court’s Order directing Defendant to answer
exactly the type of questions posed to her.
In light of Defendant’s willful refusal to comply with this Court’s Order directing
Defendant to answer questions related to the Court’s June 20, 2016, Order, including topics
enumerated above, Ms. Giuffre also seeks attorneys’ fees and costs associated with bringing this
motion, as well as fees and costs associated with re-taking Defendant’s deposition.
CONCLUSION
Defendant should be ordered to sit for a follow-up deposition and directed to answer
questions regarding the topics enumerated above.
Dated: July 29, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
15
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 16 of 17
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52025
5
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
16
Case 1:15-cv-07433-LAP Document 1327-5 Filed 01/05/24 Page 17 of 17
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of July, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
17
giuffre-maxwell
Unknown
15 pages
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 1 of 15
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
______________________________/
PLAINTIFF VIRGINIA GIUFFRE’S MOTION FOR CLARIFICATION
OF COURT’S ORDER AND FOR FORENSIC EXAMINATION
BOIES, SCHILLER & FLEXNER LLP
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 2 of 15
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.......................................................................................................... ii
I. INTRODUCTION ..................................................................................................................1
II. CLARIFICATION OF THIS COURT’S MARCH 17, 2016 RULING.................................3
A. Documents Evidencing Communications and Interactions With
Co-Conspirators.............................................................................................................3
B. Documents Concerning Sexual Abuse And Trafficking Of Females............................4
III. ARGUMENT – FORENSIC EXAMINATION..................................................................7
CONCLUSION .............................................................................................................................10
i
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 3 of 15
TABLE OF AUTHORITIES
Page
Cases
Byrnie v. Town of Cromwell, Bd. Of Educ,,
243 F.3d 93 (2d Cir. 2001) ...........................................................................................................8
Genworth Fin. Wealth Mgmt., Inc. v. McMullan,
267 F.R.D. 443 (D. Conn. 2010) ................................................................................................10
In re Vitamin C Antitrust Litig.,
No. 05 Civ. 453, 2013 WL 504257 (E.D.N.Y. Feb. 8, 2013) ......................................................8
Stinson v. City of New York
10 CIV. 4228 (RWS), 2015 WL 4610422 (S.D.N.Y. July 23, 2015) ....................................9, 10
Statutes
Federal Rule of Civil Procedure 26 .................................................................................................8
Other
In re: Pilot Project Regarding Case Management Techniques for Complex
Civil Cases in the Southern District of New York, M10-468 ......................................................9
Sedona Principles for Electronic Document Production, Second Edition, 2007............................9
ii
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 4 of 15
Plaintiff Virginia L. Giuffre, by and through her undersigned counsel, respectfully
submits this Motion for Clarification regarding this Court’s Ruling at the March 17, 2016
hearing1, and seeks a forensic examination of defendant’s computers and states as follows.
I. INTRODUCTION
Ms. Giuffre served Defendant with discovery requests on October 27, 2015. Now, mid-
April of the following year, Defendant has still only produced exactly two documents. Ms.
Giuffre moved to compel Defendant to produce responsive documents and the Court held a
hearing on March 17, 2016. During the hearing, the Court granted in part, Ms. Giuffre’s Motion
to Compel. Now, twenty-six (26) days later, Defendant has still failed to produce any additional
documents. In contrast, to date, Ms. Giuffre has produced over 4,700 pages of documents in
response to Defendant’s overbroad discovery requests.
Ms. Giuffre requested Defendant’s production by April 6, 2016, which provided
Defendant with twenty (20) days from the date of the Court’s hearing compelling production.
See Declaration of Sigrid McCawley (“McCawley Decl.”) at Exhibit 1, March 28, 2016
Correspondence. Defendant failed to respond and failed to produce anything, and therefore, Ms.
Giuffre scheduled a “meet and confer” conference on April 11, 2016 to determine when, if ever,
Defendant planned to produce the documents as directed by the Court. See McCawley Decl. at
Exhibit 2, April 7, 2016 Correspondence.
At the meet and confer, the Defendant took the position that she would not produce any
additional documents until the Court ruled at the April 21, 2016 hearing on the Motion to Appear
Pro Hac Vice of former federal Judge Paul Cassell, and Co-Counsel Brad Edwards’ filings.
Defendant’s position, as Ms. Giuffre understands it, is that the documents are “confidential” and
1
Ms. Giuffre respectfully requests that, if possible, this Motion for Clarification be set for hearing on an
expedited basis in order to be heard at the hearing already scheduled on other related discovery issues on
April 21, 2016 at 11:00 am.
1
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 5 of 15
she will not produce them until the Court rules on whether or not Ms. Giuffre’s other lawyers,
Paul Cassell and Bradley Edwards, are “actively working on this case” under the terms of the
Protective Order, such that they are entitled to receive confidential information. Ms. Giuffre
views this as simply another attempt to stall and refuse to engage in discovery.
Fact discovery ends in a little over six weeks. Defendant’s refusal to comply with her
discovery obligations, and her refusal to turn over documents knowing that Defendant is being
deposed on April 22, 2016, shows her belief that she can get away with producing a mere two
emails and run out the clock on discovery.
It also became clear during the meet and confer conference that Defendant’s
interpretation of this Court’s ruling was vastly different than Ms. Giuffre’s understanding.2 Ms.
Giuffre contends that the Court’s ruling on March 17, 2016, granting in part Ms. Giuffre’s
Motion to Compel, held the following:
(1) Directed that the relevant time period of Defendant’s search and production of
documents would be 2000 – present.
(2) Directed the production of documents responsive to Ms. Giuffre’s requests for
production that sought Defendant’s communications with certain, named
individuals in the requests. For example, Request no. 1 seeks all “communications
with Jeffrey Epstein from 1999 – present.” Request no. 6 seeks all
“communications with … Emmy Taylor, Sarah Kellen, Eva Dubin, Glen Dubin,
Jean Luc Brunel and Nadia Marcinkova” from 1999 – present.) (The other requests
that fit into this category are Request Nos. 1, 2, 3, 4, 6, 17, 32, 37, and 38).
(3) Directed the production of documents responsive to Ms. Giuffre’s remaining
requests but limited those documents to documents that relate to the subject matter
of the “sexual abuse or sexual trafficking” of “females.” For example, Request No.
24 seeks “all documents relating to contact lists, phone lists or address books for
you or Jeffrey Epstein from 1999 – present.” This request was limited by the Court
to require production if the materials relate to the subject matter of “sexual abuse or
sexual trafficking of females.” It is already public knowledge that law enforcement
2
Defendant’s understanding of the ruling is so narrow that in Defendant’s view, the only remaining
volume of documents she would be required to produce – other than the two initial documents she
produced -- is approximately “50” pages of documents that presumably date from the last 18 months. Of
course, she has still not produced these documents to Ms. Giuffre.
2
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 6 of 15
retrieved at least one “black book” wherein Jeffrey Epstein and the Defendant kept
lists of females who were utilized for “massages.” Now, in this civil discovery,
Defendant should be producing contact lists or records she kept of the females she
contacted to perform these “massages” for convicted sex offender Jeffrey Epstein.
(The Requests that fall into this category relating to the sexual abuse and sex
trafficking of females are Request Nos. 7, 8, 9, 10, 11, 15, 19, 21, 22, 23, 24, 33 and
39).
In contrast, Defendant’s position, as Ms. Giuffre understands from the meet and confer, is
that she only has to produce documents which include a communication with an individual
which directly discuss or reference the sex abuse or sexual trafficking of females. Defendant
contends that all other requests were denied. Accordingly, Ms. Giuffre requests clarification of
this Court’s ruling in order to further discovery in this case.
II. CLARIFICATION OF THIS COURT’S MARCH 17, 2016 RULING
A. Documents Evidencing Communications and Interactions with Co-
Conspirators
Defendant admitted to withholding documents responsive to requests that sought
documents concerning interactions and communications with particular, named individuals.3 It is
Ms. Giuffre’s understanding that the Court directed the production of those documents. At the
hearing, Ms. Giuffre argued in detail as to why documents showing communications between
Maxwell and various individuals, for example, Sarah Kellen, are highly relevant.
MS. McCAWLEY: For example, two of the people we asked for documents and
communications with, Sarah Kellen and Nadia Marcinkova, when they were asked in
their depositions about Ms. Maxwell sexually trafficking underage girls, both of those
individuals took the Fifth. If there are documents between Ms. Maxwell and Sarah
Kellen discussing those issues at any time from 1999 to present, we want those
documents, your Honor. And while they say that day-to-day communications with
Jeffrey Epstein wouldn’t be relevant, they would. If they’re communicating on a daily
basis, that’s relevant.
3
See McCawley Decl. at Exhibit 3, Defendant’s Responses and Objections to Plaintiff’s Requests for
Production, Requests Nos. 1, 3, 4, 6, 17, 32, 37, and 38.
3
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 7 of 15
See McCawley Decl. at Exhibit 4, March 17, 2016 Hearing before Judge Robert Sweet, at 28:2-
12. After hearing arguments, the Court ruled as follows:
“I think any documents with named individuals, that's fine.”
Judge Sweet, March 17, 2016, Hearing Transcript at 30:4-5. Despite this apparent ruling,
Defendant has failed to produce the responsive documents.
Defendant also takes the position that she is not required to produce communications
with these individuals unless they specifically discuss the “sexual abuse” or “sexual trafficking”
of “females.” However, it is Ms. Giuffre’s understanding that she is entitled to communications
with the key named individuals, and it is not limited only to a document between the individuals
explicitly discussing “sexual abuse.” Ms. Giuffre respectfully requests that the Court direct
Defendant to produce the documents she has -- but is withholding -- as to Request Nos. 1, 3, 4, 6,
17, 32, 37, and 38.
B. Documents Concerning Sexual Abuse and Trafficking of Females
Ms. Giuffre interpreted this Court’s ruling to award Ms. Giuffre discovery on her
remaining requests for production (not specifically limited to named individuals) to the extent
those requests relate to the “sexual abuse or sexual trafficking of females.” That ruling would
include the following Request Nos. 7, 8, 9, 10, 11, 15, 19, 21, 22, 23, 24, 33, and 39.
Specifically, the Court ruled:
THE COURT: And then I would say any documents that relate to the duties to be performed
by Maxwell. And it may be that there are other definitional categories that would be
appropriate but they don't occur to me at the moment. Now, let me ask the plaintiff, how do
you want to define the activities?
MS. McCAWLEY: I'm comfortable defining "activities," your Honor. I think you said any
documents which relate to the activities of defendant with respect to the practice, which we
would say would be sexual abuse or trafficking of minors.
THE COURT: OK.
4
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MS. McCAWLEY: And I think that everybody has an understanding of what that is. So if
there is emails about girls getting massages for those sorts of --
THE COURT: All right. So what do you all think about that?
MR. PAGLIUCA: If we're limiting it to minors, which I understand this to be limited to, I
think that's fine. I mean, we are talking about -- the allegation in this case is, according to
Ms. Giuffre, is that she was an underage minor, trafficked individual, and my client has
vehemently denied that in the press and here. And so that's the issue. And I think if that's
what we are talking about, we are fine with that.
MS. McCAWLEY: Your Honor, can I just clarify really quickly? There was trafficking of
both underage and women that were over 18. So I wouldn't feel comfortable limiting it to
just the minors, under 18.
MR. PAGLIUCA: You can't traffic somebody --
MS. McCAWLEY: You can prosecute someone over international lines, and that is a federal
offense if they are --
THE COURT: Let's --
MR. PAGLIUCA: That's not the definition.
THE COURT: Let me -- if we skip the minors, what would it be? It would be any -- yes, it
would be any --
MS. McCAWLEY: Females.
THE COURT: The documents relating to trafficking, what for?
MS. McCAWLEY: Sexual trafficking or sexual abuse of any female.
THE COURT: That is OK.
MR. PAGLIUCA: To be clear, we talking about something that is illegal, right?
THE COURT: Are we? I don't think it has to be illegal in the context of the defamation.
MR. PAGLIUCA: Let me sort of recap, your Honor. Because the defamation is that Ms.
Giuffre was a minor and from 1999 to 2002 somehow was, quote-unquote, sexually
trafficked.
THE COURT: Your client's statement is that she was a liar and -- I mean, I don't mean to
prejudge that, but I mean that's the issue as I understand it.
MR. PAGLIUCA: Well, and the Court narrowed this down in the Court's order on the
motion to dismiss, which is that the statements relating to Ms. Maxwell's participation in the
trafficking of the plaintiff were untrue or unfounded. Those are the statements.
THE COURT: OK.
5
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MS. McCAWLEY: Yes.
THE COURT: Then I think it is conceivable that it wouldn't be limited to minors. What I'm
trying to say is if there were trafficking other than with minors, that might also be relevant to
the existence of the practice.
MS. McCAWLEY: Exactly.
THE COURT: OK. So it isn't limited to minors.
MS. McCAWLEY: Thank you, your Honor.
See McCawley Decl. at Exhibit 4, March 17, 2016, Hearing Transcript at 30:10-33:1 (Emphasis
added).
It is Ms. Giuffre’s counsel’s position that activities related to the sexual abuse or sexual
trafficking are sought in many of Ms. Giuffre’s requests for production. For example, Request
no. 7 seeks “All video tapes, audio tapes, photographs or any other print or electronic media
relating to females under the age of 18 from the period of 1999 – present.” If there are pictures
with Defendant, Jeffrey Epstein, and a female, and that female was being sexually trafficked or
abused, the Defendant should produce that picture. Alfredo Rodriguez, former house staff,
testified in a prior case that Defendant had pictures of underage females on her computer.
Q. “Did they appear to be doing any sexual?
A. Yes, ma’am.
Q. And in these instances were there girls doing sexual things with other girls?
A. Yes, ma’am.
Q. And I’m still talking about the pictures on Ms. Maxwell’s computer.
A. Yes, ma’am.”
See Decl. of Sigrid McCawley at Exhibit 5, Alfredo Rodriguez August 7, 2009 Dep. Tr. at 311-
312. Yet, Defendant has failed to produce any documents in response to this request. It is Ms.
Giuffre’s counsel’s understanding that this Court required production of all documents related to
sexual abuse or sex trafficking.
Through the April 11, 2016, meet and confer, it became apparent that opposing counsel’s
view is that, since Defendant denies sexually trafficking females, Defendant is not required to
6
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 10 of 15
produce documents that tend to show the sexual abuse or sexual trafficking, only documents that
specifically discuss sexual trafficking.4 Defendant’s view would exclude from production
documents such as flight manifests listing the girls Defendant flew over to Jeffrey Epstein’s
island, and payments made from Epstein to Defendant for her services. Under Ms. Giuffre’s
interpretation, such documents relate to the “sexual abuse and sex trafficking of females,” and
therefore are discoverable under this Court’s ruling.
III. ARGUMENT - FORENSIC EXAMINATION
Ms. Giuffre attempted to negotiate an electronic protocol to ensure the proper collection
of discovery materials, and Defendant rejected that proposal. See McCawley Decl. at Exhibit 6,
March 10, 2016 Correspondence. Ms. Giuffre’s attorneys have expended considerable sums of
money on the retention of an outside e-discovery management company to assist in a thorough
collection, review, and production of responsive documents to ensure compliance with her
discovery obligations. Ms. Giuffre’s attorneys have also spent many hours identifying,
reviewing, and producing responsive documents. To date, Ms. Giuffre has produced nearly five
thousand pages of documents, including documents responsive to Defendant’s request that she
produce 18 years of correspondence with her various family members.
In addition to searching hard-copy documents and other sources, Ms. Giuffre’s counsel
have imaged Ms. Giuffre’s computer to collect its electronically stored data. Further, Ms.
4
Ms. Giuffre does not expect the evidence of sex trafficking to be found in, for example, a 2001 memo
from Defendant to Jeffrey Epstein with a subject line stating “Our Sex Trafficking Plan.” Instead, Ms.
Giuffre seeks evidence of sex trafficking akin to the evidence that is publicly available, such as the flight
logs Ms. Giuffre produced showing Defendant taking Ms. Giuffre on more than 20 trips with Jeffrey
Epstein when she was a minor, and the message pads seized by the police that Ms. Giuffre produced
wherein Defendant supplied Epstein with the names and numbers of underage girls. See McCawley Decl.
at Exhibit 7, Flight Logs and Exhibit 8, message pads. Defendant was intimately involved in the day-to-
day life of convicted sex offender Jeffrey Epstein, flying on his private planes over 360 times. Yet she
has only produced two responsive documents in this case. Ms. Giuffre is entitled to such discovery to
prove her claim at issue in this case, and Defendant should not be allowed to refuse to produce critically
relevant information.
7
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Giuffre’s counsel captured all of Ms. Giuffre’s emails in order to collect that electronically
stored information (ESI). Ms. Giuffre has made this collection in compliance with a standard ESI
Protocol that was provided to Defendant, but that Defendant has refused to comply with. Courts
have found this to be the best practice to ensure compliance with Fed. R. Civ. P. 26. Finally, Ms.
Giuffre’s counsel applied close to 200 broadly-drafted search terms to the collected ESI to locate
documents that may be responsive to Defendant’s far-reaching requests. Despite this, and
despite attempting to have dialogue about collection procedures, Defendant has refused to
discuss her questionable collection processes that yielded a mere two responsive documents.
Defendant’s response during the meet and confer was that she didn’t believe this dialogue was
“appropriate.” Defendant’s refusal necessitates a forensic review of her electronic data in order
to ensure that Defendant is not wrongfully withholding discoverable material.5
Defendant has also declared that she regularly deletes documents. See McCawley Decl. at
Exhibit 3, Defendant’s Responses and Objections at ¶ 16. As the Court knows, once litigation is
contemplated, a person is under a duty not to destroy electronic information. The duty to
preserve arises, not when litigation is certain, but rather when it is “reasonably foreseeable.”
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001); In re Vitamin C
Antitrust Litig., No. 05 Civ. 453, 2013 WL 504257, at *9 (E.D.N.Y. Feb. 8, 2013) (“[T]he law is
clear that the obligation to preserve evidence arises when the party has notice that the evidence is
relevant to litigation, and that this obligation may arise prior to the filing of a suit if the litigation
is reasonably anticipated.”) (quotations omitted). A forensic exam can recover certain types of
“deleted” data, and it can show how and when certain data was “deleted” or “erased.”
5
Defendant claims that she contemplated filing a lawsuit back in 2011. Accordingly, at a minimum, she
should have been retaining her electronic data from that date forward.
8
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 12 of 15
At the meet and confer, Ms. Giuffre sought again to have a dialogue about the discovery
collection procedures as employed by Defendant, particularly since Defendant’s search only
yielded two documents. Defendant’s counsel told Ms. Giuffre’s counsel that it was not
“appropriate” to disclose her document collection processes, and refused to provide any
information regarding what type of search was done on Defendant’s documents that, in fact,
yielded a mere two responsive documents. What is the Defendant hiding?
Defendant’s claim - that discussion and/or negotiation of ESI collection procedures is
“inappropriate” - is perplexing. The US District Court for the Southern District of New York
(SDNY) issued a Standing Order for certain types of cases that is instructive here as it addresses
the discovery of electronically stored information, M10-468, In re: Pilot Project Regarding Case
Management Techniques for Complex Civil Cases in the Southern District of New York. The
M10-468 Order requires a Joint E-Discovery Submission, requiring the parties to address, prior
to the preliminary conference, their (1) preservation obligations, (2) search and review protocols,
and (3) sources of ESI production. Under this model order, the parties are required to discuss
methods for search and review, including potential keyword searches, date restrictions, and
whether backup files should be searched. See also The Sedona Principles for Electronic
Document Production, Second Edition, 2007, at p ii: “Parties should confer early in discovery
regarding the preservation and production of electronically stored information . . and seek to
agree on the scope of each party’s rights and responsibilities.”. Given this authority, and given
modern jurisprudence on the same, e.g., Stinson v. City of New York, No. 10 CIV. 4228 RWS,
2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.), it is further shocking that
Defendant refuses to have a dialogue about the procedures she has undertaken to collect
electronic documents.
9
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Again, Defendant refuses to disclose any information whatsoever about what was done to
collect Defendant’s documents, including her ESI, and has produced only two documents. The
secrecy and near complete failure to produce necessitates a forensic review. Therefore, Ms.
Giuffre requests expert forensic examination of Defendant’s computers to perform the following:
(1) Run basic search terms, including the names of the individuals in the discovery
requests, to determine if Defendant properly searched her electronic data.
(2) Determine the pattern and practice of deletion utilized by Defendant.
(3) Determine whether Defendant ran any deletion programs on her computer, and the
date they were run, including but not limited to, evidence of “wipes” of Defendant’s
hard drive.
Specifically, Ms. Giuffre’s counsel requests that the Court order a neutral, third party
forensic examiner, who would be subject to the Protective Order, to perform a forensic
examination of Defendant’s computers as described above.6 See Genworth Fin. Wealth Mgmt.,
Inc. v. McMullan, 267 F.R.D. 443, 449 (D. Conn. 2010) (“grant[ing] the Plaintiff's motion to
compel forensic imaging to be performed by a neutral court-appointed expert” under a
confidentiality agreement).
CONCLUSION
For the reasons set forth above, Ms. Giuffre respectfully requests clarification that this
Court’s March 17, 2016, Ruling requires the production of documents concerning named
individuals in Request Nos. 1, 3, 4, 6, 17, 32, 37, and 38, documents concerning sex abuse and
trafficking in Request Nos. 7, 8, 9, 10, 11, 15, 19, 21, 22, 23, 24, 33, and 39, and requests that the
6
Alternatively, Ms. Giuffre seeks this Court to Order that Defendant image her computers, collect her
email, and run negotiated search terms across the resultant data in order to identify responsive documents.
Stinson v. City of New York, No. 10 CIV. 4228 RWS, 2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015)
(Sweet, J.) (granting in part a motion to compel, holding “the Plaintiffs are entitled to all relevant and
non-privileged documents within the ESI . . . [t]he parties shall meet and confer in order to set a search
protocol . . ..” Stinson v. City of New York, No. 10 CIV. 4228 RWS, 2015 WL 4610422, at *7 (S.D.N.Y.
July 23, 2015).
10
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Court allow a neutral third party to conduct a forensic exam be completed upon Defendant’s
computers as detailed above.
Dated: April 13, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
11
Case 1:15-cv-07433-LAP Document 96 Filed 04/13/16 Page 15 of 15
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 13, 2016, I electronically filed the foregoing
document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing
document is being served this day on the individuals identified below via transmission of Notices
of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey S. Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
Email: [email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
12
giuffre-maxwell
Unknown
21 pages
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 1 of 21
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S SUPPLEMENT TO MOTION FOR ADVERSE INFERENCE
INSTRUCTION BASED ON NEW INFORMATION
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Supplement to her Motion for Adverse Inference Instruction Based on New Information. Eleven
months into this case, and after the close of fact discovery, Defendant continues to refuse to
abide by her most basic and fundamental discovery obligations. A summary of this ongoing and
willful non-compliance, as well as a supplement to her motion for an adverse inference
instruction based on new information, follows. Most notably, Defendant claims to have run
search terms and reviewed over 10,000 documents, but, remarkably, claims that not a single
document - not one - is relevant to this litigation, and therefore produced nothing with respect to
-
the search.
I. FACTUAL BACKGROUND
On October 27, 2015, Ms. Giuffre submitted her first set of Requests for Production.
Defendant failed to make a reasonable search or production of her documents, and Ms. Giuffre
sought relief from the Court numerous times:
1
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x Plaintiff’s Response in Opposition to Defendant’s Motion to Stay Discovery (DE 20)
- Defendant’s Motion to Stay - Denied (DE 28).
x Plaintiff’s February 26, 2016 Letter Motion to Compel Defendant to Sit for Her
Deposition (DE 63) - Granted (DE 106).
x Plaintiff’s Motion to Compel Documents Subject to Improper Claim of Privilege (DE
33) - Granted in Part (DE 73).
x Plaintiff’s Motion to Compel Documents Subject to Improper Objections (DE 35) -
Granted in part (106).
x Plaintiff’s Response in Opposition to Defendant’s Motion for a Protective Order
Regarding Defendant’s Deposition (DE 70) - Defendant’s Motion Denied (DE 106).
x Plaintiff’s Motion for Forensic Examination (DE 96) - Granted in part (June 20, 2016
Sealed Order).
x Plaintiff’s Motion to Compel Defendant to Answer Deposition Questions (DE 143) –
Granted (June 20, 2016 Sealed Order).
x Plaintiff’s Motion for Adverse Inference Instruction (DE 279) - Pending.
x Plaintiff’s Motion to Enforce the Court's Order and Direct Defendant to Answer
Deposition Questions (DE 315) - Pending.
On June 20, 2016, this Court Granted in Part Ms. Giuffre’s Motion for Forensic Exam,
and directed Defendant to capture her data and run mutually agreed-upon search terms. The
•
Court also ordered Defendant to produce documents to Ms. Giuffre by July 11, 2016. (This part
of the Court’s Order is not under seal and can be found at DE 264-1). On June 30, 2016, and on
July 8, 2016, counsel for Ms. Giuffre sent letters to Defendant following up on this Order and
proposing search terms (attached as exhibits to DE 279). Defendant did not respond. The July 11,
2016, deadline passed without any production from Defendant.
On July 13, 2016, Ms. Giuffre moved for an adverse inference instruction (DE 279).
Thereafter, the Court denied Defendant’s motion to strike Ms. Giuffre’s motion for an adverse
inference instruction, directing the parties to submit search terms to the Court on August 1, 2016,
advising that “[a] briefing schedule and the submission date will be set after search terms are
determined.” (DE 301).
Pursuant to this Court’s July 22, 2016, on Monday, August 1, 2016, Ms. Giuffre filed the
list of search terms that Ms. Giuffre believes should be run over Defendant’s data. (DE 323).
2
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II. DISCUSSION
At a minimum, the Court should direct Defendant to run the search terms in the list
originally submitted by Ms. Giuffre. More broadly, the Court should grant Ms. Giuffre’s request
for an adverse inference based on the incurable prejudice she has suffered as a result of
Defendant’s failure to comply with her discovery obligations and this Court’s June 20, 2016,
-
Order.
A. Defendant’s Refusal to Even Run Ms. Giuffre’s Name as a Search
Term.
Defendant has been recalcitrant in running even the most basic searches of electronic
data. For example, in a letter sent on June 8, 2016, and in a meet and confer call on July 26,
2016, counsel for Ms. Giuffre asked Defendant to run Ms. Giuffre’s name as a search term to
find documents responsive to (for example) Ms. Giuffre’s Request No. 12, which sought
Defendant’s documents relating to Ms. Giuffre. That request was refused in writing on Friday,
July 29, 2016, at 7:02 p.m. (EST). See McCawley Decl. at Exhibit 1, July 29, 2016, 7:02 p.m.,
Letter from Ty Gee to Ms. Schultz (refusing to run Ms. Giuffre’s name as a search term as part
of effort to identify responsive documents). Specifically, Mr. Gee’s letter said that such a search
term was inappropriate because it was “guaranteed” to generate “thousands of hits”:
3
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 4 of 21
In your June 8 letter, apparently acknowledging the overbreadth of the RFP,
you suggest the defendant could respond by conducting an electronic search for
plaintiff's various names-searching all documents in defendant's possession.
Setting aside that this is not what the RFP asked for, that too would entail an
extraordinary and unreasonable amount of time and money, since plaintiff's
various names are guaranteed to have thousands of hits, and someone would
have to review every hit to determine, e.g., whether the document previously
was provided to you, whether the document is not subject to production
because of privilege, or whether it was a false hit. What would be the purpose of
such an enormous expenditure of time and money? You have not said, but it
appears fairly obvious that this is fishing with a drift net. We decline your
request to engage in this exercise.
Having represented that running Ms. Giuffre’s that name was an “extraordinary and
unreasonable” task “guaranteed to have thousands of hits, and someone would have to review
every hit …” (McCawley Decl. at Exhibit 1 at pg. 2 (emphasis added)), a mere three days later,
on Monday, August 1, 2016, Defendant seemingly reversed her position, and represented to the
Court that she had, in fact, run Ms. Giuffre’s names as search terms. (DE 321-6). But, contrary to
the previous claim that it would be enormously burdensome to sort through these “hits,”
Defendant now claimed that she had not found any responsive documents.
It is possible that Defendant changed her mind over the weekend and reversed course.
And, it is possible that Defendant did run those recently-contested terms over the weekend. And,
it is possible that Defendant, over the weekend, gathered a team of lawyers to review the
“thousands of hits” yielded by those terms. And, it is possible that not a single one of
Defendant’s thousands of documents bearing Ms. Giuffre’s name was relevant to this action. All
these things are possible, but none is likely.
Either way, Defendant’s refusal to even include Ms. Giuffre’s name as a search term
(either in reality or in the position she took on Friday) is evidence of Defendant’s continued bad
faith and complete avoidance of her discovery obligations. The case centers on Defendant’s
4
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defamatory statements made about Ms. Giuffre. Obviously, Ms. Giuffre has a compelling need
to obtain Defendant’s documents about her, and she has accordingly requested Defendant’s
communications concerning her. Defendant’s documents concerning Ms. Giuffre are directly
relevant to this action, particularly because Defendant has created multiple drafts of statements to
the press defaming Ms. Giuffre.
Throughout the months of motion practice concerning these issues, and throughout all of
the meet and confers, Defendant’s counsel has never presented a case supporting the far-fetched
position that documents in the possession of the Defendant, and containing explicit references to
Ms. Giuffre, are irrelevant and not subject to discovery. Defendant’s refusal to use Ms. Giuffre’s
name as a search term, in light of Ms. Giuffre’s requests for production, and in light of the
defamation claim in this case, is so unfounded and obstructionist that it constitutes a violation of
this Court’s Order, whether or not Defendant actually engaged in the “extraordinary and
unreasonable” task of running the term over the weekend.
The refusal to run this term is particularly inappropriate in light of this Court’s order
directing the Defendant to run “mutually agreed” upon search terms. It is impossible for Ms.
Giuffre’s counsel to begin working with opposing counsel to craft appropriate search terms when
they refuse to extend minimal cooperation - first by completely ignoring Ms. Giuffre’s multiple
attempts to negotiate terms, then by ignoring the deadline to produce documents, and then by
refusal to run the most basic search term. The first term that should be run in this defamation
action - the most fundamental term - is Ms. Giuffre’s name. Defendant’s refusal to run that term
is palpably unreasonable.
Defendant’s refusal to cooperate is even more egregious given Ms. Giuffre’s extensive
efforts to provide discovery to Defendant. Ms. Giuffre has complied with Defendant’s overly-
5
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 6 of 21
broad discovery requests that sought documents concerning dozens of individuals, including Ms.
Giuffre’s close family members. To comply with these extraordinarily broad requests, Ms.
Giuffre ran search terms constituting the names of all these individuals. For example, Ms.
Giuffre has run the following names as search terms, including Defendant’s name, over her data:
x Ghislaine (the defendant)
x Maxwell (the defendant)
x Jeffrey (Jeffrey Epstein)
x Epstein (Jeffrey Epstein)
x Sky Roberts (the name Ms. Giuffre’s father and brother)
x Lynn, Roberts (the name of Ms. Giuffre’s mother)
Indeed, to date Ms. Giuffre has produced 8,321 pages of documents in her possession.
Fact discovery has now closed. Ms. Giuffre has requested that Defendant negotiate search
terms with her as far back as March 10, 2016. This Court ordered Defendant to run mutually
agreed upon search terms and produce relevant documents. Yet Defendant has yet to make any
document production pursuant to this Court’s June 20, 2016, Order.
B. Defendant’s Other Failures to Produce Documents
Defendant’s ignoring the July 11, 2016, court-ordered deadline to produce documents
pursuant to mutually agreed upon terms, and Defendant’s recalcitrance in searching for
documents related to Ms. Giuffre are not the only examples of Defendant’s failure to make
appropriate discovery. Defendant claims to have run a number of Ms. Giuffre’s search terms, yet
claims that such a search yielded no responsive documents, save the few added to Defendant’s
privilege log. Defendant did not provide any “hit” information to show which terms yielded
results, or how many results they yielded. Defendant claims to have reviewed over 10,000
6
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documents containing the search terms and remarkably states that none – not a single one of the
documents are responsive or relevant to the issues in this matter. Defendant’s representation is
simply implausible, as a review of Defendant’s interactions with several of the important players
in this case makes clear.
i. Ross Gow
The Court will recall that Ross Gow is Defendant’s London-based press agent, who
shares Defendant’s attorney, Philip Barden, and who was connected with Defendant’s statements
about Ms. Giuffre in both 2011 and 2015. Defendant admitted that she used Mr. Gow in 2011 in
relation to Ms. Giuffre’s claims:
Q. And then below there is an email from Philip Barden to you and cc'ing Ross Gow
on January 11, 2015. Do you see that?
-
A. Uh-huh.
Q. It says, Dear Ghislaine, as you know I have been working behind the scenes and
this article comes from that. It helps but doesn't answer the VR claims. I will get the
criminal allegations out. This shows the MOS will print truth, not just a VR voice
piece. We can only make the truth by making a statement. What did he mean when he
said, I will get the criminal allegations out, what was he referring to?
A. I have no idea.
Maxwell Dep. Tr. at 405:13-406:7 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Defendant has admitted that she again used Mr. Gow in 2015 to issue a statement relating
to Ms. Giuffre:
Q. This is an email from you on January 10, 2015 to Philip Barden and Ross Gow.
The statement you had before you earlier, that, if you can pull that in front of you, the
one page press release that you gave. You might know from memory. Was the press
release that you issued with the statement about Virginia issued in or around January
2, 2015?
A. As best as I can recollect.
Maxwell Dep. Tr. at 361:4-13 (April 22, 2016) (McCawley Decl. at Exhibit 2).
7
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Indeed, Defendant retained counsel to further assist Mr. Gow:
Q. Did you authorize Ross Gow to issue that statement on your behalf in January of
2015?
A. I already testified that that was done by my lawyers.
Maxwell Dep. Tr. at 273:6-10 (April 22, 2016) (McCawley Decl. at Exhibit 2).
In both years, 2011 and 2015, Defendant communicated with her counsel, communicated
with her public relations agent, and caused a statement regarding Ms. Giuffre to be released
publically, whereupon it was disseminated abroad. Yet, Defendant claims that she has no
communications related to Ms. Giuffre beyond the handful of communications this Court
ordered her to produce after the Court’s in camera review. (DE 73).
ii. Eva Dubin
Defendant also appears to be claiming that she had not had even a single communications
with Eva Dubin, Defendant’s long-time friend whose husband was implicated in sexual abuse by
Ms. Giuffre’s deposition testimony. Defendant admitted that she is friends with Eva Dubin and
admitted to visiting her home from time to time.
Q. Is Eva Dubin one of your friends?
A. Yes.
Maxwell Dep. Tr. at 57:22-23 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Q. You remember from time to time being at the Dubin residence, correct?
A. I do.
Maxwell Dep. Tr. at 163:6-8 (July 22, 2016) (McCawley Decl. at Exhibit 3).
The Dubins are closely connected to this case. Indeed, Rinaldo Rizzo, the Dubins’ butler,
was in tears as he recounted Defendant bringing a fifteen-year-old girl to Eva Dubin’s home.
The girl, in utmost distress, told Mr. Rizzo that Defendant had stolen her passport and tried to
make her have sex with Epstein on his private island, and then threatened her. Rizzo Dep. Tr. at
8
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 9 of 21
52:8-57:23 (June 10, 2016) (McCawley Decl. at Exhibit 4). Ms. Giuffre has also implicated Eva
Dubin’s husband, Glen Dubin, as someone who was involved in Defendant and Epstein’s sex
trafficking ring. And yet, Defendant would have the Court believe that Defendant and her friend
never communicated about Ms. Giuffre’s testimony. There are no emails; no text messages
-
produced.
iii.
:
Q. Do you remember speaking with a female by the name of ?
-
A. Yes.
Q. And is that -- did you learn from about ?
THE WITNESS: That's correct.
Q. And what did you understand interaction with Jeffrey Epstein to
be?
--
THE WITNESS:
s and were roommates. During that time,
- had met with
-
was allegedly dating Jeffrey Epstein at the time. And
went shopping with her at the Palm Beach Mall, where they purchased items from
and
Victoria's Secrets. After spending the day together, they went over to the Palm Beach
house, where Epstein requested to see what was purchased. She was a little reluctant
initially, but because of the fact that it was his money that purchased the items, she
showed the outfit that she had purchased at Victoria's Secrets. He had asked her to try
it on, at which time she did. She went back to the house at another time, where she
was going to meet with and Epstein. They went for a bike ride, but had a
9
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 10 of 21
massage, which Epstein walked in on while she was getting a massage. He asked her
to turn over, expose her breasts to him. I think he performed a chiropractic move on
her. And she was completely uncomfortable with the whole situation.
Recarey Dep. Tr. at 106:2-107:20 (June 21, 2016) (McCawley Decl. at Exhibit 5).
Indeed, one of the witnesses who gave testimony in this case,
Even Defendant has admitted involvement with her and Epstein:
Q. Does know Jeffrey Epstein?
A. Can you ask again, please?
Q. Does know Jeffrey Epstein?
A. What do you mean by know?
Q. Has she met her him before?
A. I can't recollect a time when -- I've seen with Jeffrey but --
~ - - - - - -- ~ - --
Q. You are not sure --
A. I know they know either other. I can't testify to a meeting between them.
Maxwell Dep. Tr. at 270:18-271:8 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Q. Why do you think that might know Jeffrey?
10
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 11 of 21
A. Because you know, I know Jeffrey.
Maxwell Dep. Tr. at 271:18-22 (April 22, 2016) (McCawley Decl. at Exhibit 2).
Yet, Maxwell now wants this court to believe that she has no responsive communications
with relevant to this case.
C. Defendant’s Failures to Search All Email Accounts
Perhaps part of the reason that Defendant has failed to produce responsive document is that
still refusing to collect data from all of her email accounts. In particular, Defendant has not
collected data from her account nor produced relevant documents from
her account. Both email accounts are listed as part of Defendant’s
contact information gathered by the police from Epstein’s home, and turned over to the Palm
Beach County State Attorney as part of the investigation and prosecution of Epstein:
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843).
i. The mindspring.com Account
As evidenced from the police collection above, , was an email
address Defendant used while she was with Epstein. Id. In her filing with this Court, Defendant
represented that this was merely a “spam” account “to use when registering for retail sales
notifications and the like,” and that it contains no relevant documents. Br. at pg. 8. Of course, if
she wasn’t using the or the , what email address
was Defendant using while she was with Epstein, and why hasn’t that account been disclosed
and searched? This Court should order Defendant to disclose all email accounts she has used
from 1999 to the present.
11
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 12 of 21
At any rate, both recent testimony in this case, and older testimony in a related case,
completely belies Defendant’s claim that her account was merely for
- c============-=-=-=-=-=iiiiiiiiiiiii
“spam.” Jeffrey Epstein’s house manager, Juan Alessi testified that
daily use by the Epstein household to send and receive messages, a household to which
was in
Defendant belonged:
Q. So when there would be a message from one of them while they were out of town,
they would call you, call you on the telephone?
A. I haven't spoken to Ghislaine in 12 years.
Q. Sorry. I'm talking about when you worked there and you would receive a message that
they were coming into town, would that be by way of telephone?
A. Telephone, and also, there was a system at the house, that it was MindSpring,
MindSpring I think it's called, that it was like a message system that would come from
the office.
Q. What is MindSpring?
A. It was a server. I think it was -- the office would have, like, a message system
between him, the houses, the employees, his friends. They would write a message on the
computer. There was no email at that time.
Q. Okay. So what computer would you use?
A. My computer in my office.
Q. And so was part of your daily routine to go to your computer and check to see if you
had MindSpring messages?
A. No. That was at the end of my stay. That was the very end of my stay. I didn't get
involved with that too much. But it was a message system that Jeffrey received every
two, three hours, with all the messages that would have to go to the office in New York,
and they will print it and send it faxed to the house, and I would hand it to him.
Q. Did it look like the message pads that we've been looking at?
A. No, no, nothing like that.
Q. Was it typed-out messages?
12
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 13 of 21
A. Yes, typed-out messages.
Q. Just explain one example of how it would work. Let's say that Ghislaine wanted to
send him a message on MindSpring. How would that work?
A. An example?
-
Q. Sure.
A. It got so ridiculous at the end of my stay, okay? That Mr. Epstein, instead of talking
to me that he wants a cup of coffee, he will call the office; the office would type it; they
would send it to me, Jeffrey wants a cup of coffee, or Jeffrey wants an orange juice out
by the pool.
Q. He would call the office in New York. They would then type it in MindSpring?
A. Send it to me.
Q. How would you know to check for it? How would you know to look for this
MindSpring?
A. Because I was in the office. I was there. I was there. And we have a signal when it
come on and says, Hey, you've got mail.
-
Q. Okay.
A. Every day. Every day it was new things put in. That's why I left, too.
Q. Do you know who set up the mind spring system?
A. It was a computer guy. It was a computer guy who worked only for
Jeffrey. Mark. Mark Lumber.
Q. Was he local to Palm Beach?
A. No. He was in New York. Everything was set up from New York. And Mark
Lumber, I remember he came to Palm Beach to set up the system at the house.
Alessi Dep. Tr. at 223:5-225:17. (June 1, 2016) (McCawley Decl. at Exhibit 7). Accordingly,
mindspring was a server set up for Jeffrey Epstein and his household to use to communicate to
one another, and was, in fact, used in this manner.
13
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 14 of 21
The sworn testimony of Janusz Banasiak, another of Epstein’s house managers, from the case
L.M. v. Jeffery Epstein and Sarah Kellen,1 gives a fuller representation of how Defendant, and
others in Epstein’s sex-trafficking ring, used their accounts on Epstein’s mindspring server:
Q. Okay. Were you aware that Mr. Epstein used a Citrix program to link various computers?
Did you know that?
A. Yeah. I use Citrix too in my computer for exchanging e-mails and get through Internet.
***
Q. That's not something that you were, you were privy to? You weren't, you weren't in the
loop of the sharing of information in the house in terms of the computers being connected
through any server?
A. I don't really know what, how, how to answer your question because Citrix is for the
whole organization to exchange e-mail between employees.
Q. All right. You used the term?
A. So, even my computer is connected to Citrix. I can receive mail and I can e-mail
information to employee within organization. But I don't know if you can see to each
computer what is going on on another computer.
***
Q. You have used the term organization, you can share within the organization. What do you
-- just so I can understand what you're calling the organization, what do you mean by that
word?
A. People employed by Jeffrey Epstein. There are a few groups of people, his office in New
York and I guess --
***
Q. Okay. The other people mentioned as co-conspirators are Sarah Kellen, Adriana Ross, and
Nadia Marcinkova. So we'll get to them in a minute but first just so we stay on the track of
who was in the organization, is Sarah Kellen, Adriana Ross and Nadia Marcinkova all people
that you would also consider within the organization?
-
A. Yes.
Q. Okay. So, we just added three more names to it. Who else would you consider,
Ghislaine Maxwell?
1
Case No.: 502008CA28051XXXXMB AB, In the Circuit Court of the Fifteenth Judicial Circuit
in and for Palm Beach County, Florida.
14
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 15 of 21
- A. Yes.
56:13-17; 5:2-14; 58:1-7; 60:21-61:7 (February 16, 2010) (Emphasis added) (McCawley Decl. at
-
Exhibit 8).
Defendant’s email account was part of Epstein’s
account through which he communicated with his employees and other members of his
household, including his co-conspirators Sarah Kellen, Nadia Marcinkova, and the Defendant.
This email account likely has (or had) myriad of communications between and among Defendant
and Jeffrey Epstein, Defendant and Sarah Kellen, Defendant and Nadia Marcinkova, and others.
This email account is the one most likely to have the most relevant documents in this case, as it
was used by Jeffrey Epstein and his sex trafficking organization. The fact that this account - an
account created for the sole purpose of enabling Defendant and others to communicate with
Jeffrey Epstein - has no communications with Epstein or the other co-conspirators, is extremely
strong indicia that someone destroyed those email communications. Their destruction warrants
an adverse inference instruction. And, at the very least, the Court should direct Defendant to
retrieve her data from the Citrix server or any other applicable server upon which the
mindspring.com account was hosted.
ii. The Account
The account bears Defendant’s initials, and, again, listed as part of
her contact information gathered by the police from Epstein’s home, and turned over to the Palm
Beach County State Attorney as part of the investigation and prosecution of Epstein:
M Gh laine axweU
15
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 16 of 21
See (DE 280-2), Palm Beach County State Attorney’s Office, Public Records Request No.: 16-
268, Disc 7 at p. 2305 (GIUFFRE007843)
Because of Defendant’s refusal to search this important email account, any production
yielded from any search terms will necessarily be incomplete. Indeed, this failure is particularly
prejudicial, as this account appears to be the one she used while she was with Epstein, and
therefore, the one she used during the time period Defendant was abusing Ms. Giuffre.
Defendant does not appear to have pursued access to this account very far. This inaction
lies in stark contrast to Ms. Giuffre’s efforts to recover data. Ms. Giuffre has sent executed
releases to Microsoft for her inaccessible account, and even issued a Rule 45 Subpoena to
Microsoft for the production of her account data. See McCawley Decl. at Exhibit 9, Microsoft
Subpoena. At a minimum, the Court should direct the Defendant to take these steps to access the
earthlink.net email account.
D. An Adverse Inference Instruction is Appropriate.
In light of this clear and persistent pattern of recalcitrance, the Court should instruct the
jury that it can draw an adverse inference that the Defendant has concealed relevant evidence.
Defendant has yet to provide responsive information. And even if Defendant were, at this late
date, to run Ms. Giuffre’s proposed search terms over her data (which has not yet been
collected), such a production would be both untimely and prejudicial. Fact discovery has closed.
Numerous depositions have already been taken by Ms. Giuffre without the benefit of these
documents. The window for authenticating the documents through depositions has shut. Expert
reports are due at the end of the month, and Ms. Giuffre’s experts do not have the benefit of
reviewing these documents. Late production of information robs Ms. Giuffre of any practical
ability to use the discovery.
16
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 17 of 21
The Second Circuit has stated, “[w]here documents, witnesses, or information of any
kind relevant issues in litigation is or was within the exclusive or primary control of a party and
is not provided, an adverse inference can be drawn against the withholding party. Such adverse
inferences are appropriate as a consequence for failure to make discovery.” Bouzo v. Citibank,
N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendant’s
continued systemic foot-dragging and obstructionism – even following the Court’s June 20 order
– makes an adverse inference instruction with regard to Defendant’s documents appropriate. An
adverse inference instruction is appropriate when a party refuses to turn over documents in
defiance of a Court Order. See Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005
WL 1026461, at *1 (S.D.N.Y. May 2, 2005) (denying application to set aside Magistrate Judge
Peck’s order entering an adverse inference instruction against defendant for failure to produce
documents that the Judge Peck had ordered Defendant to produce). Accordingly, because a
“party’s failure to produce evidence within its control creates a presumption that evidence would
be unfavorable to that party” an adverse inference should be applied with respect to Defendant’s
failure to produce “in order to ensure fair hearing for [the] other party seeking evidence.” Doe v.
U.S. Civil Service Commission, 483 F. Supp. 539, 580 (S.D. N.Y., 1980) (citing International
Union v. NLRB, 148 U.S. App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41 (D.C.Cir.1972)).
“An adverse inference serves the remedial purpose of restoring the prejudiced party to the
same position he would have been in absent the wrongful destruction of [or willful refusal to
produce] evidence by the opposing party.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 222
(S.D.N.Y. 2013) (granting an adverse inference when defendants refused to produce documents
pursuant to the District Court’s order). Where “an adverse inference ... is sought on the basis that
the evidence was not produced in time for use at trial, the party seeking the instruction must
17
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 18 of 21
show (1) that the party having control over the evidence had an obligation to timely produce it;
(2) that the party that failed to timely produce the evidence had ‘a culpable state of mind’; and
(3) that the missing evidence is ‘relevant’ to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.” Id. (citing Residential
Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
Furthermore, as discussed in detail in Ms. Giuffre’s Motion for an Adverse Inference
Instruction (DE 315), an adverse inference is appropriate regarding the documents that
Defendant is withholding under the Second Circuit’s test set forth in Residential Funding.
Defendant has admitted to deleting emails as this Court noted in its Order. Defendant has not
collected what data remains from at least half of her email accounts. An adverse inference is
equally appropriate if the non-compliance was due to Defendant’s destruction of evidence. See
Brown v. Coleman, 2009 WL 2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (“Where a party violates a
court order—either by destroying evidence when directed to preserve it or by failing to produce
information because relevant data has been destroyed—Rule 37(b) of the Federal Rules of Civil
Procedure provides that the court may impose a range of sanctions, including dismissal or
judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment
of attorneys' fees and costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp. v. DeGeorge
Financial Corp., 306 F.3d 99, 106–07 (2d Cir.2002)”). See also Essenter v. Cumberland Farms,
Inc., 2011 WL 124505, at *7 (N.D.N.Y. Jan. 14, 2011); and Rule 37(e), Fed. R. Civ. P. (“If
electronically stored information that should have been preserved in the anticipation or conduct
of litigation is lost because a party failed to take reasonable steps to preserve it . . . the court: (2)
only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation may: (A) presume that the lost information was unfavorable to
18
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 19 of 21
the party; (b) instruct the jury that it may or must presume the information was unfavorable to
the party; or (C) dismiss the action or enter a default judgment.”).
The Court may also wish to consider the possibility of a having a neutral, third-party
expert review Defendant’s production. In her filing with the Court on Monday, August 1, 2016,
Defendant represented that she ran hundreds of search terms - including the names of people
involved in the sex trafficking ring with whom she still associates in the present - and got zero
“hits” for any of them. That is strong indicia that Defendant intentionally deleted documents.
This strongly suggests that relevant documents either lie in the two email accounts that were not
searched or Defendant has deleted these communications. Defendant does not state that the
individual who examined Defendant’s devices attempted to recover Defendant’s deleted email
and other documents, or attempted to identify if and when a hard drive was wiped.
In these circumstances, the Court should allow an independent forensic expert review the
computer and all her email accounts to determine whether responsive materials exists and have
either not been produced or have been deleted. The Court could then use that information in
determining whether an adverse inference is appropriate.
III. CONCLUSION
For the reasons set forth above, Ms. Giuffre respectfully request that this Court grant her
motion for an adverse inference jury instruction pursuant to Rule 27(b), (e), and (f), with respect
to the electronic documents and electronic communications that this Court Ordered her to
produce, allow a forensic review of her computer to evaluate whether material was intentionally
deleted; and direct Defendant to recover any remaining mindspring.com data from the applicable
-
server.
Dated: August 8, 2016
19
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 20 of 21
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52022
2
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
20
Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 21 of 21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 8th day of August, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
21
giuffre-maxwell
Unknown
10 pages
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 1 of 10
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
______________________________/
PLAINTIFF VIRGINIA GIUFFRE’S REDACTED REPLY IN SUPPORT OF
MOTION FOR FORENSIC EXAMINATION
BOIES, SCHILLER & FLEXNER LLP
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 2 of 10
Plaintiff Virginia L. Giuffre, by and through her undersigned counsel, respectfully
submits this this Reply Motion In Support of Plaintiff’s Motion for Forensic Examination, and in
support thereof, states as follows.
I. INTRODUCTION
Fed. R. Civ. P. 26(f)(3)(C) requires parties to have a plan for the “disclosure, discovery or
preservation of electronically stored information, including the form or forms in which it should
be produced.” Pursuant to that Rule, parties have an obligation to be transparent about their
electronically stored information (ESI) preservation, collection, and production procedures, and
an obligation to attempt to mutually agree to such procedures. See Stinson v. City of New York,
No. 10 CIV. 4228 RWS, 2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.) (ordering
that “the parties shall meet and confer in order to set a[n electronic] search protocol”). A case
need not be designated “complex” for Fed. R. Civ. P. 26(f)(3)(C) to apply. To the contrary, Fed.
R. Civ. P. 26(f)(3)(C) applies with equal force to all federal civil cases, regardless of the subject
matter.
In addition to the requirements stated plainly in Fed. R. Civ. P. 26, and in addition to case
law from the this Court and others courts within the Southern District of New York, various
other instructive authorities emphasize the need for disclosure and agreement concerning ESI
preservation, collection, and production protocols among the parties. For example, the Sedona
Principles for Electronic Document Production, Second Edition, 2007, at page ii states: “Parties
should confer early in discovery regarding the preservation and production of electronically
stored information . . . and seek to agree on the scope of each party’s rights and responsibilities.”
Similarly, Standing Order M10-468, In re: Pilot Project Regarding Case Management
Techniques for Complex Civil Cases in the Southern District of New York, requires a Joint E-
1
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 3 of 10
Discovery Submission, requiring the parties to address, their (1) preservation obligations, (2)
search and review protocols, and (3) sources of ESI production. Under this model order, the
parties are required to discuss methods for search and review, including potential keyword
searches, date restrictions, and search backup files.
In short, a party’s responsibility to be forthcoming to reach agreed protocols concerning
ESI preservation, collection, and production is written into Rule 26, see Fed. R. Civ. P.
26(f)(3)(C), and it is echoed again through case law, treatises, conferences, and this District’s
Standing Order. Therefore, when Defendant refuses to confer about ESI protocols when asked
by Ms. Giuffre1, and instead states, “[w]e do not believe we have an obligation to describe for
your [sic] our document search methods,” it is prima facie evidence that Defendant is not
fulfilling her responsibilities under Fed. R. Civ. P. 26. See McCawley Decl. at Exhibit 1, April
11, 2016, Letter from Laura Menninger, counsel for Defendant.
Defendant’s refusal to disclose her ESI preservation and collection methods, coupled
with an insufficient production as described in the moving brief,2 constitutes good cause for a
forensic examination. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443, 449
(D. Conn. 2010) (“grant[ing] the Plaintiff's motion to compel forensic imaging to be performed
1
Ms. Giuffre, pursuant to this Court’s direction, served Defendant with a detailed agenda for a
meet and confer call on the topic of Defendant’s electronic discovery. See McCawley Decl. at
Exhibit 5, Correspondence from Sigrid McCawley. In addition, Ms. Giuffre also sent Defendant
a detailed ESI Protocol on March 10, 2016, which was rejected by the Defendant. See
McCawley Decl. at Exhibit 6.
2
It is notable that, prior to Ms. Giuffre filing the instant motion, Defendant had produced a mere
two documents in response to Ms. Giuffre’s First Request for Production. Now, Defendant’s
counsel states that Defendant “recently produced over 700 pages of documents,” yet, the bulk of
those pages
Even if counting such marginally responsive,
“filler” pages, Defendant’s production is still inadequate. For example,
and Defendant has stated she had a
practice of regularly deleting e-mails. Ms. Giuffre is entitled to seek and retrieve that electronic
data.
2
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 4 of 10
by a neutral court-appointed expert” under a confidentiality agreement). Such an examination is
particularly important because Ms. Maxwell has stated in her discovery responses that she has a
practice of deleting her e-mails. A forensic review is necessary to try to pull the deleted
materials that are relevant to this action. Accordingly, a forensic examination of Defendant’s
computers and email, conducted by a neutral expert agreed upon by the parties (or ordered by the
Court), is warranted.
II. ARGUMENT
A. Defendant Has Repeatedly Refused to Confer Regarding Their Document
Collection Process
After an unequivocal and flat refusal to discuss her ESI protocols (“ [w]e do not believe
we have an obligation to describe for your [sic] our document search methods”), Defendant now
acknowledges in her Response brief some willingness to do so.3 Yet, still, she has neither
disclosed to Ms. Giuffre what preservation, collection, and production methods she employed,
nor what methods she plans to employ regarding Ms. Giuffre’s Second Request for Production.
There have been no disclosures made whatsoever.
As detailed in the instant motion, Plaintiff’s counsel have expended considerable sums of
money and considerable time to ensure Ms. Giuffre’s compliance with her discovery obligations.
(DE 96 at 7.) Fact discovery closes in less than two months, and Defendant has yet to disclose
information about what was done to collect Defendant’s documents, stating only that her search
terms were “appropriately broad, but tailored.” Significantly, it appears that Defendant has
3
It should not have taken this motion practice for Defense counsel to acknowledge their
obligations under the Federal Rules of Civil Procedure. Regardless of Defendant’s refusal to
engage in ESI protocol discussions or agreements, Ms. Giuffre’ counsel employed a robust
collection, search, and review methodology, as detailed in her moving brief (DE 96). That said,
given that Defendant now seems willing to discuss her collection procedures, Ms. Giuffre will
make an additional attempt to confer with her before re-scheduling the hearing on this Motion, in
an effort to avoid any waste of judicial resources if the parties are able to narrow the issue for the
Court.
3
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 5 of 10
failed to produce all documents as directed by the Court in its Clarification Order and Ms.
Giuffre’s Second Request for Production of Documents is still outstanding. Ms. Giuffre’s
counsel is entitled to know what, if any, efforts are being employed by Defendant to comply with
discovery obligations.
Ms. Giuffre should not be required to rely on vague representations, in contravention of
the requirements under Fed. R. Civ. P. 26, particularly after she has disclosed her robust
preservation, collection, and production methods - methods that courts have found to be the best
practice to ensure compliance with Fed. R. Civ. P. 26. (DE 96 at 7-8, describing the protocol Ms.
Giuffre’s employed for her ESI.)
Even more troubling, Defendant admitted at her deposition that
.
See McCawley Decl. at Exhibit 7,
For example, this Court ordered Defendant to produce documents from 1999 - present.
See McCawley Decl. at Exhibit
8,
4
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 6 of 10
See McCawley Decl. at Exhibit 2, Message Pads.
Yet, remarkably, Defendant produced not a single email to or from Ms. Dubin, despite Ms.
Giuffre’s request for all documents relating to communications with her.
To fulfill her requirements under Fed. R. Civ. P. 26, Defendant would have needed to
employ the basic and commonly-employed steps of imaging her computer, collecting her email,
and running search terms over the ESI to find responsive documents. In other words, she should
have employed the same ESI procedures that Ms. Giuffre employed - a procedure endorsed by
the case law, by the Southern District of New York,4 the Sedona Conference,5 by e-discovery
treatises,6 and by common practice. See Stinson v. City of New York, No. 10 CIV. 4228 RWS,
2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.).
Since the Defendant still refuses to provide transparency into her document collection
efforts as of filing this Reply brief, a forensic examination of Defendant’s electronic data,
conducted by a neutral expert, is appropriate to ensure that she is not wrongfully withholding
discoverable material.
B. A Forensic Examination is Warranted To Determine Whether Defendant
Has Deleted or Withheld Responsive Communications
Defendant has admitted that she regularly deletes documents. See McCawley Decl. at
Exhibit 3, Defendant’s Responses and Objections at ¶ 16. Although Defendant suggests that she
stopped deleting emails once this litigation commenced, (see Def's Br. at 4), this representation is
4
M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil
Cases in the Southern District of New York
5
See the Sedona Principles for Electronic Document Production, Second Edition, 2007, at ii.
6
See, e.g., Handbk. Fed. Civ. Disc. & Disclosure § 13:5 (3d ed.).
5
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 7 of 10
insufficient to ensure that Defendant has complied with her obligations in this case for several
reasons.
First, Defendant was obligated to retain her electronic data when litigation was
reasonably anticipated. Defendant claims that she contemplated filing a lawsuit in 2011.
Accordingly, at a minimum, she should have been retaining her electronic data from that date
forward. Yet, Defendant admits that she was deleting emails after that point and up until this
litigation began. Additionally,
A forensic expert could possibly recover Defendant’s “deleted” e-mail and
could possibly identify when Defendant’s hard drive was wiped. Recovery of deleted material is
critical in this case because Defendant has admitted to a deletion practice.
Second, Defendant’s continued secrecy – she still has not disclosed to Ms. Giuffre her
preservation, collection, or production procedures – demonstrates the necessity of a forensic
review. Defendant’s continued refusal to disclose her methods, coupled with an insufficient
production as described above, constitutes good cause for a forensic examination conducted by a
neutral expert. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443, 449 (D.
Conn. 2010) (“grant[ing] the Plaintiff's motion to compel forensic imaging to be performed by a
neutral court-appointed expert” under a confidentiality agreement). Such an examination is
particularly important because Ms. Giuffre has outstanding document requests that were issued
in her Second Request for Production.
Finally, the forensic examination would be performed at a time and in a manner that
created no disruption for Defendant, so Defendant has no significant countervailing interests to
6
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 8 of 10
weigh against Ms. Giuffre’s compelling need for the information. Accordingly, a forensic
review of Defendant’s computers and email is warranted.
C. In the Alternative, Ms. Giuffre is Entitled to a Court Order Compelling
Defendant to Implement a Transparent and Reasonable Document
Collection Protocol that Includes the Imaging of Defendant’s Computer, the
Collection of her Email, and the Application of Robust, Mutually-Agreed
Upon Search Terms
Defendant has had multiple opportunities to negotiate a document production protocol or
describe her document collection efforts on her own accord or when asked by Ms. Giuffre. Thus
far, she has refused to do either. Defendant’s reliance on her March 14, 2016 Correspondence, as
evidence of her willingness to discuss her document collection efforts is disingenuous given that
her counsel: (1) flatly refused to discuss them when asked in a meet and confer, (2) stated that
any discussion of their collection procedures inappropriate, and (3) wrote that “[w]e do not
believe we have an obligation to describe for your [sic] our document search methods.” See
McCawley Decl. at Exhibit 1, April 11, 2016, Letter from Laura Menninger, counsel for
Defendant.
Accordingly, if the Court determines that a forensic examination is not warranted at this
stage, Ms. Giuffre respectfully requests that the Court direct the Defendant to (1) image her
computers , (2) collect her
email, (3) run robust, search terms provided by Ms. Giuffre (applicable to both Ms. Giuffre’s
First and Second Request for Production) over that collected ESI to identify documents
responsive to Ms. Giuffre’s Requests for Production, and (4) produce responsive documents to
Ms. Giuffre by May 16, 2016 (the day documents responsive to Ms. Giuffre’s Second Request
for Production are due under Fed. R. Civ. P. 34). Such a process would, at last, fulfill
Defendant’s requirements under the Federal Rules of Civil Procedure, be in accord with case law
and other authorities, and be in parity with Ms. Giuffre’s ESI protocol.
7
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 9 of 10
CONCLUSION
For the reasons set forth above and in Plaintiff’s Motion for Forensic Examination, Ms.
Giuffre requests that the Court order: (1) a neutral expert to conduct a forensic exam upon
Defendant’s computers and email prior to May 16, 2016, or, (2) in the alternative, order that
Defendant:
(a) image her computers;
(b) collect her email and text messages,
(c) run robust, mutually agreed-upon search terms (applicable for both Ms. Giuffre’s First
and Second Request for Production) over that collected ESI, and
(d) produce responsive documents to Ms. Giuffre by May 16, 2016.
Dated: April 25, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
8
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 10 of 10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 25, 2016, I electronically filed the foregoing
document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing
document is being served this day on the individuals identified below via transmission of Notices
of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey S. Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
Email: [email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
9
giuffre-maxwell
Unknown
26 pages
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 1 of 26
EXHIBITD
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 2 of 26
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
V.
Ghislaine Maxwell,
Defendant.
- - - - - - - - - - - - - -I
PLAINTIFF, VIRGINIA GIUFFRE'S FOURTH REVISED DISCLOSURE
PURSUANT TO FED. R. CIV. P. 26
COMES NOW the Plaintiff, Virginia L. Giuffre, by and through her undersigned counsel,
and serves this revised disclosure pursuant to Fed. R. Civ. P. 26 and states as follows:
A. Witnesses:
1. Virginia L. Giuffre
c/o Sigrid S. Mccawley, Esq.
Boies, Schiller & Flexner LLP
401 East Las Olas Boulevard, Suite 1200
Miami, Florida 33301
Tel: (954) 356-0011
Email: [email protected]
Plaintiff - information regarding Defendant, Ghislaine Maxwell's conduct that is
the subject of this action
2. Ghislaine Maxwell
c/o Laura A. Menninger, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Email: [email protected]
Defendant in this action.
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 3 of 26
3. Juan Alessi
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
4. Maria Alessi
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
5. Kathy Alexander
Address unknown at this time.
Telephone number unknown at this time.
Believed to be in South Africa.
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
6. Miles Alexander
Address unknown at this time.
Telephone number unknown at this time.
Believed to be in South Africa.
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
7. Doug Band
President of Teneo Holdings, 601 Lexington Avenue, 45 th Floor,
New York, NY 10022, Tel: (212) 886-1600
Was present on flights with Jeffrey Epstein and Ghislaine Maxwell and President
Clinton and may have knowledge of Jeffrey Epstein and Ghislaine Maxwell's sexual trafficking
conduct and interactions with minors.
8. Gwendolyn Beck
2
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 4 of 26
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
9. Sophie Biddle
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
10.
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and Virginia
Guiffre and may have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
11. Fary Bjorlin
Address Unknown
Telephone Number Uknown
May have information relating to Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
12. Kelly Bovino
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
13. Jean Luc Brunel
c/o Joe Titone, Esq.
621 South East 5th Street, Pompano Beach, FL 33060
Tel: (954) 729-6490
3
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 5 of 26
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and Virginia
Guiffre and has information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
14. Ron Burkle
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
15. -
Address unknown at this time.
Telephone number unknown at this time
Worked for Ghislaine Maxwell and has information about Ghislaine Maxwell's
recruiting of girls for Jeffrey Epstein.
16. Carolyn Casey
Address unknown at this time.
Telephone number unknown at this time.
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
17. Alyson Chambers
c/o Marshall Dore Louis, Esq.
Sinclair, Louis & Zavertnik, P.A.
40 N.W. 3rd Street, Suite 200, Miami, FL 33128
Tel: (305) 374-0544
Worked for Jeffrey Epstein as a masseuse during the time that Virginia Giuffre was
living and traveling with Jeffrey Epstein and Ghislaine Maxwell, and has information about
Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct.
18. William Jefferson Clinton
55 West 125 Street
New York, NY 10027
Travelled with Jeffrey Epstein and Ghislaine Maxwell and may have information
about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct.
4
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 6 of 26
19. Maximilia Cordero
Address unknown at this time
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct.
20. Valdson Cotrin
Address unknown at this time
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct.
21. Chauntae Davies
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and may have
information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct and
interaction with underage minors.
22. Teala Davies
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and may have
information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct and
interaction with underage minors.
23. Anouska DeGeorgieou
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
24. Alan Dershowitz
c/o Richard A. Simpson, Esq.
WILEY REIN, LLP
1776 K Street NW
Washington, D.C. 20006
5
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 7 of 26
Tel: (202) 719-7000
Has knowledge of Defendant's conduct that is the subject of this action.
25. Ryan Dionne
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
26. Eva Anderson Dubin
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and has
information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct and
interaction with underage minors.
27. Glen Dubin
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and has
information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct and
interaction with underage minors.
28.
Address unknown at this time.
Telephone number unknown at this time.
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
29. Prince Andrew Albert Christian Edward, Duke of York
Buckingham Palace Rd, London SWlA lAA
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors, including Virginia Giuffre.
6
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 8 of 26
30. Records Custodian for Travel for Prince Andrew Albert Christian Edward, Duke of
York
Buckingham Palace Rd, London SWlA lAA
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors, including Virginia Giuffre.
31. Jeffrey Epstein
c/o Marty Weinberg, Esq.
20 Park Plaza, Suite 1000, Boston, MA 02116
Has knowledge of Defendant's conduct that is the subject of this action and
knowledge of his sexual trafficking operation and other co-conspirators.
32. Tatiana Espinoza
Address unknown at this time
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
33. Annie Farmer
Address unknown at this time.
Telephone number unknown at this time.
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors, including Virginia Giuffre.
34. Marie Farmer
Address unknown at this time.
Telephone number unknown at this time.
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors, including Virginia Giuffre.
35. Vicky Ward
Address unknown at this time
Telephone unknown at this time
7
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 9 of 26
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors, including Virginia Giuffre.
36. Frederic Fekkai
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Defendant's conduct that is the subject of this action.
37. Tony Figueroa
Telephone number unknown at this time
Has knowledge of Defendant's conduct that is the subject of this action.
38. Luciano "Jojo" Fontanilla
Jeffrey Epstein's staff member in his various homes and may have knowledge of
Defendant and Jeffrey Epstein's inappropriate conduct with underage girls.
39. Lynn Fontanilla
Telephone number unknown at this time
May have knowledge of Defendant's conduct that is the subject of this action.
40. Michael Friedman
Telephone number unknown at this time
Former house staff and may have knowledge of Ghislaine Maxwell and Jeffrey
Epstein's sexual trafficking conduct and interaction with minors.
41. Rosalie Friedman
Telephone number unknown at this time
8
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 10 of 26
Former house staff and may have knowledge of Ghislaine Maxwell and Jeffrey
Epstein's sexual trafficking conduct and interaction with minors.
42. Ross Gow
Acuity Representation
23 Berkeley Square
London WU 6HE
Defendant's press agent who has knowledge of the defamatory statements in this
case.
43. Tiffany Kathryn Gramza
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors
44. -
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
45. Amanda Grant
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
46. Lesley Groff
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
47.
9
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 11 of 26
Has information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and abuse and interaction with underage minors.
48. Claire Hazel
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
49. Shelly Harrison
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
50. Gina Ignatieva
Address Unknown
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
51. Brett Jaffe
Address noted on Defendant's Rule 26 disclosures
Defendant's attorney.
52.
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
10
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 12 of 26
53. Sarah Kensington Vickers formerly Sarah Kellen
c/o Bruce Reinhart, Esq.
McDonald Hopkins LLC
505 S Flagler Dr Ste 300
West Palm Beach, FL 33401-5942
Tel: 561- 472-2121
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interactions with minors.
54. Tatiana Kovylina
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
55.
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
56. Adam Perry Lang
Address unknown at this time
Telephone number unknown at this time
Traveling chef for Jeffrey Epstein and Ghislaine Maxwell and may have knowledge
of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking conduct and interaction with
underage minors.
57.
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
58. Michael Liffman
11
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 13 of 26
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
59. Peter Listerman
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
60. Cindy Lopez
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
61. Melinda Lutz
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
62. Cheri Lynch
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
63. Nadia Marcinko formerly Nadia Marcinkova
c/o Jack Goldberger, Esq.
Atterbury, Goldberger, & Weiss, P.A.
250 Australian Ave South, Ste 1400
West Palm Beach, FL 33401-5012
Tel: (561) 659-8300
12
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 14 of 26
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
64. Bob Meister
May have information about Ghislaine Maxwell and Jeffrey Epstein's sexual
trafficking conduct and interaction with underage minors.
65. Todd Meister
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors
66. Brahakmana Mellawa
Address unknown at this time
Telephone number unknown at this time
House staff who may have know ledge of Ghislaine Maxwell and Jeffrey Epstein's
sexual trafficking conduct and interaction with underage minors.
67. Jayarukshi Mellawa
Address unknown at this time
Telephone number unknown at this time
House staff who may have know ledge of Ghislaine Maxwell and Jeffrey Epstein's
sexual trafficking conduct and interaction with underage minors.
68.
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
69. Andrea Mitrovich
Address Unknown
Telephone number unknown at this time.
13
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 15 of 26
Knowledge of Defendant's conduct that is the subject of this action.
70. Bill Peadon
Telephone number unknown at this time
House staff that may have knowledge of Ghislaine Maxwell and Jeffrey Epstein's
sexual trafficking conduct and interaction with underage minors.
71. Francis Peadon
Telephone number unknown at this time
House staff that may have knowledge of Ghislaine Maxwell and Jeffrey Epstein's
sexual trafficking conduct and interaction with underage minors.
72. Tom Pritzker
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
73. Dara Preece
Address Unknown
Telephone Unknown at this time
May have knowledge of Defendant's conduct in this action.
74. Louella Rabuyo
Address unknown at this time
Telephone unknown at this time
House staff that may have knowledge of Ghislaine Maxwell and Jeffrey Epstein's
sexual trafficking conduct and interaction with underage minors.
75. Joseph Recarey
Telephone number unknown at this time.
14
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 16 of 26
Detective Recarey was the chief investigator of the crimes committed at Jeffrey
Epstein's Palm Beach mansion and has information about Ghislaine Maxwell and Jeffrey
Epstein's sexual trafficking conduct and interaction with underage minors.
76. Chief Michael Reiter
Telephone number unknown at this time.
Police Chief Reiter oversaw the investigation of the crimes committed at Jeffrey
Epstein's Palm Beach mansion and has information about Ghislaine Maxwell and Jeffrey
Epstein's sexual trafficking conduct and abuse of underage minors.
77. Bill Richardson
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
78. Rinaldo Rizzo
c/o Robert Lewis, Esq.
Freeman Lewis LLP
228 E. 45 th Street, 1ih Floor
New York, NY 10017
Tel: 212-980-4084
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
79. Haley Robson
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
80. Sky Roberts
15
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 17 of 26
Family member who may have knowledge of Ghislaine Maxwell and Jeffrey
Epstein's sexual trafficking conduct and interaction with underage minors.
81. David Rodgers
c/o Bruce E. Reinhart, Esq.
McDonald Hopkins LLC
505 S Flagler Dr Ste 300
West Palm Beach, FL 33401-5942
Tel: 561- 472-2121
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
82. Adriana Ross formerly Adriana Mucinska
c/o Alan S. Ross, Esq.
Tel: (305) 858-9550
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
83. Johanna Sjoberg
c/o Marshall Dore Louis, Esq.
40 N.W. 3rd Street, Suite 200, Miami, FL 33128
Tel: (305) 374-0544
Worked for Jeffrey Epstein during the time when Virginia Giuffre was living and
traveling with Jeffrey Epstein and Ghislaine Maxwell. Johanna Sjobjerg was also present at an
occasion with Prince Andrew, Ghislaine Maxwell, and Virginia Giuffre when Ms. Giuffre was a
mmor.
84. Kelly Spamm
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
85. Cecilia Stein
Address unknown at this time
Telephone number unknown at this time
16
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 18 of 26
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
86. Emmy Taylor
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
87. Evelyn Valenzuela
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct.
88. Larry Visosky
c/o Bruce E. Reinhart, Esq.
Tel: (561) 202-6360
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
89. Leslie Wexner
c/o John W. Zeiger, Esq., Zeiger, Tigges & Little LLP
41 South High Street, Suite 3500, Columbus, Ohio 43215
Tel: (614) 365-9900
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
90. Courtney Wild
c/o Bradley Edwards, Esq.
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
Tel: (954) 524-2820
17
CONFIDENTIAL as to victims' identity
pursuant to Court's June 23, 2016 Order
Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 19 of 26
Has information about Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
91. Doug Wilson
Family member who may have knowledge of Ghislaine Maxwell and Jeffrey
Epstein's sexual trafficking conduct and interaction with underage minors.
92. Igor Zinoview
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein's sexual trafficking
conduct and interaction with underage minors.
93. All females identified in the police reports or identified through the United State's
Attorney's office during or through the criminal investigation of Jeffrey Epstein
and his co-conspirators.
94. All other then-minor girls, recruited by Ghislaine Maxwell, whose identities Ms.
Giuffre will attempt to determine, with whom Defendant, Ghislaine Maxwell and Jeffrey Epstein,
have engaged in sexual activity.
95. All pilots, chauffeurs, chefs, and other employees of either Defendant Maxwell or
Jeffrey Epstein with knowledge of Defendant and Jeffrey Epstein's inappropriate
conduct with underage girls.
96. All staff and employees at the Mar-a-Lago Club during 1999-2002.
97. All other witnesses learned through discovery process.
B. Relevant Documents:
1. All files held by the Palm Beach Police Department or the Palm Beach State
Attorney's office which are publically available.
2. All press releases of Ghislaine Maxwell or on her behalf
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3. The video(s) of Ghislaine Maxwell adopting the January, 2015 press statement.
4. All newspaper or other media where Ghislaine Maxwell's press release appears
5. All evidence obtained by the Federal Bureau of Investigations which relate in any way
to Jeffrey Epstein or Ghislaine Maxwell.
6. All 302 statements that relate in any way to Jeffrey Epstein or Ghislaine Maxwell.
7. All evidence obtained by the FBI or United States Attorney's office by or through the
criminal investigation of Alfredo Rodriguez.
8. All documents relating to the previous subpoenas served on Defendant for her
deposition and all documents related in any way to that deposition.
9. All documents evidencing visitors or passengers at any of Jeffrey Epstein owned or
controlled property or aircraft.
10. All documents demonstrating the relationship between Bill Clinton and Jeffrey Epstein
or Ghislaine Maxwell.
11. All photos of Ghislaine Maxwell at Chelsea Clinton's wedding.
12. All documents or information refuting statements made by Ghislaine Maxwell.
13. All documents and information relating to Prince Andrews travel, including travel to
New York City and the Caribbean, in 1999 to 2002.
14. All documents and information from Shopper's Travel evidencing travel, flight records
or passenger manifests during the relevant period.
15. All documents and information from David Rigg, Aviation Insurance Agent evidencing
travel, flight records or passenger manifests during the relevant period.
C. Exhibits:
1. Palm Beach Police Department report and documents contained within Jeffrey
Epstein's criminal files, attached hereto as Exhibit 1.
2. March 10, 2011 Statement on behalf of Ghislaine Maxwell by Media agent Ross
Gow, attached hereto as Exhibit 2.
3. September 3, 2008 Victim Notification Letter, attached hereto as Exhibit 3.
4. May 1, 2009 Complaint in Jane Doe No. 102 v. Jeffrey Epstein, CIV-09-80656, in
the Southern District of Florida, attached hereto as Exhibit 4.
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5. FBI 302 Statement, attached hereto as Exhibit 5.
6. Flight Logs, attached hereto as Composite Exhibit 6.
7. Message Pads from Law Enforcement from trash pull of Jeffrey Epstein's Palm
Beach home, attached hereto as Exhibit 7.
8. Jeffrey Epstein's Phone Book, also referred to as his "Black Book," attached hereto
as Exhibit 8.
9. Deposition of Sarah Kellen, attached hereto as Composite Exhibit 9.
10. Deposition Transcripts of Juan Alessi, attached hereto as Exhibit 10.
11. Deposition Transcripts of Alfredo Rodriguez, attached hereto as Exhibit 11.
12. January 2, 2015 Corrected Joinder Motion [DE 280] filed in the CVRA action
pending in the Southern District of Florida, attached hereto as Exhibit 12. [All
paragraphs between "The Government then concealed from Jane Doe No. 3
the existence of the NPA (pg. 3) and "The Government was well aware of Jane
Doe No. 3 when it was negotiating the NPA" (pg. 6) were stricken by Judge
Marra.]
13. January 21, 2015 Declaration of Jane Doe No. 3 filed in the CVRA action pending
in the Southern District of Florida, attached hereto as Exhibit 13. [Paragraphs 4, 5,
7, 11, 13, 15, 19-53, and 59 were stricken by Judge Marra]
14. February 6, 2015 Declaration of Jane Doe No. 3 filed in the CVRA action pending
in the Southern District of Florida, attached hereto as Exhibit 14. [Paragraphs 7-
12, 16, 39 and 49 were stricken by Judge Marra.]
15. November 25, 2015 Affidavit of Virginia Giuffre, filed in the Bradley Edwards and
Paul Cassell v. Alan Dershowitz matter, pending in the Seventeenth Judicial
Circuit, Broward County, Florida, attached hereto as Exhibit 15.
16. Virginia Roberts' passport, attached hereto as Exhibit 16.
17. Judge Thomas Lynch's January 12, 2016 Confidentiality Order regarding Virginia
Giuffre's deposition, attached hereto as Exhibit 17.
18. Documents produced and bates labelled Non-Party VR 000001 - Non-Party VR
000644, in the Bradley Edwards and Paul Cassell v. Alan Dershowitz matter,
pending in the Seventeenth Judicial Circuit, Broward County, Florida, attached
hereto as Exhibit 18.
19. Victims Refuse Silence Articles of Incorporation and Amendment, attached hereto
as Composite Exhibit 19.
20. Victims Refuse Silence By-laws, attached hereto as Exhibit 20.
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21. Victims Refuse Silence 2016 Annual Report, attached hereto as Exhibit 21.
22. January 3, 2015 Daily Mail article: "Harvard Law Professor Named Alongside
Prince Andrew in 'Sex Slave' Case Accuses Alleged Victim of 'Making Up
Stories,"' attached hereto as Exhibit 22.
23. January 3, 2015 Press Statement issued by Ross Gow to Express set forth in
"Ghislaine Maxwell: I was not a madam for paedophile," attached as Exhibit 23.
24. January 4, 2015 Statement by Ghislaine Maxwell to New York Daily News
Reporter "Alleged Madam Accused of Supplying Prince Andrew With Underage
Teen for Sex Spotted in NYC-As He's Seen Cutting Swiss Vacation Short to Face
Queen," attached hereto as Exhibit 24.
25. February 1, 2015 Mirror article: "Prince Andrew's Pal Ghislaine Maxwell May Sue
Over Madam Allegations," attached hereto as Exhibit 25.
26. September 23, 2007 Red Ice Creations Article "Prince Andrew's Friend, Ghislaine
Maxwell, Some Underage Girls, and A Very Disturbing Story," attached hereto as
Exhibit 26.
27. Photographs, attached hereto as Exhibit 27.
28. April 13, 2010 Deposition Transcript of Nadia Marcinkova, attached hereto as
Exhibit 28.
D. Computation of damages:
1. Physical, psychological and psychiatric injuries and resulting medical expenses - in
an amount of approximately $ 102,200 present value.
a. Computation Analysis:
1. Giuffre has had to receive treatment for the psychological harm as a
result of Maxwell's conduct towards Giuffre.
11. The average annual expenditures for mental health services for adults
18-64 in the United States is $1,751.
111. Giuffre needs continuing care as a result of the harm she has suffered.
Ms. Giuffre was born August 9, 1983 and was 31.4 years old at the
beginning of 2015 when the alleged harm occurred. The average
remaining life expectancy for a 31 year old female is 51.1 years.
1v. Based on a remaining life expectancy of 51.1 years, annual healthcare
cost growth of 3.3% and a discount rate of 2.7%, the present value of
expected treatment costs is $102,200 as of 1/1/2015.
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b. Supporting Evidence:
1. Ms. Giuffre is in the process of collecting records from her physicians
11. Ms. Giuffre's testimony
111. Ms. Giuffre is in the process of retaining an expert to calculate
damages, and will provide further information through expert
disclosure.
2. Past, present and future pain and suffering, mental anguish, humiliation,
embarrassment, loss of self-esteem, loss of standing in the community, loss of
dignity and invasion of privacy in her public and private life not less than
$30,000,000.00.
a. Computation Analysis
1. Under New York law, defamation per se as alleged in this case
presumes damages and special damages do not need to be plead and
proven. See Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163,
179 (2 nd Cir. 2000) (Second Circuit holding that '[i]f a statement is
defamatory per se, injury is assumed. In such a case 'even where the
plaintiff can show no actual damages at all, a plaintiff who has
otherwise shown defamation may recover at least nominal damages'
and the Second Circuit also confirmed an award of punitive
damages). Ms. Giuffre has been severely damaged by the defamation
of the defendant, by calling her claims of sexual abuse "obvious lies".
The defamation caused Ms. Giuffre to re-live the sexual abuse she
previously endured. Ms. Giuffre has suffered and continues to suffer
from the pain, mental anguish, humiliation, embarrassment, loss of
self-esteem, loss of standing in the community, loss of dignity and
invasion of privacy in her public and private life. The computation of
this amount is in the province of the jury but Ms. Giuffre contends,
including but not limited to, awards in other similar matters, that the
amount is not less than $30,000,000.00. Ms. Giuffre is in the process
of retaining an expert, and will provide further information through
expert disclosure.
b. Supporting Evidence
1. Ms. Giuffre's testimony
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11. Witness testimony
111. Awards in similar matters
1v. Ms. Giuffre is in the process of retaining an expert, and will provide
further information through expert disclosure.
3. Punitive Damages - to be based upon all relevant factors, including the egregious
nature of Defendant, Ghislaine Maxwell's conduct and the need for a large award to
punish and deter conduct in view of the vast wealth of Defendant Maxwell, in an
amount not less than $50,000,000.00.
a. This calculation is in the province of the jury.
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Dated: June 24, 2016.
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: Isl Sigrid Mccawley
Sigrid Mccawley (Pro Hae Vice)
Meredith Schultz (Pro Hae Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hae Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hae Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-5202 1
1 This daytime business address is provided for identification and correspondence purposes only and is not intended to
imply institutional endorsement by the University of Utah for this private representation.
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Case 1:15-cv-07433-LAP Document 1330-3 Filed 01/05/24 Page 26 of 26
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the above and foregoing
Disclosure Pursuant to Fed. R. Civ. P. 26 has been provided by United States mail and electronic
mail to all counsel of record identified below, on this 24th day of June, 2016.
Laura A. Menninger, Esq.
Jeffrey S. Pagliuca, , Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
Email: [email protected]
By: Isl Sigrid Mccawley
Sigrid Mccawley
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giuffre-maxwell
Unknown
22 pages
Case 1:15-cv-07433-LAP Document 1219-22 Filed 07/15/21 Page 1 of 22
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR
PROTECTIVE ORDER REGARDING FINANCIAL INFORMATION
Plaintiff, Virginia Giuffre, by and through her undersigned counsel, files this Response in
Opposition to Defendant’s Motion for a Protective Order Regarding Financial Information (DE
370). Defendant’s financial information is highly relevant to this case, particularly in light of
Ms. Giuffre’s punitive damages claim as well as press reports suggesting that the Defendant may
be selling her assets in New York and transferring the money outside the jurisdiction.
Accordingly, Defendant’s motion for a protective order should be denied.1
I. PRELIMINARY STATEMENT
As recounted by Defendant (DE 370 at 1-3), Ms. Giuffre has served discovery requests
on Defendant, seeking certain financial information from the Defendant. The requests are
narrowly tailored to the time frame related to this case, as the requested information concerns
1
Contemporaneous with the filing of this response to Defendant’s motion for a protective order
regarding financial information, Ms. Giuffre has also filed a motion to compel Defendant to
produce the requested financial information. This parallel filing is apparently required because
Ms. Giuffre does not simply seek the negative relief of denial of Defendant’s requested
protective order but also the affirmative relief of a Court order requiring production of the
materials.
1
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financial information from just the time during which Defendant has defamed Ms. Giuffre (2015
to present).
As with most of the other discovery requests she has received, Defendant has chosen not
to produce any information. Instead, she has filed this motion for a blanket protective order,
arguing that financial discovery has no relevance whatsoever to any issue in this case. Of course,
given the broad scope of discovery, the Court can grant Defendant’s motion only if no relevance
exists at all. But in fact, Defendant’s financial information is highly relevant to at least three
issues in this case. First, Defendant’s recent efforts to conceal assets from the reach of this Court
proves consciousness of her guilt of sex trafficking. Second, Defendant’s financial affairs will
show dependence on Epstein for financial support, an issue highly relevant to motive.2 Third, as
Defendant herself appears to admit, the discovery is relevant to the size of the punitive damage
award that the jury should enter in this case. Facts relevant to each of these three points are set
out in order below.
A. Discovery of Financial Information is Relevant to Show Defendant’s
Transfer of Assets Out of the Jurisdiction after the Commencement of
Litigation and thus Her Consciousness of Guilt.
The requested financial information is relevant to issues relating to Defendant’s apparent
attempt to conceal assets from the Court. The timing of recent events is telling here. As the
Court will recall, in court pleadings filed December 30, 2014, Ms. Giuffre initially publicly
alleged Defendant had sexually abused her. On September 21, 2015, Ms. Giuffre filed her
lawsuit against Defendant here in the Southern District of New York. (DE 1.) Ms. Giuffre is
seeking at least $50 million in compensatory and punitive damages from Ms. Maxwell. Just a
few months after the suit was filed, on April 28, 2016, the New York Post reported that
2
As recently as 2005, Defendant was on Epstein’s Palm Beach House bank account for Palm
Beach. Bates Number SAO FOIA disc 7 (bates Giuffre 007590) at p. 93-95.
2
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Defendant, “the daughter of the late disgraced press baron Robert Maxwell, has sold her
townhouse at 116 E. 65th St. for $15 million.” See http://nypost.com/2016/04/28/alleged-epstein-
madam-sells-16m-manhattan-townhouse/. When questioned about the sale, Defendant’s
representative refused to comment. See id. (broker Shari Scharfer Rollins, of Douglas Elliman,
did not return calls).
The transfers of assets, likely out of the jurisdiction of this Court, provides evidence of
consciousness of criminal guilt and civil liability. Clearly, Ms. Giuffre is entitled to explore all
the circumstances surrounding the timing and consummation of this sale, including whether
Defendant has now secreted these assets someplace where they may be difficult to reach, such as
in the United Kingdom (where, on information and belief, Maxwell is a UK citizen holding a UK
passport) or elsewhere.
Maxwell’s removal and apparent concealment of assets takes place against a backdrop of
disregard of court orders by Maxwell and others involved in the Epstein sex trafficking
organization. In 2009, before suit was ever filed in this case, Maxwell was served with a
subpoena for a deposition in a civil case against Jeffrey Epstein. After extensive discussion and
coordinating a convenient time and place, as well as ultimately agreeing to a confidentiality
agreement prepared by Maxwell’s attorney, at the eleventh hour Maxwell’s attorney informed
plaintiff’s counsel that Maxwell’s mother was very ill and that consequently Maxwell was
leaving the country with no plans to return. The deposition was cancelled.
Similarly, the Court is familiar with the long (and still on-going) effort of Ms. Giuffre’s
efforts to take the depositions of those who participated with Defendant in sexual abuse --
3
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including Jeffrey Epstein, Nadia Marcikova, and Sarah Kellen – depositions that have thus far
been defeated by evasions of service of process and other similar maneuvers. See DE 160,
Motion for Leave to Serve Three Deposition Subpoenas by Means Other than Personal Service,
which this Court granted on June 20, 2016; DE 308, Motion for Finding Civil Contempt against
Sarah Kellen for Ignoring Subpoena (pending); DE 310, Motion for Finding of Civil Contempt
against Nadia Marcinkova for Ignoring Subpoena (pending). Similarly, the Court will recall that
Ms. Giuffre was recently forced to resort to the Hague Convention in an effort to depose
Maxwell’s spokesman, Ross Gow, about statements he made on Defendant’s behalf. See DE
306, Motion for Extension of Time to Complete Discovery to Serve and Depose Ross Gow
(pending); DE 330 and 331, Application for Letters Rogatory (application granted and letter
issued by the Court on August 11, 2016 (DE 358)).
Against the backdrop of these repeated evasion efforts, Defendant’s sale of $15 million in
assets appears even more alarming. And, evidence of consciousness of guilt is admissible in
criminal cases, even where the standard of proof is much higher than in a civil case. See, e.g.,
United States v. Amuso, 21 F.3d 1251, 1258 (2d Cir. 1994) (recognizing admissibility of
evidence from which a jury could find consciousness of guilt). Ms. Giuffre it entitled to explore
all the circumstances surrounding Ms. Maxwell’s apparent efforts to hide assets.3
B. Discovery of Financial Information is Relevant to Show a Financial Link to
Epstein.
In addition to providing evidence Defendant is hiding assets, the financial information
will help to establish an important link between Defendant and Jeffrey Epstein. Drawing again
3
The Court should review Defendant’s reply to this pleading carefully to see if she represents to
the Court that the $15 million in assets she has apparently concealed will be made available to
satisfy any judgment that Ms. Giuffre might obtain in this case. If Defendant fails to make such
a representation, the Court can draw the obvious inference that Defendant is attempting to hide
her assets to escape responsibility for paying any ultimate judgment here.
4
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on a published article from the New York Post, it appears that Defendant’s townhouse (among
other assets) might be part of a covert payoff from Epstein to Defendant. As the Post reports,
“[a] lawyer with links to Epstein reportedly bought the townhouse for Maxwell, who has
allegedly never earned enough or inherited enough to make the purchase on her own.”
http://nypost.com/2016/04/28/alleged-epstein-madam-sells-16m-manhattan-townhouse/. This
article suggests that Defendant is reliant upon Epstein for tremendous financial support, which
certainly provides a strong motive for her to provide favors to Epstein – including providing him
with underage girls for sex. It also provides a strong motive for her to lie at trial about Epstein’s
(and her own) sex trafficking. Indeed, to conceal these facts, other media reports suggest that
the reason that Defendant was trying to sell her townhouse “quietly” was perhaps “to put some
distance between herself and Epstein, who owns a mansion a few blocks away.”
http://pagesix.com/2015/02/02/accused-epstein-madam-quietly-selling-ues-townhouse/.
Again, perhaps there is some innocent explanation for these secretive efforts. But, if so,
Defendant has declined to provide it. See id. (noting Defendant’s “rep didn’t comment”).
C. Discovery of Financial Information is Relevant to the Issue of the Size of any
Punitive Damages.
Financial information regarding Defendant is also highly relevant to Ms. Giuffre’s
punitive damages claim. Of course, it is well-settled law that “evidence of a tortfeasor’s wealth
is traditionally admissible as a measure of the amount of punitive damages that should be
awarded.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270 (1981). As explained by
the Reporters of the American Law Institute’s Restatement of Torts, when considering the size of
punitive damages “[t]he wealth of the defendant is also relevant, since the purposes of exemplary
damages are to punish for a past event and to prevent future offenses, and the degree of
5
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punishment or deterrence resulting from a judgment is to some extent in proportion to the means
of the guilty person.” Restatement (Second) of Torts § 908, cmt. e (1979).
Defendant does not attempt to quarrel with the proposition that her vast wealth is relevant
to Ms. Giuffre’s punitive damages claim. See, e.g., DE 370 at 6 (citing case allowing
information about a defendant’s wealth to be presented to the jury). Instead, it appears that her
only argument concerns the timing of the disclosure of such information, an issue discussed
below. For purposes of setting out the salient facts, then, it is enough to note here that even
Defendant has to ultimately concede that discovery about her financial information is relevant to
this case.
II. DISCUSSION
Because discovery regarding Defendant’s financial circumstances and recent transactions
is relevant to this case for multiple reasons, Ms. Giuffre is entitled to discovery regarding that
information. Under Federal Rule of Civil Procedure 34(a), a party may request that another
party produce documents in her possession so long as the documents are within the scope of Fed.
R. Civ. P. 26(b), which allows for broad discovery regarding any non-privileged matter that is
relevant to any party’s claim or defense. Information within this scope of permitted discovery
need not be admissible in evidence to be discoverable. Relevance is still to be “construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on” any party's claim or defense. State Farm Mut. Auto. Ins. Co. v. Fayda, No.
14CIV9792WHPJCF, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (granting motion to
compel). For reasons explained above, the financial information sought is relevant to issues in
this case, and, accordingly Defendant’s motion for a protective order should be denied. There is
also no sound reason for delaying discovery on these issues.
6
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A. Discovery of Financial Information is Appropriate Pre-Trial to Avoid the
Need to Summon Two Separate Juries to Hear the Evidence in the Case.
Seemingly recognizing the fact that discovery regarding her financial information is
appropriate, Defendant’s ultimate argument appears not to be that the discovery is improper, but
rather that it should be delayed until after the trial starts. Thus, Defendant’s first specific
argument section is that financial “discovery is not appropriate pre-trial.” DE 370 at 6. In
support of this proposition, Defendant’s lead citation is a forty-year-old New York case, Rupert
v. Sellers, 48 A.D.2d 265 (4th Dept. 1975). But as much more recent authority from the Southern
District of New York explains, Rupert is inapplicable to discovery issues because the case relates
solely to the sequence with which evidence can be produced at trial:
[Defendant’s] reliance on Rupert v. Sellers, 48 A.D.2d 265, 368 N.Y.S.2d 904
(4th Dep’t 1975), for the proposition that punitive damages discovery is not
appropriate until a plaintiff has first established liability is misguided since federal
law and not state law governs questions of procedure such as discoverability.
Hazeldine v. Beverage Media, Ltd., No. 94 Civ. 3466 (CSH), 1997 WL 362229, at
*3 (S.D.N.Y. June 27, 1997) (citations omitted). Moreover, while the Second
Circuit “has cited Rupert with approval, it has done so for the proposition that
evidence of a defendant's wealth should not ‘be brought out at trial unless and
until the jury has brought in a special verdict that the plaintiff is entitled to
punitive damages.’ ” Id. (citations omitted). It has not held that financial
discovery such as that sought here may only be taken after a liability
determination.
Pasternak v. Dow Kim, 275 F.R.D. 461, 463 (S.D.N.Y. 2011).
Defendant also cites another decision from this court, Collens v. City of New York, 222
F.R.D. 249, 254 (S.D.N.Y. 2004). DE 370 at 7. But Collens does not stand for the proposition
that financial discovery is broadly barred, but only that on the facts of that case no such
discovery was required. As a recent case from the District of New Jersey explains in allowing
pre-trial discovery of financial information for punitive damages purposes:
Defendants assert that until there has been a finding of liability by the jury,
punitive damage discovery is not appropriate. Defendants rely on Collens, where
the court stated that because the issue of punitive damages is generally bifurcated
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from issues of liability, and punitive damages issues thus may never arise,
punitive damage discovery was not necessary at the pretrial stage. See Collens,
222 F.R.D. at 254. Plaintiffs assert that the same jury will decide both liability and
punitive damages issues and that, as a practical matter, there is no time to conduct
discovery—including depositions of the individual police officers—between the
liability verdict and the charge to the jury on punitive damages. Plaintiffs' counsel
represented at oral argument that if Defendants are concerned with maintaining
the confidentiality of the individual police officer defendants' personal
information, Plaintiffs will agree to a confidentiality order and the sealing of those
portions of the deposition transcripts and documents that disclose such
information until such time as there is a finding of liability, if any, as to the
individual police officer defendants. . . . Insofar as Plaintiffs assert a claim under
42 U.S .C. § 1983, the Court notes that “evidence of a tortfeasor's wealth is
traditionally admissible as a measure of the amount of punitive damages that
should be awarded[.]” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270
(1981). Therefore, interrogatories seeking information about Defendants' financial
condition are reasonably calculated to lead to the discovery of admissible
evidence on the issue of punitive damages.
Graham v. Carino, No. CIV.09-4501 JEI/AMD, 2010 WL 2483294, at *3 (D.N.J. June 4, 2010).
That pre-trial discovery on financial matters is allowed when a punitive damage issue is
present in a case is confirmed by Tillery v. Lynn, 607 F. Supp. 399, 402-03 (S.D.N.Y. 1985). To
leave the discovery until later would be burdensome on the jury – meaning that a common
approach is to allow financial discovery to proceed pre-trial and then to later bifurcate the trial
itself into liability and punitive damages phases:
Discovery as to defendant's personal assets may be undertaken by plaintiff at this
time. It would be unduly burdensome to plaintiff, and most particularly a jury and
the court, to delay resolution of the issue as to the amount of punitive damages, if
any, which should be awarded until discovery as to defendant's personal assets
had been completed. However, as the New York courts have recognized,
“defendant's wealth should not be a weapon to be used by plaintiff to enable him
to induce the jury to find the defendant guilty of malice, thus entitling plaintiff to
punitive damages.” Rupert v. Sellers, 48 A.D.2d 265, 272, 368 N.Y.S.2d 904, 912
(4th Dep't 1975). Accord, Chilvers v. New York Magazine Company, Inc., 114
Misc.2d 996, 453 N.Y.S.2d 153 (N.Y.Co.Sup.Ct.1982). Accordingly, in the
interest of justice and to avoid any undue prejudice during the liability phase of
this action, the trial will be bifurcated. . . . Therefore, defendant's motions for
partial summary judgment and to stay discovery as to his financial status are
denied.
Tillery v. Lynn, 607 F. Supp. 399, 402-03 (S.D.N.Y. 1985) (Motley, J.).
8
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The holding in Tillery was endorsed in Hazeldine v. Beverage Media, Ltd., No. 94 CIV.
3466 (CSH), 1997 WL 362229, at *2-*3 (S.D.N.Y. 1997), which explained” “Tillery followed
this preferred course by bifurcating the trial, see Simpson, 901 F.2d at 283, but allowing pre-trial
financial discovery to proceed.” Most cases in most jurisdictions outside the Southern District of
New York have reached exactly the same conclusion and allowed pre-trial discovery of financial
information for punitive damage purposes.4
4
See, e.g.:
CEH, Inc. v. FV Seafarer, 153 F.R.D. 491 (D.R.I.1994) (plaintiffs were not required to
establish prima facie case on issue of punitive damages before they could obtain pretrial
discovery of financial information of defendants; plaintiffs had alleged facts sufficient to
make a non-spurious claim for punitive damages and that was sufficient to warrant
discovery);
E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D.Cal.2009)
(evidence of employer's current financial worth was relevant to issue of punitive
damages, and thus was discoverable in Title VII action alleging sexual harassment and
retaliation, where complaint sought punitive damages, deposition evidence indicated that
employer may have acted in reckless disregard of female employees' federal rights, and
privacy concerns could be addressed with protective order);
Grosek v. Panther Transp., Inc., 251 F.R.D. 162 (M.D. Pa. 2008) (there was no good
cause to issue protective order preventing discovery of defendants’ financial condition
until determination was made that punitive damages were warranted; plaintiffs stated
claim for punitive damages, and delaying discovery until after discovery of evidence
supporting punitive damages would have been inefficient and delayed conclusion of the
case);
Vieste, LLC v. Hill Redwood Dev., No. C-09-04024 JSW DMR, 2011 WL 855831, at *1
(N.D. Cal. Mar. 9, 2011) (allowing pre-trial discovery of Defendants' net worth and
financial condition because it was clearly relevant to the issue of punitive damages);
Charles O. Bradley Trust v. Zenith Capital, LLC, 2005 WL 1030218, at *3 (N.D.Cal.
May 3, 2005) (while some federal courts have required a prima facie showing of
entitlement to punitive damages before ordering discovery, the majority have not and
listing cases);
In re Aqua Dots Products Liability Litigation, 270 F.R.D. 322 (N.D. Ill. 2010), aff'd,
654 F.3d 748 (7th Cir. 2011) (plaintiffs' discovery regarding financial information from
manufacturer and distributor of recalled children's toy was discoverable in a product
liability action. Plaintiffs sought punitive damages, and the distributor and manufacturer
were arguably principal actors);
Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281 (C.D. Cal. 1998) (because defendants
asserted a counterclaim seeking punitive damages, they could obtain discovery regarding
9
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Defendant also cites a decision from Judge Cote in Tyco Intern. Ltd. v. Walsh, which
allowed a delay in seeking discovery of financial information in that case because it was not
clear if the issue would become relevant. But that case involved peculiar circumstances, which
permitted discovery of financial information to be bi-furcated without any burden on the Court.
Specifically, that case involved a bench trial, which allowed a delay between the liability phase
and punitive damages phases of the trial. As the Court explained. “it would be premature to
force the defendant to produce his net worth information at this time. If necessary, plaintiff will
have an opportunity to obtain discovery on the defendant's financial circumstances as part of any
post-trial discovery. Since the trial in this matter is a bench trial, no jury will be burdened by any
delay occasioned by this discovery period.” Tyco Int'l Ltd. v. Walsh, No. 02-CV-4633 (DLC),
2010 WL 3000179, at *1 (S.D.N.Y. July 30, 2010).
Of course, exactly the opposite situation exists here. Defendant would apparently have
the Court delay until the jury returns with its verdict in favor of Ms. Giuffre before allowing
discovery to proceed on Defendant’s financial circumstances. As a practical matter, this would
seem to require sending the jury empaneled to hear liability issues home and then selecting a
new, second jury on punitive damages issues – a new jury which would have to somehow be
shown all of the previous testimony from the liability phase. See Hazeldine v. Beverage Media,
Ltd., No. 94 CIV. 3466 (CSH), 1997 WL 362229, at *2-*3 (S.D.N.Y. 1997) (“allowing pre-trial
plaintiffs' net worth; California limitations on such discovery did not apply in federal
court);
Caruso v. Coleman Co., 157 F.R.D. 344 (E.D. Pa. 1994) (“In products liability action,
plaintiffs would be allowed discovery of defendants’ financial statements and total sales
revenue on the ground they are relevant to the issue of punitive damages; information
regarding punitive damages is as discoverable as information that relates to liability, and
discovery could proceed without prior proof of prima facie case on punitive damages.”).
10
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discovery [of financial information] avoids the inefficiency of a discovery delay between the
liability and damages phases of trial, as well as the need to assemble a second jury.”).
Finally, Defendant relies upon Guccione v. Flynt, for the proposition that financial
discovery is not appropriate on punitive damages issues here. But that case was sui generis with
peculiar facts that render it inapplicable here. See Guccione v. Flynt, No. 83 CIV. 8020 RWS,
1985 WL 255, at *1 (S.D.N.Y. Feb. 6, 1985) (“It should be apparent to anyone forced to review
these papers and the issues presented by this action that two men with ample resources are
employing lawyers and occupying space and time in the justice system to continue their personal
feud. Regrettably there is to date no apparent basis to avoid the unappetizing task of ruling on
these motions.”). Moreover, in that case, the Court in fact ordered the Defendant to produce
financial information to be turned over to plaintiff’s counsel at the time of trial. See id. at 1.
While that solution may have worked well in that case, it is not satisfactory here. Defendant is
not an established businessperson with regularly-kept disclosure statements reporting income and
related financial information. Instead, Defendant is participant in a covert, sex trafficking
organization with mysterious financial arrangements and apparent, recent efforts to conceal
assets. In such circumstance, Ms. Giuffre is not required to take the Defendant’s net worth
statement at face value, but instead is entitled to receive it well in advance of trial so that she
may investigate its accuracy.
Finally, this Court has previously rejected exactly the same arguments that are being
made here. This Court explained that “[w]hile bifurcation may be the preferred method of
resolving disputed issues of liability and damages, as it prevents prejudice to the defendants by
keeping financial evidence out of the liability phase of the trial, this does not mean that plaintiffs
should be denied pretrial financial discovery.” Hamm v. Potamkin, No. 98 CIV. 7425 (RWS),
1999 WL 249721, at *2 (S.D.N.Y. Apr. 28, 1999). This Court explained that “[a]s far as the
11
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clear-cut as to deprive Ms. Giuffre of her right to jury trial borders on frivolous. Ms. Giuffre is a
courageous young woman who has come forward to reveal the broad dimensions of a sex
trafficking ring – a criminal conspiracy that involved Defendant. That fact, alone, is enough to
send the issue of damages to Ms. Giuffre’s reputation to a jury, particularly because any other
approach would “require[] the Court to make factual findings regarding plaintiff's reputation for
a particular trait.” Church of Scientology Int'l v. Time Warner, Inc., 932 F. Supp. 589, 594
(S.D.N.Y. 1996) (refusing to grant summary judgment on a libel proof plaintiff argument), aff'd
238 F.3d 168 (2d Cir. 2001); see also id. citing Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563,
1568 (D.C. Cir. 1984) (“To begin with, we cannot envision how a court would go about
determining that someone's reputation had already been ‘irreparably’ damaged—i.e., that no new
reader could be reached by the freshest libel” (Scalia, J.) (emphasis in original)), vacated on
other grounds, 477 U.S. 242 (1986).
Defendant also predicts that Ms. Giuffre will “have a nearly insurmountable task to
demonstrate that [Defendant] acted with the requisite degrees of malice.” DE 370 at 10
(emphasis added). Of course, the qualifier gives away the game – a “nearly” insurmountable
task is not one on which summary judgment is appropriate. And, in any event, once Ms. Giuffre
proves at trial (as she will) that Defendant was deeply involved in Epstein’s sex trafficking ring,
it becomes obvious that Defendant’s attacks on Ms. Giuffre’s credibility were uttered with
malice. Defendant knew full well, for example, that Ms. Giuffre’s statements that Defendant
was involved in Epstein’s sex trafficking were not “obvious lies.” She knew that because she
had been involved in (among other things) procuring multiple underage girls for Epstein to
sexually abuse10 – including Ms. Giuffre herself.
10
See Message Pads concerning Defendant (GIUFFRE001523; GIUFFRE001427;
GIUFFRE001451; GIUFFRE001454; GIUFFRE001460; GIUFFRE001461; GIUFFRE001464;
14
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III. DISCOVERY OF DEFENDANT’S FINANCIAL INFORMATION SHOULD NOT
BE CONFINDED TO A NET WORTH STATEMENT.
Perhaps recognizing that it is inevitable that her financial information will be relevant in
this case, Defendant makes one last argument that discovery of financial information should be
“limited to a sworn affidavit of net worth.” DE 370 at 13. Whatever may have been the
circumstance warranting limitations in other cases, the circumstances here make that approach
highly inappropriate. Once again, it is important to remember that this is not a case involving,
for example, a public-traded company with audited financial statements, or a situation involving
otherwise-incontestable financial information. Cf. Hamm v. Potamkin, No. 98 CIV. 7425
(RWS), 1999 WL 249721, at *3 (S.D.N.Y. Apr. 28, 1999) (for purposes of pre-trial punitive
damages discovery, directing corporate defendants “to produce a financial affidavit containing a
statement of its total net worth and listing its income, assets, and liabilities for the past three
years”).
Instead, this case involves a shadowy criminal organization, involving a kingpin with vast
wealth (Jeffrey Epstein, a reported billionaire), and multi-million dollar transactions to others in
the organization such as Defendant (e.g., the apparent concealed transfer, through an attorney
associated with Epstein, of an apartment to Defendant worth, in 2015, $15,000,000). Given the
strong possibility of wrongdoing lurking here, a mere declaration of net worth promises to be
next to worthless. To provide a simple example, if Defendant were to testify at trial she had a
net worth of only ten million dollars – and not provide information about where she had hidden
the fifteen million dollars associated with the sale of her apartment – then Ms. Giuffre will have
little effective way to challenge the claim. Moreover, as noted above, the record is replete with
multiple examples of Defendant failing to recall obvious and highly incriminating facts. Given
Defendant’s amnesia about important events, it seems obvious that she may similarly be
17
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(DE 62). As this Court has previously explained, in allowing discovery of financial information
for punitive damage purposes, “any privacy interests defendants may have in confidential
financial information produced to plaintiffs can be secured by the protective order issued by this
Court.” Hamm v. Potamkin, No. 98 CIV. 7425 (RWS), 1999 WL 249721, at *2 (S.D.N.Y. Apr.
28, 1999). Nothing in Defendant’s motion establishes that Ms. Giuffre should be barred from the
kinds of ordinarily discovery that often accompanies cases in which the financial dealings of a
defendant are discoverable.
This argument is also belied by the fact that Defendant sought, and received, Ms.
Giuffre’s personal financial information. Specifically, she sought any payment information
relating to the media. See Defendant’s First Set of Requests for Production at No. 30. Ms.
Giuffre provided documents responsive to this request, which included her personal bank
records. Defendant takes the contradictory and self-serving position that discovery concerning
the personal finances of Ms. Giuffre is appropriate, yet discovery concerning her own finances is
somehow inappropriate.
At the very least, the Defendant should be required to produce a “statement of [her] total
net worth and listing [her] income, assets, and liabilities for the [relevant] years,” as this Court
ordered in a previous case. Hamm v. Potamkin, No. 98 CIV. 7425 (RWS), 1999 WL 249721, at
*3 (S.D.N.Y. Apr. 28, 1999). But because that formulation came from an earlier case involving
reputable corporate entities with (apparently) audited financial statements, the discovery here
should be much broader – and should include all of the significant requests made by Ms. Giuffre.
For example, Defendant should also be required to identify all financial transactions involving
(directly or indirectly) Jeffrey Epstein, , Ellmax LLC, The TerraMar
Project, and any other person listed in the Rule 26 disclosures of either side in this case.
Transactions with potential witnesses in this case are highly relevant to bias and other trial
19
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issues. And because of concern that the Defendant is concealing assets, she should also be
required to reveal all significant (greater than $10,000) assets or other monetary transfers in since
the beginning of January 1, 2015, as well as all transfers of assets or money outside of this
Court’s jurisdiction, including transfers overseas.
IV. CONCLUSION
Based upon the foregoing, Ms. Giuffre respectfully requests that this Court deny
Defendant’s motion for a protective order barring discovery into her financial situation. In a
contemporaneously-filed motion to compel, Ms. Giuffre also respectfully requests that the Court
grant a motion to compel Defendant to answer questions about her financial information.
Dated: August 22, 2016.
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
20
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Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-520214
14
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
21
Case 1:15-cv-07433-LAP Document 1219-22 Filed 07/15/21 Page 22 of 22
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 22th day of August, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
22
giuffre-maxwell
Unknown
22 pages
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 1 of 22
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR
PROTECTIVE ORDER REGARDING FINANCIAL INFORMATION
Plaintiff, Virginia Giuffre, by and through her undersigned counsel, files this Response in
Opposition to Defendant’s Motion for a Protective Order Regarding Financial Information (DE
370). Defendant’s financial information is highly relevant to this case, particularly in light of
Ms. Giuffre’s punitive damages claim as well as press reports suggesting that the Defendant may
be selling her assets in New York and transferring the money outside the jurisdiction.
Accordingly, Defendant’s motion for a protective order should be denied.1
I. PRELIMINARY STATEMENT
As recounted by Defendant (DE 370 at 1-3), Ms. Giuffre has served discovery requests
on Defendant, seeking certain financial information from the Defendant. The requests are
narrowly tailored to the time frame related to this case, as the requested information concerns
1
Contemporaneous with the filing of this response to Defendant’s motion for a protective order
regarding financial information, Ms. Giuffre has also filed a motion to compel Defendant to
produce the requested financial information. This parallel filing is apparently required because
Ms. Giuffre does not simply seek the negative relief of denial of Defendant’s requested
protective order but also the affirmative relief of a Court order requiring production of the
materials.
1
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financial information from just the time during which Defendant has defamed Ms. Giuffre (2015
to present).
As with most of the other discovery requests she has received, Defendant has chosen not
to produce any information. Instead, she has filed this motion for a blanket protective order,
arguing that financial discovery has no relevance whatsoever to any issue in this case. Of course,
given the broad scope of discovery, the Court can grant Defendant’s motion only if no relevance
exists at all. But in fact, Defendant’s financial information is highly relevant to at least three
issues in this case. First, Defendant’s recent efforts to conceal assets from the reach of this Court
proves consciousness of her guilt of sex trafficking. Second, Defendant’s financial affairs will
show dependence on Epstein for financial support, an issue highly relevant to motive.2 Third, as
Defendant herself appears to admit, the discovery is relevant to the size of the punitive damage
award that the jury should enter in this case. Facts relevant to each of these three points are set
out in order below.
A. Discovery of Financial Information is Relevant to Show Defendant’s
Transfer of Assets Out of the Jurisdiction after the Commencement of
Litigation and thus Her Consciousness of Guilt.
The requested financial information is relevant to issues relating to Defendant’s apparent
attempt to conceal assets from the Court. The timing of recent events is telling here. As the
Court will recall, in court pleadings filed December 30, 2014, Ms. Giuffre initially publicly
alleged Defendant had sexually abused her. On September 21, 2015, Ms. Giuffre filed her
lawsuit against Defendant here in the Southern District of New York. (DE 1.) Ms. Giuffre is
seeking at least $50 million in compensatory and punitive damages from Ms. Maxwell. Just a
few months after the suit was filed, on April 28, 2016, the New York Post reported that
2
As recently as 2005, Defendant was on Epstein’s Palm Beach House bank account for Palm
Beach. Bates Number SAO FOIA disc 7 (bates Giuffre 007590) at p. 93-95.
2
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 3 of 22
Defendant, “the daughter of the late disgraced press baron Robert Maxwell, has sold her
townhouse at 116 E. 65th St. for $15 million.” See http://nypost.com/2016/04/28/alleged-epstein-
madam-sells-16m-manhattan-townhouse/. When questioned about the sale, Defendant’s
representative refused to comment. See id. (broker Shari Scharfer Rollins, of Douglas Elliman,
did not return calls).
The transfers of assets, likely out of the jurisdiction of this Court, provides evidence of
consciousness of criminal guilt and civil liability. Clearly, Ms. Giuffre is entitled to explore all
the circumstances surrounding the timing and consummation of this sale, including whether
Defendant has now secreted these assets someplace where they may be difficult to reach, such as
in the United Kingdom (where, on information and belief, Maxwell is a UK citizen holding a UK
passport) or elsewhere.
Maxwell’s removal and apparent concealment of assets takes place against a backdrop of
disregard of court orders by Maxwell and others involved in the Epstein sex trafficking
organization. In 2009, before suit was ever filed in this case, Maxwell was served with a
subpoena for a deposition in a civil case against Jeffrey Epstein. After extensive discussion and
coordinating a convenient time and place, as well as ultimately agreeing to a confidentiality
agreement prepared by Maxwell’s attorney, at the eleventh hour Maxwell’s attorney informed
plaintiff’s counsel that Maxwell’s mother was very ill and that consequently Maxwell was
leaving the country with no plans to return. The deposition was cancelled. Yet a short time later,
Maxwell was photographed at Chelsea Clinton’s wedding in Rhinebeck, New York, confirming
the suspicion that she was indeed still in the country and willing to say anything to avoid her
deposition.
Similarly, the Court is familiar with the long (and still on-going) effort of Ms. Giuffre’s
efforts to take the depositions of those who participated with Defendant in sexual abuse --
3
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including Jeffrey Epstein, Nadia Marcikova, and Sarah Kellen – depositions that have thus far
been defeated by evasions of service of process and other similar maneuvers. See DE 160,
Motion for Leave to Serve Three Deposition Subpoenas by Means Other than Personal Service,
which this Court granted on June 20, 2016; DE 308, Motion for Finding Civil Contempt against
Sarah Kellen for Ignoring Subpoena (pending); DE 310, Motion for Finding of Civil Contempt
against Nadia Marcinkova for Ignoring Subpoena (pending). Similarly, the Court will recall that
Ms. Giuffre was recently forced to resort to the Hague Convention in an effort to depose
Maxwell’s spokesman, Ross Gow, about statements he made on Defendant’s behalf. See DE
306, Motion for Extension of Time to Complete Discovery to Serve and Depose Ross Gow
(pending); DE 330 and 331, Application for Letters Rogatory (application granted and letter
issued by the Court on August 11, 2016 (DE 358)).
Against the backdrop of these repeated evasion efforts, Defendant’s sale of $15 million in
assets appears even more alarming. And, evidence of consciousness of guilt is admissible in
criminal cases, even where the standard of proof is much higher than in a civil case. See, e.g.,
United States v. Amuso, 21 F.3d 1251, 1258 (2d Cir. 1994) (recognizing admissibility of
evidence from which a jury could find consciousness of guilt). Ms. Giuffre it entitled to explore
all the circumstances surrounding Ms. Maxwell’s apparent efforts to hide assets.3
B. Discovery of Financial Information is Relevant to Show a Financial Link to
Epstein.
In addition to providing evidence Defendant is hiding assets, the financial information
will help to establish an important link between Defendant and Jeffrey Epstein. Drawing again
3
The Court should review Defendant’s reply to this pleading carefully to see if she represents to
the Court that the $15 million in assets she has apparently concealed will be made available to
satisfy any judgment that Ms. Giuffre might obtain in this case. If Defendant fails to make such
a representation, the Court can draw the obvious inference that Defendant is attempting to hide
her assets to escape responsibility for paying any ultimate judgment here.
4
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on a published article from the New York Post, it appears that Defendant’s townhouse (among
other assets) might be part of a covert payoff from Epstein to Defendant. As the Post reports,
“[a] lawyer with links to Epstein reportedly bought the townhouse for Maxwell, who has
allegedly never earned enough or inherited enough to make the purchase on her own.”
http://nypost.com/2016/04/28/alleged-epstein-madam-sells-16m-manhattan-townhouse/. This
article suggests that Defendant is reliant upon Epstein for tremendous financial support, which
certainly provides a strong motive for her to provide favors to Epstein – including providing him
with underage girls for sex. It also provides a strong motive for her to lie at trial about Epstein’s
(and her own) sex trafficking. Indeed, to conceal these facts, other media reports suggest that
the reason that Defendant was trying to sell her townhouse “quietly” was perhaps “to put some
distance between herself and Epstein, who owns a mansion a few blocks away.”
http://pagesix.com/2015/02/02/accused-epstein-madam-quietly-selling-ues-townhouse/.
Again, perhaps there is some innocent explanation for these secretive efforts. But, if so,
Defendant has declined to provide it. See id. (noting Defendant’s “rep didn’t comment”).
C. Discovery of Financial Information is Relevant to the Issue of the Size of any
Punitive Damages.
Financial information regarding Defendant is also highly relevant to Ms. Giuffre’s
punitive damages claim. Of course, it is well-settled law that “evidence of a tortfeasor’s wealth
is traditionally admissible as a measure of the amount of punitive damages that should be
awarded.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270 (1981). As explained by
the Reporters of the American Law Institute’s Restatement of Torts, when considering the size of
punitive damages “[t]he wealth of the defendant is also relevant, since the purposes of exemplary
damages are to punish for a past event and to prevent future offenses, and the degree of
5
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 6 of 22
punishment or deterrence resulting from a judgment is to some extent in proportion to the means
of the guilty person.” Restatement (Second) of Torts § 908, cmt. e (1979).
Defendant does not attempt to quarrel with the proposition that her vast wealth is relevant
to Ms. Giuffre’s punitive damages claim. See, e.g., DE 370 at 6 (citing case allowing
information about a defendant’s wealth to be presented to the jury). Instead, it appears that her
only argument concerns the timing of the disclosure of such information, an issue discussed
below. For purposes of setting out the salient facts, then, it is enough to note here that even
Defendant has to ultimately concede that discovery about her financial information is relevant to
this case.
II. DISCUSSION
Because discovery regarding Defendant’s financial circumstances and recent transactions
is relevant to this case for multiple reasons, Ms. Giuffre is entitled to discovery regarding that
information. Under Federal Rule of Civil Procedure 34(a), a party may request that another
party produce documents in her possession so long as the documents are within the scope of Fed.
R. Civ. P. 26(b), which allows for broad discovery regarding any non-privileged matter that is
relevant to any party’s claim or defense. Information within this scope of permitted discovery
need not be admissible in evidence to be discoverable. Relevance is still to be “construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on” any party's claim or defense. State Farm Mut. Auto. Ins. Co. v. Fayda, No.
14CIV9792WHPJCF, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (granting motion to
compel). For reasons explained above, the financial information sought is relevant to issues in
this case, and, accordingly Defendant’s motion for a protective order should be denied. There is
also no sound reason for delaying discovery on these issues.
6
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A. Discovery of Financial Information is Appropriate Pre-Trial to Avoid the
Need to Summon Two Separate Juries to Hear the Evidence in the Case.
Seemingly recognizing the fact that discovery regarding her financial information is
appropriate, Defendant’s ultimate argument appears not to be that the discovery is improper, but
rather that it should be delayed until after the trial starts. Thus, Defendant’s first specific
argument section is that financial “discovery is not appropriate pre-trial.” DE 370 at 6. In
support of this proposition, Defendant’s lead citation is a forty-year-old New York case, Rupert
v. Sellers, 48 A.D.2d 265 (4th Dept. 1975). But as much more recent authority from the Southern
District of New York explains, Rupert is inapplicable to discovery issues because the case relates
solely to the sequence with which evidence can be produced at trial:
[Defendant’s] reliance on Rupert v. Sellers, 48 A.D.2d 265, 368 N.Y.S.2d 904
(4th Dep’t 1975), for the proposition that punitive damages discovery is not
appropriate until a plaintiff has first established liability is misguided since federal
law and not state law governs questions of procedure such as discoverability.
Hazeldine v. Beverage Media, Ltd., No. 94 Civ. 3466 (CSH), 1997 WL 362229, at
*3 (S.D.N.Y. June 27, 1997) (citations omitted). Moreover, while the Second
Circuit “has cited Rupert with approval, it has done so for the proposition that
evidence of a defendant's wealth should not ‘be brought out at trial unless and
until the jury has brought in a special verdict that the plaintiff is entitled to
punitive damages.’ ” Id. (citations omitted). It has not held that financial
discovery such as that sought here may only be taken after a liability
determination.
Pasternak v. Dow Kim, 275 F.R.D. 461, 463 (S.D.N.Y. 2011).
Defendant also cites another decision from this court, Collens v. City of New York, 222
F.R.D. 249, 254 (S.D.N.Y. 2004). DE 370 at 7. But Collens does not stand for the proposition
that financial discovery is broadly barred, but only that on the facts of that case no such
discovery was required. As a recent case from the District of New Jersey explains in allowing
pre-trial discovery of financial information for punitive damages purposes:
Defendants assert that until there has been a finding of liability by the jury,
punitive damage discovery is not appropriate. Defendants rely on Collens, where
the court stated that because the issue of punitive damages is generally bifurcated
7
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from issues of liability, and punitive damages issues thus may never arise,
punitive damage discovery was not necessary at the pretrial stage. See Collens,
222 F.R.D. at 254. Plaintiffs assert that the same jury will decide both liability and
punitive damages issues and that, as a practical matter, there is no time to conduct
discovery—including depositions of the individual police officers—between the
liability verdict and the charge to the jury on punitive damages. Plaintiffs' counsel
represented at oral argument that if Defendants are concerned with maintaining
the confidentiality of the individual police officer defendants' personal
information, Plaintiffs will agree to a confidentiality order and the sealing of those
portions of the deposition transcripts and documents that disclose such
information until such time as there is a finding of liability, if any, as to the
individual police officer defendants. . . . Insofar as Plaintiffs assert a claim under
42 U.S .C. § 1983, the Court notes that “evidence of a tortfeasor's wealth is
traditionally admissible as a measure of the amount of punitive damages that
should be awarded[.]” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270
(1981). Therefore, interrogatories seeking information about Defendants' financial
condition are reasonably calculated to lead to the discovery of admissible
evidence on the issue of punitive damages.
Graham v. Carino, No. CIV.09-4501 JEI/AMD, 2010 WL 2483294, at *3 (D.N.J. June 4, 2010).
That pre-trial discovery on financial matters is allowed when a punitive damage issue is
present in a case is confirmed by Tillery v. Lynn, 607 F. Supp. 399, 402-03 (S.D.N.Y. 1985). To
leave the discovery until later would be burdensome on the jury – meaning that a common
approach is to allow financial discovery to proceed pre-trial and then to later bifurcate the trial
itself into liability and punitive damages phases:
Discovery as to defendant's personal assets may be undertaken by plaintiff at this
time. It would be unduly burdensome to plaintiff, and most particularly a jury and
the court, to delay resolution of the issue as to the amount of punitive damages, if
any, which should be awarded until discovery as to defendant's personal assets
had been completed. However, as the New York courts have recognized,
“defendant's wealth should not be a weapon to be used by plaintiff to enable him
to induce the jury to find the defendant guilty of malice, thus entitling plaintiff to
punitive damages.” Rupert v. Sellers, 48 A.D.2d 265, 272, 368 N.Y.S.2d 904, 912
(4th Dep't 1975). Accord, Chilvers v. New York Magazine Company, Inc., 114
Misc.2d 996, 453 N.Y.S.2d 153 (N.Y.Co.Sup.Ct.1982). Accordingly, in the
interest of justice and to avoid any undue prejudice during the liability phase of
this action, the trial will be bifurcated. . . . Therefore, defendant's motions for
partial summary judgment and to stay discovery as to his financial status are
denied.
Tillery v. Lynn, 607 F. Supp. 399, 402-03 (S.D.N.Y. 1985) (Motley, J.).
8
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 9 of 22
The holding in Tillery was endorsed in Hazeldine v. Beverage Media, Ltd., No. 94 CIV.
3466 (CSH), 1997 WL 362229, at *2-*3 (S.D.N.Y. 1997), which explained” “Tillery followed
this preferred course by bifurcating the trial, see Simpson, 901 F.2d at 283, but allowing pre-trial
financial discovery to proceed.” Most cases in most jurisdictions outside the Southern District of
New York have reached exactly the same conclusion and allowed pre-trial discovery of financial
information for punitive damage purposes.4
4
See, e.g.:
x CEH, Inc. v. FV Seafarer, 153 F.R.D. 491 (D.R.I.1994) (plaintiffs were not required to
establish prima facie case on issue of punitive damages before they could obtain pretrial
discovery of financial information of defendants; plaintiffs had alleged facts sufficient to
make a non-spurious claim for punitive damages and that was sufficient to warrant
discovery);
x E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D.Cal.2009)
(evidence of employer's current financial worth was relevant to issue of punitive
damages, and thus was discoverable in Title VII action alleging sexual harassment and
retaliation, where complaint sought punitive damages, deposition evidence indicated that
employer may have acted in reckless disregard of female employees' federal rights, and
privacy concerns could be addressed with protective order);
x Grosek v. Panther Transp., Inc., 251 F.R.D. 162 (M.D. Pa. 2008) (there was no good
cause to issue protective order preventing discovery of defendants’ financial condition
until determination was made that punitive damages were warranted; plaintiffs stated
claim for punitive damages, and delaying discovery until after discovery of evidence
supporting punitive damages would have been inefficient and delayed conclusion of the
case);
x Vieste, LLC v. Hill Redwood Dev., No. C-09-04024 JSW DMR, 2011 WL 855831, at *1
(N.D. Cal. Mar. 9, 2011) (allowing pre-trial discovery of Defendants' net worth and
financial condition because it was clearly relevant to the issue of punitive damages);
x Charles O. Bradley Trust v. Zenith Capital, LLC, 2005 WL 1030218, at *3 (N.D.Cal.
May 3, 2005) (while some federal courts have required a prima facie showing of
entitlement to punitive damages before ordering discovery, the majority have not and
listing cases);
x In re Aqua Dots Products Liability Litigation, 270 F.R.D. 322 (N.D. Ill. 2010), aff'd,
654 F.3d 748 (7th Cir. 2011) (plaintiffs' discovery regarding financial information from
manufacturer and distributor of recalled children's toy was discoverable in a product
liability action. Plaintiffs sought punitive damages, and the distributor and manufacturer
were arguably principal actors);
x Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281 (C.D. Cal. 1998) (because defendants
asserted a counterclaim seeking punitive damages, they could obtain discovery regarding
9
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 10 of 22
Defendant also cites a decision from Judge Cote in Tyco Intern. Ltd. v. Walsh, which
allowed a delay in seeking discovery of financial information in that case because it was not
clear if the issue would become relevant. But that case involved peculiar circumstances, which
permitted discovery of financial information to be bi-furcated without any burden on the Court.
Specifically, that case involved a bench trial, which allowed a delay between the liability phase
and punitive damages phases of the trial. As the Court explained. “it would be premature to
force the defendant to produce his net worth information at this time. If necessary, plaintiff will
have an opportunity to obtain discovery on the defendant's financial circumstances as part of any
post-trial discovery. Since the trial in this matter is a bench trial, no jury will be burdened by any
delay occasioned by this discovery period.” Tyco Int'l Ltd. v. Walsh, No. 02-CV-4633 (DLC),
2010 WL 3000179, at *1 (S.D.N.Y. July 30, 2010).
Of course, exactly the opposite situation exists here. Defendant would apparently have
the Court delay until the jury returns with its verdict in favor of Ms. Giuffre before allowing
discovery to proceed on Defendant’s financial circumstances. As a practical matter, this would
seem to require sending the jury empaneled to hear liability issues home and then selecting a
new, second jury on punitive damages issues – a new jury which would have to somehow be
shown all of the previous testimony from the liability phase. See Hazeldine v. Beverage Media,
Ltd., No. 94 CIV. 3466 (CSH), 1997 WL 362229, at *2-*3 (S.D.N.Y. 1997) (“allowing pre-trial
plaintiffs' net worth; California limitations on such discovery did not apply in federal
court);
x Caruso v. Coleman Co., 157 F.R.D. 344 (E.D. Pa. 1994) (“In products liability action,
plaintiffs would be allowed discovery of defendants’ financial statements and total sales
revenue on the ground they are relevant to the issue of punitive damages; information
regarding punitive damages is as discoverable as information that relates to liability, and
discovery could proceed without prior proof of prima facie case on punitive damages.”).
10
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 11 of 22
discovery [of financial information] avoids the inefficiency of a discovery delay between the
liability and damages phases of trial, as well as the need to assemble a second jury.”).
Finally, Defendant relies upon Guccione v. Flynt, for the proposition that financial
discovery is not appropriate on punitive damages issues here. But that case was sui generis with
peculiar facts that render it inapplicable here. See Guccione v. Flynt, No. 83 CIV. 8020 RWS,
1985 WL 255, at *1 (S.D.N.Y. Feb. 6, 1985) (“It should be apparent to anyone forced to review
these papers and the issues presented by this action that two men with ample resources are
employing lawyers and occupying space and time in the justice system to continue their personal
feud. Regrettably there is to date no apparent basis to avoid the unappetizing task of ruling on
these motions.”). Moreover, in that case, the Court in fact ordered the Defendant to produce
financial information to be turned over to plaintiff’s counsel at the time of trial. See id. at 1.
While that solution may have worked well in that case, it is not satisfactory here. Defendant is
not an established businessperson with regularly-kept disclosure statements reporting income and
related financial information. Instead, Defendant is participant in a covert, sex trafficking
organization with mysterious financial arrangements and apparent, recent efforts to conceal
assets. In such circumstance, Ms. Giuffre is not required to take the Defendant’s net worth
statement at face value, but instead is entitled to receive it well in advance of trial so that she
may investigate its accuracy.
Finally, this Court has previously rejected exactly the same arguments that are being
made here. This Court explained that “[w]hile bifurcation may be the preferred method of
resolving disputed issues of liability and damages, as it prevents prejudice to the defendants by
keeping financial evidence out of the liability phase of the trial, this does not mean that plaintiffs
should be denied pretrial financial discovery.” Hamm v. Potamkin, No. 98 CIV. 7425 (RWS),
1999 WL 249721, at *2 (S.D.N.Y. Apr. 28, 1999). This Court explained that “[a]s far as the
11
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 12 of 22
general timing of financial disclosures is concerned, plaintiffs need not wait until after a finding
of liability or a preliminary finding of damages to obtain discoverable financial information from
defendants.” Id. Those conclusions were well-reasoned then, and remain well-reasoned now.
Just as the Court refused to deny pretrial financial discovery to the plaintiff in that case, it should
not deny Ms. Giuffre pretrial financial discovery here. Pre-trial discovery is the only way to
ensure that Ms. Giuffre will be able to discover all the information that she needs for each of the
three purposes outlined in Part I above.
B. Discovery of Financial Information Should Not Be Delayed until a Ruling on
Defendant’s Summary Judgment Motion.
Defendant also tries to interpose one last stalling argument: That discovery of financial
information should await a ruling on her anticipated summary judgment motion. This argument
should be rejected for two reasons: First, any argument that Defendant might advance in a
summary judgment motion would border on frivolous given the overwhelming evidence
establishing her involvement in sex trafficking. Second, because the trial is drawing near,
waiting for summary judgment motions to be decided would unreasonably compress the time
available to Ms. Giuffre’s counsel to investigate Defendant’s financial information.
Defendant anticipates that she will “likely” file a summary judgment motion which will
include an argument concerning the “substantial truth” of Defendant’s statements. DE 370 at 9.
The Court will notice that even Defendant herself is not prepared to write that she will be able to
prove the truth of her statements – inserting the qualifying word “substantial” in front of the
word “truth,” presumably, because of the avalanche of evidence showing her deep involvement
in Epstein’s sex trafficking. Defendant does not explain, for instance, how she will argue that
the Court should grant summary judgment rather than allow the jury to hear Ms. Sjoberg’s
testimony of how Defendant lured her from her school to have sex with Epstein under the guise
12
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 13 of 22
of answering phones cannot be given to the media.5 Similarly, Defendant fails to explain why a
jury shouldn’t be allowed to consider Mr. Rizzo’s testimony about how Defendant took the
passport of a 15-year-old Swedish girl and threatened her when she refused to have sex with
Epstein.6 And certainly a reasonable jury could reach a verdict in Ms. Giuffre’s favor based
solely on Mr. Alessi’s testimony about how Defendant brought girls over for Epstein,7 or Mr.
Figueroa’s testimony about how Defendant would call him to bring over underage girls, and how
Defendant and Epstein would have threesomes with Ms. Giuffre.8
The Court is familiar with that avalanche of mounting evidence showing sex trafficking,9
which is presumably why Defendant makes only a half-hearted effort to suggest that she has a
serious summary judgment motion based on “substantial truth.” Instead, she gamely suggests
that summary judgment might be proper on grounds that Ms. Giuffre is somehow a “libel-proof”
plaintiff. DE 370 at 9. Here, too, Defendant’s argument that the facts on this issue will be so
5
See McCawley Decl. at Composite Exhibit 1, Johanna Sjoberg’s May 18, 2016 Dep. Tr. at 8-9,
13, 33-35, 142-143(testifying that Defendant recruited her for sex with Epstein under the guise of
answering phones, a job that lasted one day, because her second day Defendant asked her to start
giving massages, and it soon made it clear that Sjoberg’s purpose was to bring Epstein to orgasm
so Defendant didn’t have to all of the time).
6
See McCawley Decl. at Composite Exhibit 2, Rinaldo Rizzo’s June 10, 2016 Dep. Tr. at 52-60
(Defendant’s friend’s house manager, through tears, described how Defendant tried to force a 15
year old Swedish girl to have sex with Epstein through threats and stealing her passport)
7
See McCawley Decl. at Composite Exhibit 3, Juan Alessi’s June 1, 2016 Dep. Tr. at 28, 52-54
(Epstein’s house manager, testified that Defendant was one of the people who procured the over
100 girls he witnessed visit Epstein, and that he had to clean Defendant’s sex toys)
8
See McCawley Decl. at Composite Exhibit 4, Figueroa June 24, 2016 Dep. Tr. Vol. 1 at 96-97
and 103 (Figueroa testified that Plaintiff told him about threesomes with Defendant and Epstein
which included the use of strap-ons); and Vol. 2 at 200 (Figueroa testified that Defendant called
him inquiring if he had found any other girls for Epstein)
9
See, e.g., McCawley Decl. at Composite Exhibit 5, Detective Joseph Recarey’s June 21, 2016
Dep. Tr. at 29-30 (the detective who led the investigation of Epstein, testified that Defendant
procured underage girls for Epstein); David Rodgers’ June 3, 2016 Dep. Tr. at 18, 34-36; see
also Exhibit 6 Excerpted Rodgers Dep. Ex. 1 at flight #s 1433-1434, 1444-1446, 1464-1470,
1478-1480, 1490-1491, 1506, 1525-1526, 1528, 1570 and 1589 (Epstein’s pilot testified that the
passenger listed on his flight log bearing the initials – GM – was in fact Ghislaine Maxwell and
Rodgers was the pilot on at least 23 of the flights in which Defendant flew with Plaintiff), etc.
13
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 14 of 22
clear-cut as to deprive Ms. Giuffre of her right to jury trial borders on frivolous. Ms. Giuffre is a
courageous young woman who has come forward to reveal the broad dimensions of a sex
trafficking ring – a criminal conspiracy that involved Defendant. That fact, alone, is enough to
send the issue of damages to Ms. Giuffre’s reputation to a jury, particularly because any other
approach would “require[] the Court to make factual findings regarding plaintiff's reputation for
a particular trait.” Church of Scientology Int'l v. Time Warner, Inc., 932 F. Supp. 589, 594
(S.D.N.Y. 1996) (refusing to grant summary judgment on a libel proof plaintiff argument), aff'd
238 F.3d 168 (2d Cir. 2001); see also id. citing Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563,
1568 (D.C. Cir. 1984) (“To begin with, we cannot envision how a court would go about
determining that someone's reputation had already been ‘irreparably’ damaged—i.e., that no new
reader could be reached by the freshest libel” (Scalia, J.) (emphasis in original)), vacated on
other grounds, 477 U.S. 242 (1986).
Defendant also predicts that Ms. Giuffre will “have a nearly insurmountable task to
demonstrate that [Defendant] acted with the requisite degrees of malice.” DE 370 at 10
(emphasis added). Of course, the qualifier gives away the game – a “nearly” insurmountable
task is not one on which summary judgment is appropriate. And, in any event, once Ms. Giuffre
proves at trial (as she will) that Defendant was deeply involved in Epstein’s sex trafficking ring,
it becomes obvious that Defendant’s attacks on Ms. Giuffre’s credibility were uttered with
malice. Defendant knew full well, for example, that Ms. Giuffre’s statements that Defendant
was involved in Epstein’s sex trafficking were not “obvious lies.” She knew that because she
had been involved in (among other things) procuring multiple underage girls for Epstein to
sexually abuse10 – including Ms. Giuffre herself.
10
See Message Pads concerning Defendant (GIUFFRE001523; GIUFFRE001427;
GIUFFRE001451; GIUFFRE001454; GIUFFRE001460; GIUFFRE001461; GIUFFRE001464;
14
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 15 of 22
Further proof of malice comes from Defendant’s extraordinary lack of memory about her
involvement in the abuse.11 For instance, Defendant cannot even recall a single flight on
Epstein’s private jet with Ms. Giuffre, even though flight logs show that Defendant had 23
flights with Ms. Giuffre while Ms. Giuffre was underage, and Epstein’s own pilot confirmed
those records.12 And Defendant cannot recall the circumstances under which a photograph was
taken of her, Ms. Giuffre, and Prince Andrew – all inside Defendant’s London apartment. Based
on Defendant’s convenient and near total amnesia about documented incriminating events alone,
a reasonable jury could find that she acted deliberately and maliciously when she arranged for
false and defamatory statements about Ms. Giuffre to be transmitted (literally) around the globe.
Defendant is also less than forthcoming about the evidence that Ms. Giuffre will be able
to produce at trial. Presumably recognizing that the statements her press agent (Ross Gow)
released to the media were false and defamatory, Defendant states that there is “no other indicia
of [Defendant] authorizing any statement [by Gow] regarding [Ms. Giuffre.” DE 370 at 10.
While there are many problems with that claim, perhaps it is enough to point out that
Defendant’s motion was filed on August 12, 2016 – and then, just four days later, on August 16,
2016 – defense counsel disclosed to Ms. Giuffre’s counsel an email revealing quite clearly that
GIUFFRE001465; GIUFFRE001436; GIUFFRE001435; GIUFFRE001472; GIUFFRE001474;
GIUFFRE001492; GIUFFRE001553; GIUFFRE001388; GIUFFRE001555; GIUFFRE001556;
GIUFFRE001557; GIUFFRE001392; GIUFFRE001526; GIUFFRE001530; GIUFFRE001568;
GIUFFRE001536; GIUFFRE001538; GIUFFRE001541; GIUFFRE001546; GIUFFRE001399;
GIUFFRE001402; GIUFFRE001405; GIUFFRE001406; GIUFFRE001449; GIUFFRE001409;
GIUFFRE001410; GIUFFRE001411; GIUFFRE00; etc.); See McCawley Dec. at Sealed
Composite Exhibit 4 Figueroa Dep. Tr. at page 200:5-12 (Defendant called him to bring girls and
he brought 16 and 17 year olds).
11
See, e.g., McCawley Dec. at Exhibit 7, Maxwell’s April 22, 2016 Dep. Tr. at 78-79, 144
(barely recollects Plaintiff at all); see also McCawley Decl. at Exhibit 6, Excerpted Rodgers Dep.
Ex. 1 (flight records evidencing Defendant (GM) flying with Ms. Giuffre
12
See McCawley Dec. at Sealed Composite Exhibit 5, David Rodgers’ June 3, 2016 Dep. Tr. at
18, 34-36; see also Exhibit 6, Excerpted Rodgers Dep. Ex. 1 at flight #s 1433-1434, 1444-1446,
1464-1470, 1478-1480, 1490-1491, 1506, 1525-1526, 1528, 1570 and 1589.
15
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 16 of 22
Defendant and Gow had been coordinating the attacks on Ms. Giuffre. In November 10, 2015,
after this defamation suit was filed, Defendant continued to use Gow as her press agent, as
demonstrated in her email addressed to “Ghislaine [Maxwell] and Philip [Barden, attorney for
Maxwell]”, Gow forwarded a press inquiry from the New York Times and then asked “[p]lease
advise how you wish to respond.” See McCawley Dec. at Exhibit 8. In addition, since Defendant
filed the instant motion, Ms. Giuffre has discovered an article that refers to a yet another of
Defendant’s defamatory statements, not previously known to Ms. Giuffre. It is quoted in an
article from The Sun (online), titled: “Prince Andrew’s pal Ghislaine ‘groped teen girls,’”
located at https://www.thesun.co.uk/archives/news/6754/prince-andrews-pal-ghislaine-groped-
-
teen-girls/.
Presumably, if further evidence of the linkages between Defendant and her press agent
are required, those will be established during the deposition of Gow – which likely explains why
Defendant has refused to make her press agent available for deposition, forcing Ms. Giuffre to
resort to the Hague Convention to try to obtain his testimony. See DE 358, this Court’s Issuance
of a Letter Rogatory.
Finally, waiting until any summary judgment is decided will effectively make it
impossible for Ms. Giuffre to investigate financial issues. As things stand now, summary
judgment motions must be filed by October 28, 2016. Given the ordinary time required for a
response and a reply – and then a further decision by this Court – very little time would remain
for the Ms. Giuffre to evaluate and investigate any financial information that might be provided
by Defendant at that time. Clearly, the better approach is to allow that discovery now. See, e.g.,
Munoz v. Manhattan Club Timeshare Ass'n, Inc., No. 11-CV-7037 JPO, 2012 WL 479429, at *2
(S.D.N.Y. Feb. 8, 2012).
16
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 17 of 22
III. DISCOVERY OF DEFENDANT’S FINANCIAL INFORMATION SHOULD NOT
BE CONFINDED TO A NET WORTH STATEMENT.
Perhaps recognizing that it is inevitable that her financial information will be relevant in
this case, Defendant makes one last argument that discovery of financial information should be
“limited to a sworn affidavit of net worth.” DE 370 at 13. Whatever may have been the
circumstance warranting limitations in other cases, the circumstances here make that approach
highly inappropriate. Once again, it is important to remember that this is not a case involving,
for example, a public-traded company with audited financial statements, or a situation involving
otherwise-incontestable financial information. Cf. Hamm v. Potamkin, No. 98 CIV. 7425
(RWS), 1999 WL 249721, at *3 (S.D.N.Y. Apr. 28, 1999) (for purposes of pre-trial punitive
damages discovery, directing corporate defendants “to produce a financial affidavit containing a
statement of its total net worth and listing its income, assets, and liabilities for the past three
years”).
Instead, this case involves a shadowy criminal organization, involving a kingpin with vast
wealth (Jeffrey Epstein, a reported billionaire), and multi-million dollar transactions to others in
the organization such as Defendant (e.g., the apparent concealed transfer, through an attorney
associated with Epstein, of an apartment to Defendant worth, in 2015, $15,000,000). Given the
strong possibility of wrongdoing lurking here, a mere declaration of net worth promises to be
next to worthless. To provide a simple example, if Defendant were to testify at trial she had a
net worth of only ten million dollars – and not provide information about where she had hidden
the fifteen million dollars associated with the sale of her apartment – then Ms. Giuffre will have
little effective way to challenge the claim. Moreover, as noted above, the record is replete with
multiple examples of Defendant failing to recall obvious and highly incriminating facts. Given
Defendant’s amnesia about important events, it seems obvious that she may similarly be
17
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 18 of 22
forgetful about how many assets she has available to satisfy a judgment in this case –
forgetfulness that can be easily concealed with an unelaborated net worth statement.
In addition, a net worth statement will not give Ms. Giuffre all the evidence to which she
is entitled. For example, Defendant has refused to comply with a discovery request seeking
information about her connection to the Clinton Foundation, claiming that such a request is
“obviously intended to harass and embarrass” her. DE 370 at 11. Nothing could be further from
the truth. It is Defendant who intends to argue at trial that Ms. Giuffre has made inaccurate
-
statements about various interactions with former-President Bill Clinton. Of course, if
Defendant (or any of her organizations) is receiving funding from the Clinton Foundation, that
would provide a clear motive for her to slant testimony on this subject. Ms. Giuffre is entitled to
explore this clear possibility of bias by obtaining information of the financial connections
between Defendant and the Clinton Foundation.
Indeed, upon information and belief, Defendant owns and controls at least two
corporations: Ellmax, LLC, and The TerraMar Project. Ms. Giuffre lawfully served both entities
with a Rule 45 Subpoena requesting documents.13 No response was made by either entity.
Defendant can use both of these entities as vehicles for hiding her assets.
Defendant makes no argument that it will be difficult for her to assemble the information
in question. And given that much of the information requested involves readily accessible
information (such as a bank statement), no such claim is plausible. Instead, her argument
ultimately rests that on the claim that the inquiries involve confidential information that is unduly
intrusive. But at this discovery stage of the proceedings, all of Defendant’s financial information
can be provided to Ms. Giuffre’s counsel under the protection of the existing Protective Order
13
See McCawley Dec. at Composite Exhibit 9, Subpoena to Ellmax LLC; Subpoena to The
TerraMar Project.
18
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 19 of 22
(DE 62). As this Court has previously explained, in allowing discovery of financial information
for punitive damage purposes, “any privacy interests defendants may have in confidential
financial information produced to plaintiffs can be secured by the protective order issued by this
Court.” Hamm v. Potamkin, No. 98 CIV. 7425 (RWS), 1999 WL 249721, at *2 (S.D.N.Y. Apr.
28, 1999). Nothing in Defendant’s motion establishes that Ms. Giuffre should be barred from the
kinds of ordinarily discovery that often accompanies cases in which the financial dealings of a
defendant are discoverable.
This argument is also belied by the fact that Defendant sought, and received, Ms.
Giuffre’s personal financial information. Specifically, she sought any payment information
relating to the media. See Defendant’s First Set of Requests for Production at No. 30. Ms.
Giuffre provided documents responsive to this request, which included her personal bank
-
records. Defendant takes the contradictory and self-serving position that discovery concerning
the personal finances of Ms. Giuffre is appropriate, yet discovery concerning her own finances is
somehow inappropriate.
At the very least, the Defendant should be required to produce a “statement of [her] total
net worth and listing [her] income, assets, and liabilities for the [relevant] years,” as this Court
ordered in a previous case. Hamm v. Potamkin, No. 98 CIV. 7425 (RWS), 1999 WL 249721, at
*3 (S.D.N.Y. Apr. 28, 1999). But because that formulation came from an earlier case involving
reputable corporate entities with (apparently) audited financial statements, the discovery here
should be much broader – and should include all of the significant requests made by Ms. Giuffre.
For example, Defendant should also be required to identify all financial transactions involving
(directly or indirectly) Jeffrey Epstein, the Clinton Foundation, Ellmax LLC, The TerraMar
Project, and any other person listed in the Rule 26 disclosures of either side in this case.
Transactions with potential witnesses in this case are highly relevant to bias and other trial
19
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 20 of 22
issues. And because of concern that the Defendant is concealing assets, she should also be
required to reveal all significant (greater than $10,000) assets or other monetary transfers in since
the beginning of January 1, 2015, as well as all transfers of assets or money outside of this
Court’s jurisdiction, including transfers overseas.
IV. CONCLUSION
Based upon the foregoing, Ms. Giuffre respectfully requests that this Court deny
Defendant’s motion for a protective order barring discovery into her financial situation. In a
contemporaneously-filed motion to compel, Ms. Giuffre also respectfully requests that the Court
grant a motion to compel Defendant to answer questions about her financial information.
Dated: August 22, 2016.
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
20
Case 1:15-cv-07433-LAP Document 1328-23 Filed 01/05/24 Page 21 of 22
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-520214
14
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
21
Case 1:
giuffre-maxwell
Unknown
17 pages
Case 1:15-cv-07433-LAP Document 1218-1 Filed 07/15/21 Page 1 of 17
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S MOTION TO ENFORCE THE COURT’S ORDER AND DIRECT
DEFENDANT TO ANSWER DEPOSITION QUESTIONS FILED UNDER SEAL1
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
Motion to Compel Defendant to Answer Deposition Questions. On June 20, 2016, this Court
Ordered Defendant to sit for a second deposition because her refusal to answer questions posed
in her first Deposition (June 20, 2016 Sealed Order, filed in redacted version at D.E. 264-1). Yet,
during her second deposition, Defendant again refused to answer numerous questions regarding
sexual activity related to Jeffrey Epstein in contravention of this Court’s Order. Accordingly, the
Court should direct her to fully answer the relevant questions.
FACTUAL BACKGROUND
As the Court is aware, this defamation case involves Ms. Giuffre’s assertions that she and
other females were recruited by Defendant to be sexually abused by Jeffrey Epstein under the
guise of being “massage therapists.” See Complaint, DE1, at ¶ 27 (Giuffre “described Maxwell’s
role as one of the main women who Epstein used to procure under-aged girls for sexual activities
1
Defendant has labelled her entire deposition transcript as Confidential at this time.
1
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and a primary co-conspirator and participant in his sexual abuse and sex trafficking scheme”).
Numerous other witnesses, with knowledge of Defendant’s activities, have testified to the same:
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016, Deposition of
Detective Recarey at pg. 29:11-20. “Q. “Okay. During your investigation, what did you
learn in terms of Ghislaine Maxwell's involvement, if any? THE WITNESS: Ms.
Maxwell, during her research, was found to be Epstein's long-time friend. During the
interviews, Ms. Maxwell was involved in seeking girls to perform massages and work at
Epstein's home.”
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See Schultz Decl. at Composite Exhibit 5, Excerpts from June 1, 2016, Deposition of
John Alessi at pg. 28:6-15. “Q. And over the course of that 10-year period of time while
Ms. Maxwell was at the house, do you have an approximation as to the number of
different females -- females that you were told were massage therapists that came to the
house? THE WITNESS: I cannot give you a number, but I would say probably over 100
in my stay there." Id. at pg. 30:15-25 “Q: Did you go out looking for the girls -- A. No.
Q. -- to bring -- A. Never. Q. -- as the massage therapists? A. Never. Q. Who did?
A. Ms. Maxwell, Mr. Epstein and their friends, because their friends relayed to other
friends they knew a massage therapist and they would send to the house. So it was
referrals.”
In response to Ms. Giuffre’s assertions about Defendant recruiting of females for sexual
purposes, Defendant has made the sweeping claim that Ms. Giuffre’s assertions are “entirely
false” and “entirely untrue.” Complaint, DE 1, at ¶ 31. Accordingly, this Court directed as
follows:
.
See Schultz Decl. at Exhibit 6, (Emphasis added).
Despite this instruction from the Court, during her deposition, Defendant refused to
answer many questions related to “sexual activity with or involving Jeffrey Epstein, with or
involving Plaintiff . . . or involving or including massage with individuals Defendant knew to be
or believed were known to might become known to Epstein.” The result was that at a number of
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points throughout her deposition, Defendant refused to answer questions about subjects integral
to this lawsuit, including questions about a student, , who Defendant recruited
from her school to give massages to, and have sex with, Jeffrey Epstein under the guise of hiring
her to answer phones.
For example, Defendant refused to answer questions about recruiting for sex
with Epstein:
Q. So is it fair to say that
MR. PAGLIUCA: This has already been testified to Mr. Boies. We are repeating
testimony now.
MR. BOIES: I think in the context of the witness’ answers, these are fair
questions. Now, I’ve asked you before, if you want to instruct her not to answer,
if you want to go to the judge, we are happy to do that, but I would suggest in the
interest of moving it along, that you stop these speeches.
MR. PAGLIUCA: You are not moving it along is the problem, so maybe we
should call the court and get some direction here, because I am not going to sit
here and rehash the testimony we already gave.
MR. BOIES: That’s fin[e]. [At this point a telephone call was placed to Judge
Sweet’s chambers].
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg.78:17-79:14.
MR. BOIES: So how did it happen, Ms. Maxwell, that
, ended up giving massages to you and Mr. Epstein.
MR. PAGLIUCA: I’m going to instruct you not to answer the question. This has been
previously , the subject of your former deposition, it doesn’t fall into any of the
categories ordered by the court, and so you don’t need to answer that.
Id. at pg.81:15-25.
Defendant’s counsel’s instruction not to answer was improper. This Court’s Order stated:
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:
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In the wake of this specific deposition testimony from , during her own
recent deposition, Defendant continued to refuse to testify about massages and
sexual activity with Epstein:
Q. Did Mr. Epstein pay for the massages that she gave Mr. Epstein?
Mr. Pagliuca: You just asked this question, and I told her not to answer. I will tell her not
to answer again for the same reasons.
Q. Do you know how much Mr. Epstein paid to give massages?
Mr. Pagliuca: Same instruction to the witness. Why do you believe this is within the
scope of the court’s order?
Mr. Boies: Because of the court’s reference to massages, and because I think how much a
girl was paid to give a “massage” goes to whether
there actually was or was not sexual activity involved.
Mr. Pagiluca: The witness has testified there wasn’t.
Mr. Boies: Perhaps it will surprise you, I think it should not, that I do not believe in my
deposition I need to simply accept her characterization without cross-examination. Now
that’s something the judge can decide, but a question as to how much this young girl was
being paid for a “massage,” I think goes directly to the issue of sexual activity.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 82:25-84:6.
Additionally, Defendant refused to answer questions concerning the sexual abuse
involving herself, Mr. Epstein, and , described in a Vanity Fair article:
“What do you have on the girls?” [Epstein] would ask the question over and over again.
What I had “on the girls” were some remarkably brave first-person accounts. Three on-
the-record stories from a family: a mother and her daughters [Maria Farmer, Annie
Farmer, and their mother] who came from Phoenix. The oldest daughter, an artist whose
character was vouchsafed to me by several sources, including the artist Eric Fischl, had
told me, weeping as she sat in my living room, of how Epstein had attempted to seduce
both her and, separately, her younger sister, then only 16. He’d gotten to them because of
his money. He promised the older sister patronage of her art work; he’d promised the
younger funding for a trip abroad that would give her the work experience she needed on
her resume for a place at an Ivy League university, which she desperately wanted - and
would win. The girls’ mother told me by phone that she had thought her daughters would
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be safe under Epstein’s roof, not least because he phoned her to reassure her, and she
also knew he had Ghislaine Maxwell with him at all times. When the girls’ mother
learned that Epstein had, regardless, allegedly molested her 16-year-old daughter, she’d
wanted to fight back.
“I Tried to Warn You about Sleazy Billionaire Jeffrey Epstein in 2003,” Vicky Ward, January 6,
2015, Daily Beast Article (Emphasis added). Defendant would not answer many questions
concerning her role with in the molestation of these girls while she was sharing a house with
and Jeffrey Epstein:
Q. Do you know whether or not
Mr. PAGLIUCA: Can you tell me how that relates to this order, counselor?
MR. BOIES: Yes, I think it goes directly to the sexual activity related to
and what Mr. Epstein was doing with . Again, you can instruct not to
answer.
MR. PAGLIUCA: I’m trying to understand why you are asking these questions before I -
MR. BOIES: I’m asking these questions because these are people who not only have
been publicly written about in terms of the sexual activity that they were put into in
connection with Mr. Epstein, but the person who wrote about them is someone who
talked to the witness about it, and I think that this is more than easily understood cross-
examination.
MR. PAGLIUCA: Your question was, do you know whether or not
MR. BOIES: Yes. And if you let her answer, you will see where it leads. If you won’t let
her answer, the judge is going to determine it. And I just suggest to you that you stop
these speeches and stop debating, because you are not going to convince me not to
follow-up on these questions. If you can convince the court to truncate the deposition,
that’s your right, but all you’re doing is dragging this deposition out.
MR. PAGLIUCA: You have the opportunity to give me a good faith basis why you are
asking these questions.
MR. BOIES: I have given you a good faith basis.
MR. PAGLIUCA: You haven’t.
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MR. BOIES: Then instruct not to answer.
MR. PAGLIUCA: I am giving you the opportunity to say why you are asking the
questions, and why I’m telling her not to answer and I am entitled to know that.
MR. BOIES: You are not entitled to know why I’m asking the question. You are only
entitled to know that it relates to the subject matter that I am entitled to inquire about, and
I don’t think the judge is going to think that, you know, where Mr. Epstein shipped
off to is outside the scope of what I’m entitled to inquire about.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016 Deposition of Ghislaine
Maxwell at pg. 99:6-101:20.
Defendant’s counsel also stopped a line of questioning in which Defendant was asked if
she recalled several girls brought over to give a “massage” to Epstein. The Court
will recall that
Accordingly, at Defendant’s recent deposition, Ms. Giuffre’s counsel attempted to follow up on
this subject:
Q. Have you ever heard the name of ?
A. I don't recollect that name at all.
8
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MR. PAGLIUCA: Mr. Boies, those names are on Exhibit 26, which we have already
gone over and she said she didn't recognize those people, so now we are just repeating
things that we went over.
MR. BOIES: I am in the context of seeing if I can refresh her recollection, because these
are women that , who she also does not recall, brought over to Mr. Epstein's
residences, and I also want to make a very clear record of what her testimony is and is not
right now.
Again, you can instruct her not to answer if you wish.
MR. PAGLIUCA: I'm trying to get to nonrepetitive questions here. You basically asked
the same question three times. Then we get a pile of notes that get pushed up to you, you
read those. Then you ask those three times, and then we go to another question. So it's
taking an inordinately long amount of time and it shouldn't.
MR. BOIES: I think that is a demonstrably inaccurate statement of what has been going
on, and I attribute -- maybe I shouldn't attribute it at all. But if you want to instruct not to
answer, instruct not to answer. If you don't, again, all I will do is request that you cease
your comments. I can't do that. All I can do is seek sanctions afterwards.
See Schultz Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at pg. 154:20-156:10.
Based on Defendant’s refusal to answer questions related to specific girls, Mr. Boies was
forced to discontinue asking questions about these victims.
Defendant also refused to answer questions concerning the “sexual activities of others . . .
involving or including massage with individuals Defendant knew to be or believed might
become known to Epstein,” when she refused to answer a question about the records she kept of
the young girls who would perform massage and sexual activities with Epstein:
Q. Was there a list that was kept of women or girls who provided massages?
MR. PAGLIUCA: This has been previously deposed on. This is not part of the court's
order, I will tell her not to answer.
MR. BOIES: You are going to tell her not to answer a question that says was there a list
of women or girls who provided massages?
MR. PAGLIUCA: She has been previously deposed on this subject.
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MR. BOIES: I think this is squarely in the court's order, but if you instruct her not to
answer, you instruct her not to answer.
MR. PAGLIUCA: We'll find out.
Id. at pg. 184:14-185:6.
Q. “In 2005, were you aware of any effort to destroy records of messages you had taken
of women who had called Mr. Epstein in the prior period?
MR. PAGLIUCA: Don’t answer that question. It’s outside the court’s order.
Id. at pg. 177:5-11.
Ample evidence in this case establishes that not only did Defendant recruit underage girls
for massage and sexual activities with Epstein, but that she participated in calling the girls;
getting other people to bring girls; talking to the girls; taking massages from and leaving
messages about the girls; and scheduling the girls to come over. Accordingly, questions
concerning written records documenting Defendant’s involvement in, and knowledge of, the
girls who “massaged” Epstein is clearly within the ambit of this Court’s Order. For example, a
message from July of 2004 records Defendant, “Ms. Maxwell,” giving a message to Mr. Epstein
as message from ” (an underage girl who was 14 years old on the date of the message)
that “ is available on Tuesday no one for tomorrow.” See GIUFFRE001465.
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See Schultz Decl. at Composite Exhibit 8, Messages Involving Defendant3. In the investigation
of Mr. Epstein’s sex crimes against minors, law enforcement was able to confirm identities of
underage victims through the use of the names recorded these messages, which were recovered
from Epstein’s trash.4 Accordingly, the messages, and the girls described therein, are fully within
the ambit of this Court’s Order.
3
GIUFFRE001523; GIUFFRE001427; GIUFFRE001451; GIUFFRE001454; GIUFFRE001460;
GIUFFRE001461; GIUFFRE001464; GIUFFRE001465; GIUFFRE001436; GIUFFRE001435;
GIUFFRE001472; GIUFFRE001474; GIUFFRE001492; GIUFFRE001553; GIUFFRE001388;
GIUFFRE001555; GIUFFRE001556; GIUFFRE001557; GIUFFRE001392; GIUFFRE001526;
GIUFFRE001530; GIUFFRE001568; GIUFFRE001536; GIUFFRE001538; GIUFFRE001541;
GIUFFRE001546; GIUFFRE001399; GIUFFRE001402; GIUFFRE001405; GIUFFRE001406;
GIUFFRE001449; GIUFFRE001409; GIUFFRE001410; GIUFFRE001411; GIUFFRE00; etc.
4
Palm Beach Police Officer Recarey was deposed about information pulled by police officers
from trash discarded by Epstein from his home:
Q. The next line down is what I wanted to focus on, April 5th, 2005. This trash
pull, what evidence is yielded from this particular trash pull?
THE WITNESS: The trash pull indicated that there were several messages with
written items on it. There was a message from HR indicating that there would be
11
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Finally, Defendant also refused to answer foundational questions that are necessary to
precede questions authorized by this Court, such as:
“In terms of preparing for this deposition, what documents did you review?” See Schultz
Decl. at Composite Exhibit 7, Excerpts from July 22, 2016, Deposition of Ghislaine
Maxwell at 174:2-4.
an 11:00 appointment. There were other individuals that had called during that
day.
Q. And when you would -- when you would see females' names and telephone
numbers, would you take those telephone numbers and match it to -- to a person?
THE WITNESS: We would do our best to identify who that person was.
Q. And is that one way in which you discovered the identities of some of the other
what soon came to be known as victims?
THE WITNESS: Correct.
See Schultz Decl. at Composite Exhibit 3, Excerpts of June 21, 2016 Deposition of Detective
Recarey at pg. 42:14-43:17. Recarey went on to describe the importance of the information:
Q. Did you find names of other witnesses and people that you knew to have been
associated with the house in those message pads?
THE WITNESS: Yes.
Q. And so what was the evidentiary value to you of the message pads collected
from Jeffrey Epstein's home in the search warrant?
THE WITNESS: It was very important to corroborate what the victims had
already told me as to calling in and for work.
Id. at 78:25 -79:15.
12
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In sum, Defendant refused to answer important questions relating to the following topics that
were authorized by this Court’s Order: (1) Defendant’s information relating to and knowledge of
the circumstances of g performing massages and sex acts upon Epstein; (2)
Defendant’s information relating to and knowledge of the circumstances relating to the abuse of
by Defendant and Epstein; (3) Defendant’s information relating to
and knowledge of any lists or records of girls who gave “massages” to Epstein; (4) Defendant’s
involvement with messages (or related documents) showing Defendant’s knowledge of, and
involvement in, the scheduling of underage girls for massage and sex with Epstein, and any
destruction of evidence related to these messages (or related records); (5) foundational questions
that were necessary precedent to asking questions authorized by this Court’s Order; and (6) all
related questions that arise out of any response Defendant provides within the parameters of the
Court’s June 20, 2016, Order.
DISCUSSION
The Court should compel Ms. Maxwell to answer questions in the topic areas where she
refused to answer during her recent deposition. Topics 1 - 4 above are central parts of this case,
and Topics 5 and 6 link directly to central parts of this case. Ms. Giuffre, and now other
knowledgeable witnesses, have explained and testified that Defendant not only had knowledge of
Epstein’s massages and sexual activity with others, but she actively facilitated the sexual
massages through recruiting young females and underage girls for the purpose of “massage” and
sexual activity. And proof that Defendant both had knowledge of, and was involved in, these
schemes and encounters, will further help prove that Defendant’s statements to the press that
Virginia’s allegations were “obvious lies” was itself an obvious lie.
13
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The questions Defendant refused to answer fall squarely within this Court’s earlier order.
Defendant can have no legitimate basis for obstructing the search for truth by refusing to answer.
The Court should, again, compel Defendant to answer all these questions. See Fed. R. Crim. P.
37(a)(3)(B)(i); see, e.g., Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010 WL 1541585, at
*20 (S.D.N.Y. Apr. 12, 2010) (“Under the Federal Rules, when a party refuses to answer a
question during a deposition, the questioning party may subsequently move to compel disclosure
of the testimony that it sought. The court must determine the propriety of the deponent's
objection to answering the questions, and can order the deponent to provide improperly withheld
answers during a continued deposition” (internal citations omitted)). Of course, the party
objecting to discovery must carry the burden of proving the validity of its objections, particularly
in light of “the broad and liberal construction afforded the federal discovery rules . . . .” John
Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014). For
purposes of a deposition, the information sought “need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Chen-
Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013) (citing Fed.R.Civ.P.
26(b)(1)).
Defendant cannot claim that such questions were outside the scope of this Court’s order,
as they directly relate to (1) her knowledge of individuals who provided “massage” to Epstein
and (2) her knowledge of sexual activities of others with or involving Epstein. Defendant’s
knowledge of the individuals involved in the sex/”massages” relating to Epstein, and her
knowledge about the sex/”massage” related to Epstein is precisely what this Court directed her to
answer. See also, Condit v. Dunne, 225 F.R.D. 100, 113 (S.D.N.Y. 2004) (in defamation case,
“Plaintiff is hereby ordered to answer questions regarding his sexual relationships in so far as
14
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they are relevant to a defense of substantial truth, mitigation of damages, or impeachment of
plaintiff.”); Weber v. Multimedia Entm't, Inc., No. 97 CIV. 0682 PKL THK, 1997 WL 729039, at
*3 (S.D.N.Y. Nov. 24, 1997) (“While discovery is not unlimited and may not unnecessarily
intrude into private matters, in the instant case inquiry into private matters is clearly relevant to
the subject matter of the suit. Accordingly, plaintiff Misty Weber shall respond to defendants'
interrogatories concerning her sexual partners . . . .”). Moreover, generally speaking, instructions
from attorneys to their clients not to answer questions at a deposition should be “limited to
[issues regarding] privilege.” Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). In this
case, defense counsel once again ranged far beyond the normal parameters of objections and
gave instructions directly in contravention of this Court’s Order directing Defendant to answer
exactly the type of questions posed to her.
In light of Defendant’s willful refusal to comply with this Court’s Order directing
Defendant to answer questions related to the Court’s June 20, 2016, Order, including topics
enumerated above, Ms. Giuffre also seeks attorneys’ fees and costs associated with bringing this
motion, as well as fees and costs associated with re-taking Defendant’s deposition.
CONCLUSION
Defendant should be ordered to sit for a follow-up deposition and directed to answer
questions regarding the topics enumerated above.
Dated: July 29, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
15
Case 1:15-cv-07433-LAP Document 1218-1 Filed 07/15/21 Page 16 of 17
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-52025
5
This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
16
Case 1:15-cv-07433-LAP Document 1218-1 Filed 07/15/21 Page 17 of 17
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of July, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
17
giuffre-maxwell
Unknown
22 pages
EXHIBIT D
Case 1:17-cv-00616 Document 1 Filed OLl26l77 Page 1 of 21
T'NITED STATES DISTRICT COI]RT
SOUTHERN DISTRICT OF NEW YORK
JA}IE DOE 43,
PlaintiI COMPLAINT
vs. JI]RY TRIAL DEMANDEI)
JEFFREY EPSTEIN, GHTSLAINE CASE NO.:
MAXWELL, SARAH KELLEN, LESLEY
GROFF, AND NATALYA MALYSHEV,
Defendants.
Plaintiff Jane Doe 43, by and through her undersigned counsel, for her
claims against Defendanrc Jeftey Epstein, Ghislaine Maxwell, Sarah Kellen,
Lesley Groff, and Natalya Malyshw, alleges upon personal knowledge with
respect to her own acts and status and upon information and belief as to all other
matters, as follows:
1. This cause of action arises under federal statutes and jurisdiction is
proper under 28 U.S.C. $ 1331.
2. Plaintiff files this Complaint under a pseudonym in order to protect
her identity because this Complaint makes allegations of a sensitive sexual nature
and disclosure of Plaintiffs name publicly will cause firther harm to her.
3. At all times material to the events alleged in this causie of action the
Plaintiffwas a citizen of South Africa residing in New Yorh New York.
EXH!BIT
ztllt 17
Case 1:17-cv-00616 Document 1- Frled OLl26lt7 Page 2 of 2l
4. At all times material to this cause of action Defendant Jeftey Epstein
had multiple residences, including in New York, New York and the United States
Virgtn Islands. He is currently a citizen of the United States and a resident of New
York and the U.S. Virgin Islands.
5. At all times material to this cause of action Defendant Jeffrey Epstein
was an adult male bom in 1953.
6. At all times material to this cause of action Defendant Ghislaine
Maxwell was residing in in New Yorlq New York and was a cittzen of Great
Britain and France.
7. At all times material to this cause of action Sarah Kellen was residing
in New York, New York, and on information and belief, was a citizen of the
United States.
8. At all times material to this cause of action Lesley Groffwas residing
in New York, New York and, on information and belief, was a citizen of the
United States.
9. At all material times, Natalya Malyshev was residing in New Yorlq
New York and, on information and belief, was a citizen of the United States.
10. Including because a substantial part of the events and omissions
glving rise to this cause of action occured in the Southem District of New Yorh
venue is proper in that District. 28 U.S.C. $ 1391(bX2)
Case 1:17-cv-0061-G Document 1 Filed OLl26lL7 Page 3 ot 2L
11. At all times material to this cause of action, Defendants Jeffrey
Epstein, Ghislaine Maxwell, Saratr Kellen, Lesley Grofi and Natalya Malyshw
owed a duty to Plaintiffto freat her in a non-negligent manner and not to commit
or conspire to commit intentional or tortious illegal acts against her.
FACTUAL ALLEGATIONS
12. At all times material to this calrse of action Defendant Jeftey Epstein
was an adult male over 50 years old. Defendant Epstein is known as a billionaire
who uses his extraordinary wealth to commit illegal sexual crimes in violation of
federal and state statutes and to employ numerousl others, including the named
Defendants, to conspire and assist in committing those crimes and additional torts
as well as to protect and conceal his crimes and torts from being discovered.
13. Defendant Epstein displays his enormous wealth,Inwer and influence
to his employees; to the victims procured for sexual purposes; and to the public in
order to advance and carry out his crimes and torts. At all relevant times,
Defendant Epstein owned and continues to own, directly or through nominee
individuals used to conceal his interests, a fleet of airplanes, motor vehicles, boats
and one or more helicopters. He oumed and owns numerolul properties and homes,
including a 51,000-square-foot mansion in Manhattan; a $30 Million, 7,500-acre
ranch in New Mexico; a70-acte private island formerly known as Little St. James
in or near St. Thomas, U.S. Virgtn Islands; a mansion in London, England; a home
Case 1:17-cv-00616 Document 1 Filed 0Ll26lL7 Page 4 ot Zl
in Paris, France; and a mansion in Palm Beach County, Florida. The allegations
herein primarily concern the defendant's conduct while at his townhouse in New
York; on one or more of his private airplanes; and on his private island in the
United States Virgln Islands.
14. Defendant Epstein has a compulsive sexual preference for young
females as young as 13 and as 'rold'r as 25. Defendant had sex with young females
virtually every day and assisted in the dwelopment and execution of a sex
trafficking scheme designed to fulfill his sexual desires.
15. Defendant Maxwell was for decades the highesf-mrrking employee of
the Defendants' sex trafficking enterprise. She herself recruited young females;
oversaw and trained other recruitem on how best to recnrit grds fof sex; developed
and executed schemes designed to recruit young females; and ensured that all
participants of the Defendants' sex tafficking scherre acted in certain specific
ways in order to advance the purposes of the scheme and conceal it from law
enforcement.
16. Defendant Kellen recruited young females and maintained Epstein'q
sex schedule in order to e,nsure that he was not without the sexual favors of young
females for any extended period of time. Defendant Kellen also handled travel
arrangements for the various females being exploited for sexual pu{poses.
4
Case 1:17-cv-00616 Document 1 Filed OU26|I7 page 5 of 21
Defendant Kellen reported directly up the enterprise's line of authority to
Defendant Murwell.
17. Defendant Epstein employed many recruiters of young females. The
nafiue of the Defendants' sex trafficking scheme enabled victims themselves, such
as Defendant Malyshev, to elevate their status to that of a paid recruiter of other
victims. Recruiters were taught by Defendants Epstein and Maxwell to inform
targeted victims that Epstein possessed extraordinary wealth, Ircwer, resources and
influence; that he was a philanthropist who would help female victims advance
their careers and lives; and that the recruits needed only to provide Epstein with
body massages in order to avail themselves of his financial assistance and
influence. In fact, howwer, these representatiors were fraudulent. The vast
majority of girls were required to perform intimate sexual acts at the Defendants'
direction and the Defendants did not help or intend to help advance the victims'
careeN.
18. Defendant Groff coordinated schedules between Defendant Epstein
and the various young females used for sex; made travel arrangements for the gnls;
tended to their living needs; and commruricated with them in order to maintain
their compliance with the rules of behavior imposed upon them by the enterprise.
19. The Defendants, led primarily by Defendants Epstein and Murwell,
fulfilled Epstein's compulsive need for sex with young fernales by preying on their
Case 1:17-cv-00616 Document 1 Filed OLl26lL7 Page 6 of 21
personal, psychological, financial, and related rnrlnerabilities. The Defendants'
tactics included promising the victims money, shelter, fiansportation, emploSment,
admission into educational institutions, educational tuition, and other things of
value in exchange for sex.
20. Defendants' sex tralficking venture and enterprise operated in a
hierarchal strucfire with Defendants Jeffrey Epstein and Ghislaine Ma>rwell at the
top and rurderlings below. Underlings included the other named Defendants as
well as unnarned co-conspirators such as various housekeepers and butlen; an
airplane pilot; and various employees, assistants and associates. Wittingly and
unwittingly, such underlings perfonrred their respective roles with the ptrpose and
effect of insuring that the enterprise supplied young females to Defendant Epstein
and others for sexual purposes. At all times materials to this complainq the
venfire and enterprise was a group of two or more individuals associated in fact
and deed.
21. Defendants Epstein and Maxwell, with help from assistants, associates
and underlings, recruited and procured hundreds of girls over the decades of the
operation of their sche,me. Such recruitnent and procurement included fraud,
coercion, the threat of coercion, ffid a combination of these and similar tactics.
Following the Defendants' recruifinent and procurement of the females to join
Epstein in New York and the U.S. Virgin Islands, the Defendants used fraudulent
Case 1:17-cv-00616 Document 1 Filed OLl26lt7 PageT ot 2t
promises, coercion, and threats of coercion in order to entice young females into
sex and, once sexual activities ensued to cause them to remain in the enterprise.
The Defendants also transported fernales in interstate and foreign cornmerce and in
ways that affected interstate and foreign commerce.
22. Defendants specifically targeted underprivileged, emotionally
rnrlnerable and/or economically disadvantaged young females to joio the
Defendants' e,nterprise.
23. It is unknown exactly how long Defendant Epstein and Maxwell's
afore,mentioned criminal and illegal enterp,rise operatd although it was at least
continuously and actively in operation from the mid-1990's through and including
the calendar year 2007.
24. Defendant Epstein has continued the enterprise and conspiracy up to
the present time.
25. In 2005, Defendant Epstein and numerousl co-conspirators within the
enterprise were the subjects of a Palm Beach, Florida Police Department criminal
investigation which revealed that Defendant Epstein had engaged in sexual
activities with dozens of young teenage children. Each child was lured into
Defendant Epstein's Palm Beach mansion with a promise that she would receive
money for providing him with a body massage, although once there, each child
was made to engage in a sex act in order to recsive the promised compensation.
Case 1:17-cv-00616 Document 1 Filed O1l26lt7 Page 8 of 21
Several were also made to engage in sex with another of Defendant Epstein's
female sexual traveling companions.
26. Ir12006, the Palm Beach Police Deparfinent investigation was turned
over to the FBI and the United States Attorney's Office for the Southem District of
Florida. The United States Attorneyrs Office investigated Defendant Epstein and
his co-conspirators for their violations of numerous federal statutes, including 18
U.S.C. $1591, one of the statutory bases for this complaint.
27. The United States Attomey's investigation continued from 2006
through Septerrber 2007, at which time a Non-Prosecution Agreement was signed
between Jeffrey Epstein and the United States Attorney's Office defeming fedsral
prosecution of Defendant Epstein and his numerous ceconspirators for identified
federal sex crimes against more than 30 minors.
28. From late 2006 through Septerrber 2007, Epstein's team of lawyers
negotiated with the federal govemment in an effort to avoid the filing of the fifty-
three-page draft indictment of Epstein. During these negotiations, Defendant
Epstein decamped from Palm Beach to New York and the U.S. Virgin lslands in
order to convey an image to prosecutors that he and his co-conqpirators had
stopped committing sex crimes.
29. Remarkably, however-as this case will highlight-Defendant
Epstein and his co-Defendants, including the other defendants named herein, did
Case 1:L7-cv-00616 Document 1 Filed OU26|I7 Page 9 of 21
not abandon their sex trafficking enterprise even while they were under state and
federal investigation for crimes commiued in violation of 18 U.S.C. $ 1591, among
other laws, and even as Defendants and their attomeys were busy arguing Epstein's
innocence and publicly defaming his victims as liars. Rather, Defendants merely
changed their style. Instead of targeting local Palm Beach Florida high school
grrls, the Defendants transported young females from other places in the U.S. and
abroad and brought them to Defendant Epstein's mansion in New York and his
private island in the Virgin Islands.
30. In June of 2008, Epstein pleaded gurlty to Florida state felony sex
offenses for procuring a minor for prostitution and soliciting prostitution by
minors.
31. Defendants Epstein and Maxwell developed and implemented a
sophisticated system designed to insulate them from criminal and civil liability by
protecting them from potential testimony of knowledgeable subordinates. The
system included requiring subordinates to sign confidentiality agreements covering
civil and criminal activity; requiring subordinates and victims to refrain from
speaking with law enforcernent officials; requiring them to noti$ Defendant
Epstein's lawyers in the event they (subordinates and victims) were contacted by
law enforcement officials; requiring them to accept the representation of attomeys
paid for by Defendant Epstein; requiring them to invoke the Fiffh Amendment in
Case L:17-cv-00616 Document 1 Frled OU26|L7 Page 10 of 21
resllonse to questions they might be asked by investigators and prosecutors;
requiring them to invoke the Fiflh Amendment in order to refirse to turn over
incriminating and non-incriminating evidence to law enforcement officers;
requiring them to destroy evidence or refuse to reveal knowledge of desfroyed
evidence; and requiring them generally to refise all cooperation with law
enforcement offi cials or investigations.
32. tn 2005, Defe,ndant Epstein and other co-conspirators, aware that law
enforcement offrcials were preparing imminently to execute a search warrant of his
home, removed computer systerns that logged information about Epstein and his
co-conspirators' illegal and criminal conduct; the identities of witnesses; nude
photographs of young females; scheduling books; message pads; tangible items
such as vibrators and toys; and other incriminating matter.
33. Commencing in approximately October 2006 and continuing through
April 2007, Defendants recruited Plaintiff into their sexual enterprise by
fraudulently promising to use their corurections and resources to secure her
admission to an institution of higher education at the expeme of Defendant
Epstein.
34. Defendant Malyshev was working as one of the enterprise's recruiters
of young females when she approached and recruited Plaintiff.
l0
Case 1:17-cv-00616 Document 1 Frled Oil26lt7 page 11 of 21
35. Defendant Malyshev informed Plaintiff that she would introduce
Plaintiff to Defendant Epstein, whom she described as a wealthy philanthropist
who regularly used his wealth, influence and connections to help financially poor
females like Plaintiffachieve their personal and professional goals and aspirations.
36. Defendant Malyshev reported to her superiors, Defendants Kellen,
Groff and Maxwell, and was paid for her recruifinent of young females, including
the recruitnent of Plaintiff.
37. Defendant Malyshev introduced Plaintiff to Defendant Epstein, who
confirmed to Plaintiffthat he would use his wealth and influence to have Plaintiff
admitted into The Fashion Institute of Technology, known as "F.I.T.", in New
York City, or into a similar institute of higher learning offering a curriculum of
fashion industry training. Defendants Maxwell, Kellen and Groff each confirmed
this promise to Plaintiffmany times.
38. Defendant Maxwell told Plaintiff she would need to provide
Defendant Epstein with body massages in order to reap the benefrts of his and
Maxwell's connections. Maxwell and Epstein also threatened Plaintiffthat, while
they had the ability to advance her education and career, they also had the ability to
make sure that she would obtain no formal education or modeling agency contracts
if she failed to provide the sexual favors desired by Defendant Epstein or abide by
the instnrctions given her by Defendan* Epstein and Maxwell.
ll
Case 1:17-cv-00616 Document 1 Flled OU26|L7 page L2 ot 2L
39. Plaintiff reasonably believed that her compliance with Defendants'
demands was crucial to her physical, psychological, financial, and reputational
survival.
40. Defendant Maxwell instucted Plaintiffhow to massage Epstein using
the techniques that he preferred. During Plaintiffs first massage, Defendant
Epstein converted it into a sexual act and made it known to Plaintiff that firther
sex would be required in order for her to obtain the assistance he promised and to
avoid Defendants' threatened retaliation if Plaintitrdid not perfonn as demanded.
41. Defendants Maxwell and Epstein informed Plaintiffthat other young
females in Defendant Epstein's company were there not only to provide ma,ssages,
but also sexual acts.
42. Plaintiff was instnrcted dozens of times to provide body massages to
Defendant Epstein, both at his toumhouse in New York and on his private island in
the U.S. Virgin Islands. Each time she was so instnrcted she was also required to
perform a sexual act with Defendant Epstein. The Defendants fiansported Plaintiff
in interstate and foreign corlmerce, ffid affecting int€rstate and foreign commerce,
for these sexual purposes.
43. During many sexual encounters, Defendant Epstein gave Plaintiffno
option, opportunity or choice not to participate in the prescribed sexual acts.
t2
Case 1:17-cv-00616 Document 1 Filed O\l26lt7 Page L3 of 21
4. Defendant Ma:rwell frequently controlled the assignment, or
"rotation," of Plaintiffand the other young females concerning the time, place and
manner of the sex acts they were told to provide to Defendant Epstein. Defendants
Maxwell and Epstein also required Plaintiff to engage in sex acts with other
females.
45. Defendants Epstein and Maxwell intimidated threatened, humiliated
and verbally abused Plaintiffin order to coerce her into sexual compliance. These
Defendants threatened Plaintiff with serious harm, as well as serious
psychological, financial, and reputational harrn, with the purpose and effect of
compelling Plaintiff to perform and continue performing the demanded
commercial sexual activity.
46. On one occasion, after suffering verbal abuse and threats by
Defendants Epstein, Maxwell, and Kellen, Plaintiff attempted to escape from
Defendant Epstein's private island. A search party led by Defendant Epstein
located her and physically returned her to the main house on the island. Through
these and other actions, the Defendants intended to cause, and did caluie, Plaintiff
to believe that failure to perform the actions they requested would result in
physical restraint and potential harm to her person, as well as harm to her
reputation, ernployability, and stable state of mind.
13
Case 1:17-cv-00616 Document 1 Ftled OUZi|LT page L4 of 2\
47. Defendant Epstein's wealth, influence, power and connections were
used both as an inducement to provide sex (in exchange for promises of support),
and as a means of threatening punishment (should Plaintiffrefirse to comply with
Defendants' instnrctions).
48. In addition to Plaintiffs being trafficked on Defendant Epstein's
private plane, Defendants Groff, Maxwell and Kellen, urith the knowledge of and
instuction by Defendant Epstein, arranged Plaintiffs commercial air travel on
numercusl occasions for the purpose of causing Plaintiffto commit commercial sex
acts.
49. Defendants provided living quarters for Plaintiffat 301 East 66 Street,
New York; a car service for Plaintiff to use as needed; a cell phone; and other
valuable consideration in order to maintain Plaintiffs sexual compliance.
50. The relationship between Plaintiff and Defendants Epstein and
Maxwell was defined and characterizcd by Defendant Epstein's and Defendant
Maxwell's freque,nt and persistent fraudulent rqrresentations that they would
provide Plaintitr with a fonnal education and career advancement if she provided
sex to Defendant Epstein and others in the times, places and manners demanded by
Defendants. Plaintiffreasonably relied on those representations. In fact, however,
those representations were knowingly false, were not acted ulx)n, and were made
by Defendants Epstein and Maxwell solely for the purpose of maintaining
t4
Case 1:17-cv-00616 Document 1 Filed OU26ll7 Page 15 of 21
Plaintiffs financial dependence or, emotional vulnerability to, and sexual
compliance with Defsndants Epstein and Maxwell and their demands. The other
Defendants intentionally repeated those representations and intentionally at0empted
to convince Plaintiffthat the representations were tue and could be relied upon.
51. In January 2007, Defendants sent Plaintiff from the United States to
South Africa in part to recruit, for a promised fee, one or more aspiring female
models supposedly for Defe,ndant Epstein to use as an alleged personal assistant.
Defendants Epstein and Maxwell continuously and frequently demanded that
Plaintiff fulflll this task as a condition of her receiving the education, career and
related benefits promised by Defendants Epstein and Morwell. Based upon
Plaintiffs experience with Defendants, however, she did not believe that the
requested model would be placed in a legitimate position of employment with
Defendant Epstein but would, instea4 be forced into sexual senitude. As a resulg
Plaintiffdeliberately refitsed to perform the recruitment assignment.
52. As part of their ongoing scheme, Defendans inflicted serious
emotional and psychological harm on Plaintiff as a means of coercing her to
continue engaging in commercial sex acts. While Plaintiff was in South Africa,
Defendants Epstein and Maxwell informed Plaintiff that she would not be
permiued to return to the United States to receive her promised education rmless
she underwent a diet and lowered her body weight from 57 kilograms
l5
Case 1-:17-cv-00616 Document 1 Filed OU26|L7 Page 16 of 21
(approximately 125 pounds) to 52 kilograms (ap,proximately ll4 pounds).
Believing she had no practical choice in the matter, Plaintiff atterrpted to comply
with the order but, give,n her physical height and stnrcflre and her existing low
body weight, the diet imposed upon her placed her in serious physical jeopardy,
including kidney malfirnction and extreme emotional andpsychological distess.
53. Defendants Epstein and Maxwell called Plaintiffs parents in South
Africa to tell them that Defendants would take good care of Plaintiff when she
retumed to the United States and that they would use their connections and
influence to have her adrritted to F.I.T. or another well-regarded fashion school.
54. In February of 2N7, Plaintiffreturned to New York and was promptly
ordered by Defendant Maxwell to have sex with Defendant Epstein. Defendants
Maxwell and Epstein fraudulently promised her again that her sexual compliance
would be rewarded with admission to F.I.T. or a comparable college, a promise
which they knew to be false. Plaintiffknew that if she did not comply, Defendants
Maxwell and Epstein would use their lx)wer, influence and connections in order to
eruiure that Plaintiffwas unable to gain adurission to F.I.T. or a comparable school,
and that they would destroy her career as they had destroyed the caxeers of others
who had failed to comply.
55. Defendants Epstein and Maxwell continued to provide Plainfiff with
things of value in exchange for Plaintiffs continued compliance with Epstein's
t6
Case 1:17-cv-00616 Document 1 Filed OLl26lL7 Page L7 ot 2I
sexual demands; however, they failed and refirsed to perform their promises to help
Plaintiff be admitted to F.I.T. or another school, or to provide financial support for
college admission or on-going education, false promises they repeatedly made in
order to coerce her into commercial sex acts.
56. Defendants Epstein and Morwell's sexual demands on Plaintiff
continued while she was in New York or other geographic proximity to the
Defendants. In addition to their requiring Plaintiff to provide Defendant Epstein
with sex acts, Defendants continued to pressure her to lose excessive arrrounts of
body weight and offered her no opportunity to decline or resist their instuctions.
57 . In May, 2N7, Plaintiffleft the United States and did not rehrm.
58. Defendants' representations and promises were all false and
fraudulent. Their threats were considered by Plaintiffto be real and credible. All
such representations, promises and threats were made solely for the purpose of
coercing and otherwise inducing Plaintiff into prolonged sexual compliance.
Defendants knowingly benefitted financially and received things of value as a
result of their participating in their illegal enterprise.
COI]NT I
CAUSE OF ACTION AGNNST DEFEI\DAIITS PTIRSUAI\IT TO 18 U.S.C.
s 159s
59. Plaintiffadopts and realleges paragraphs 1 through 58 above.
t7
Case L:17-cv-00616 Document 1 Filed 01126117 Page 1-8 of 2L
60. Defendants individually and together, within the special maritime and
territorial jurisdiction of the United States, in interstate and foreign corrmerce
and/or affecting intemtate and foreign commerce, knowingly recruited, enticed,
harbored, transported, provided maintaine4 patronized" solicited, threatened"
forced, and coerced Plaintiff to engage in commercial sex acts. Such actions by
Defendants were undertaken with knowledge and/or recHess disregard of the fact
that their threats of force, frau{ coercion, and combinations of such meailt would
be used and were in fact use( in order to cause Plaintiffto engage in commercial
sex acts. In so doirg, Defendants violated 18 U.S.C. $$1591 through 1594 and are
subject to civil causes of action under 18 U.S.C. $ 1595.
6t. Defendants additionally profited from the sex haffrcking of Plaintiff;
obstnrcted investigations of the violations; atterrpted and conspired to violate, and
succeeded in violating, 18 U.S.C. $$ 1591 through 1595, by the commission of the
torts and crimes described in this complaint.
62. Certain property of Defendant Epstein's was essential to the
commission of the federal crimes and torts described herein, including the use of
multiple private aircraft including a Boeing aircraft (of make and model 8-727-
3lH with tail number N908JE) and a Gulfsteam aircraft (of make and model G-
1159B with tail nunber N909JE). Such aircraft, along with other of Defendants'
l8
Case 1:17-cv-00616 Document 1 Filed OU26lt7 Page 1g of 21
property, were used as means and instruments of Defendants'tortious and criminal
offenses and as such, are subject to forfeiture.
63. Additionally, Defendant Epstein's New York mansion, located at 9
East 71st street New Yorh New Yorlq and his private island located in the United
States Vi.grn Islands, were used as means and instnrments of Defetrdants' tortious
and criminal offenses an4 as such, are subject to forfeitrue.
64. As a direct and proximate result of Defendants' commission of the
aforementioned criminal offenses enumerated in Title 18 U.S.C. $ 1591 et. seq.
and the civil remedies provided in $ 1595, Plaintiff has in the past suffered and will
continue to suffer iojrr.y and pain; emotional distress; psychological and psychi-
atric trauma; mental anguish; humiliation; confusion; errbalrassment; loss of self-
esteein; loss of digrrty; loss of enjoyment of life; invasion of privacy; and other
damages associated with Defendants' actions. Plaintiff will incur medical and
psychological expenses. These injuries are pennanent in nature and Plaintiff will
continue to suffer from them in the future. In addition to these losses, Plaintiffhas
incurred atlorneys' fees and will do so in the future.
19
Case 1:17-cv-00616 Document 1 Flled O1.l26lL7 Page 20 ot 2L
WHEREFORE, Plaintiff demands judgment against Defendants for
compensatory damages, attorney's fees, punitive damages and such other and
firther relief as this Court deerns just and proper. Plaintiffhereby demands trial by
jury on all issues tiable as ofrightby a jury.
Dated: January 26,2017
Respectfully Submitte(
BOIES, SCHILLER & FLDO{ER LLP
By: /s/ David Boies
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, New York 10504
T: (9la) 749 8200
E: [email protected]
Alex Boies
Boies Schiller & Flexner LLP
575l-exngton Ave., 76 Fl.
New York, New York 10022
T: (212) 4/16-2300
E: [email protected]
Sigrid McCawl
Meredith Schultz
Boies Schiller & Flexner LLP
401 East Las Olas Blvd., Ste. 1200
, Fort Lauderdale, Florida 33301
T: (954) 3s6-0011
E: [email protected]
E: [email protected]
Pro Hac Yice to befiled
20
Case 1:17-cv-00616 Document 1 Frled OU26|L7 Page 2L of 2L
Bradley J. Edwards
Farmer, Jaffe, Weissing, Edwards,
Fistos & Lehrman, P.L.
425 North Andrews Ave., StE. 2
Fort Lauderdale, Florida 33301
T: (95a) s24-2820
E : brad@pathtojustice. com
Pro Hac Vice to befiled
J. Stanley Pottinger
J. Stanley Pottinger PLLC
Suite 100
49 Twin Lakes Road
South Salenl New York 10590
T: (9la) 763-8333
E: [email protected]
2l
giuffre-maxwell
Unknown
5 pages
Case 1:15-cv-07433-LAP Document 773-4 Filed 03/23/17 Page 1 of 5
EXHIBIT D
Case 1:15-cv-07433-LAP Document 773-4 Filed 03/23/17 Page 2 of 5
President Trump on witness list in Palm Beach lawsuit involving
billionaire pedophile
floridabulldog.org/2017/03/trump-on-witness-list-lawsuit-pedophile/
By Dan Christensen 3/14/2017
By Dan Christensen, FloridaBulldog.org
President Donald Trump is on a list of witnesses for trial in a Palm Beach
lawsuit that pits billionaire pedophile Jeffrey Epstein against a Fort
Lauderdale attorney who represents Epstein’s victims.
The case appears bound for trial this summer following a Feb. 9 ruling by
the Florida Supreme Court in another case that has allowed Fort
Lauderdale lawyer Bradley Edwards’ claim of malicious prosecution
against Epstein to proceed.
President Trump “has been identified as an individual who may have
information relating to these allegations,” said Edwards’ West Palm Beach
attorney Jack Scarola, who placed Trump’s name on a witness list on Aug.
31. “But it’s unlikely that he would ever be called” to appear at trial,
especially now that he’s assumed the presidency.
President Trump and Jeffrey Epstein
Scarola said Trump is one of a number of high-profile individuals whose
testimony might be relevant because they “had a relationship with Epstein
that would have at least exposed them potentially to what was going on inside Epstein’s Palm Beach home …
during the relevant period of time” between 2001-2007.
What was going on in Epstein’s mansion, court papers say, was an ugly child molestation scheme involving sex with
“substantially more” than 40 girls, some as young as 12. A “statement of undisputed facts” filed by Scarola says
Epstein used his staff and his victims to recruit more victims, employing “a pyramid abuse scheme in which he paid
underage victims $200-$300 cash for each other underage victim that she brought to him.”
“There is no evidence the President was involved in Epstein’s schemes,” Scarola said.
Still, the spectacle of a U.S. president being drawn into sordid litigation involving a notorious politically connected
sexual criminal who got an apparent sweetheart deal from then-Miami U.S. Attorney Alex Acosta, now Trump’s
nominee to become U.S. Secretary of Labor, represents a potential political nightmare for the White House.
The White House press office did not respond to requests for comment.
Epstein’s attorney, Tonja Haddad Coleman, declined to comment.
An affidavit about Trump
A little-noticed affidavit by Edwards recounting his knowledge of Trump’s involvement with Epstein is recounted
further below in this story.
Investment banker Epstein, represented by a team of high-powered lawyers, pleaded guilty June 30, 2008 in Palm
Beach Circuit Court to two felonies: procuring a person under 18 for prostitution and offering to commit prostitution.
He served 13 months of an 18-month sentence. The Palm Beach Daily News has reported Epstein served his time
1/4
Case 1:15-cv-07433-LAP Document 773-4 Filed 03/23/17 Page 3 of 5
in “a vacant wing at the Palm Beach County Stockade with liberal work-release privileges.”
Today, Epstein, 64, is a registered sex offender.
In exchange for his plea, U.S. Attorney Acosta agreed not prosecute
Epstein or his employees on federal charges contained in a 53-page
indictment. A 2007 federal non-prosecution agreement with Epstein states,
among other things, that he “knowingly and willfully” conspired with others
to use interstate commerce to “persuade, induce, or entice minor females to
engage in prostitution.”
If convicted of that charge, and others cited in the agreement, Epstein faced
possible prison for life.
Republican Acosta, dean of Florida International University’s Law School
and chairman of U.S. Century Bank, is expected to be asked about his
treatment of Epstein at his Senate confirmation hearing on Wednesday.
Secretary of Labor nominee Alex Acosta
In addition to the malicious prosecution claim against Epstein, attorney
Edwards is also suing the government on behalf of “Jane Doe 1 and Jane
Doe 2” and others under the federal Crime Victims’ Rights Act (CVRA). The lawsuit, filed in 2008, alleges the U.S.
Attorney’s Office under Acosta violated the rights of Epstein’s victims by, among other things, “conspiring” with
Epstein to keep them “in the dark’’ so the plea arrangement could be done without the victims “raising any objection.”
In February 2016, Edwards and co-counsel Paul Cassell filed a still-pending
motion for summary judgment that says Acosta’s successor, Wifredo Ferrer,
“has continued to fight” victims’ efforts “to have the court declare that their
rights were violated.” The motion asks U.S. District Judge Kenneth Marra to
rule that the government violated the victims’ rights and explore possible
remedies. Ferrer stepped down March 3.
Addressing a “terrible injustice”
“Both Brad and Professor Cassell undertook and have continued to prosecute
the CVRA claim to address what they perceive to be a terrible injustice,” said
Scarola. “There is no claim for money damages and there is no prevailing party
provision in the CVRA” that would allow them to collect legal fees for their work
on the case.
Attorney Edwards began representing several of Epstein’s victims while
maintaining a solo law practice in 2008, settling a number of claims for
undisclosed amounts two years later.
Wifredo Ferrer, who stepped down as Miami
For eight months in 2009, however, he worked for Rothstein, Rosenfeldt and U.S. Attorney earlier this month
Adler, the law firm that spectacularly imploded in scandal in November of that
year when it was discovered that founder Scott Rothstein was running a giant Ponzi scheme. Rothstein, now in
prison, enticed investors by falsely claiming that they could buy into lucrative pending settlements in whistleblower,
sexual harassment and other cases.
Edwards’ court papers say he knew nothing of Rothstein’s schemes, and federal authorities later determined
Edwards to have been one of Rothstein’s victims. In 2009, however, Epstein sued Rothstein, Edwards and one of
Edwards’ clients alleging, among other things, civil racketeering. Edwards’ court response: the suit was filed “for the
sole purpose of attempting to intimidate” him and his client.
2/4
Case 1:15-cv-07433-LAP Document 773-4 Filed 03/23/17 Page 4 of 5
Epstein later dropped all his allegations, and Edwards since has turned the case back against him with his
counterclaim of malicious prosecution. The case was on hold for two years pending last month’s Florida Supreme
Court ruling, which reversed a lower court decision that dismissed the accusation on technical grounds.
Edwards won’t discuss either case. But in a little-noticed 2010 affidavit, given a year after the case was filed,
Edwards explained why he thought Trump and other notables involved with Epstein, including former President Bill
Clinton, might have relevant information to provide.
“If you’ve read Brad’s affidavit then you know everything there is to know regarding Trump,” Scarola said.
Does Trump have knowledge of Epstein’s crimes?
In his affidavit, Edwards suggests Trump has personal knowledge of Epstein’s criminality.
“I learned through a source that Trump banned Epstein from his Maralago [Mar-A- Lago] Club in West Palm Beach
because Epstein sexually assaulted an underage girl at the club,” Edwards stated.
The affidavit notes that Trump visited Epstein at Epstein’s West Palm Beach home – “the same home where Epstein
abused minor girls daily.”
A “review of message pads confiscated from Epstein’s home” showed “that Trump
called Epstein’s West Palm Beach mansion on several occasions during the time
period relevant to my client’s complaints,” the affidavit says. Likewise “Epstein’s
phone directory from his computer contains 14 phone numbers for Donald Trump,
including emergency numbers, car numbers, and numbers to Trump’s security guard
and houseman.”
The affidavit goes on to say that one of Epstein’s victims “Jane Doe #102” has
alleged that she was initially approached at Trump’s Mar-A-Lago by Ghislaine
Maxwell and recruited to be Maxwell and Epstein’s “underage sex slave.”
Maxwell, daughter of the late British publishing baron Robert Maxwell, is named in
Fort Lauderdale attorney Bradley
the affidavit as an Epstein associate of interest. She is described in court papers as
Edwards Epstein’s “longtime companion” who helped run his companies and “recruit underage
children” for the pleasure of both Epstein and herself. The affidavit says she attended
the wedding of Chelsea Clinton, Bill and Hillary Clinton’s daughter, in July 2010.
The affidavit goes on to cite the 2009 deposition of Epstein’s brother, Mark Epstein, who “testified that Trump flew on
Jeffrey Epstein’s plane with him (the same plane that Jane Doe 102 alleged was used to have sex with underage
girls).”
Likewise, attorney Edwards cited in his affidavit a 2002 New York Magazine article about Epstein titled, “Jeffrey
Epstein: International Moneyman of Mystery.”
“I’ve known Jeff for fifteen years. Terrific guy,” said Trump, then a prominent, wealthy New York developer. “He’s a lot
of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger
side. No doubt about it – Jeffrey enjoys his social life.”
The subtitle of the article about Epstein: “He’s pals with a passel of Nobel Prize-winning scientists, CEOs like Leslie
Wexner of the Limited, socialite Ghislaine Maxwell, even Donald Trump. But it wasn’t until he flew Bill Clinton, Kevin
Spacey, and Chris Tucker to Africa on his private Boeing 727 that the world began to wonder who he is.”
A second U.S. president
3/4
Case 1:15-cv-07433-LAP Document 773-4 Filed 03/23/17 Page 5 of 5
While ex-President Clinton is not on the witness list for trial, Edwards listed a number of reasons in his affidavit to
believe that Clinton might have relevant information about Epstein. They include:
· Clinton’s “well known” friendship with Ghislaine Maxwell, an alleged enabler of Epstein’s sexual crimes with
young girls.
· Clinton’s highly publicized travel with Epstein and Maxwell aboard Epstein’s private plane to Africa. Flight logs
for “the relevant years 2002-2005 showed Clinton traveling on Epstein’s plane on more than 10 occasions and his
assistant, Doug Band, traveled on many more occasions.” The logs also showed Clinton traveled with other
“employees and/or co-conspirators of Epstein’s that were closely connected to Epstein’s child exploitation and
sexual abuse.”
· “Jane Doe No. 102 stated generally that she was required by Epstein to be exploited not only by Epstein but
also Epstein’s ‘adult male peers, including royalty, politicians, academicians, businessmen and/or other professional
and personal acquaintances’ – categories Clinton and acquaintances of Clinton fall into.”
· “Clinton frequently flew with Epstein aboard his plane, then suddenly
stopped – raising the suspicion that the friendship abruptly ended, perhaps
because of events related to Epstein’s sexual abuse of children.”
· Epstein’s computer contact list “contains e-mail addresses for Clinton along
with 21 phone numbers for him.”
Attorney Scarola would not say why Clinton is not on the Aug. 31 witness list,
stating he is “not at liberty to discuss our litigation strategy.”
Edwards initially sought to depose Trump and Clinton about Epstein, but never
did. Scarola said there was no need to depose them after Epstein dropped his
racketeering and other claims against Edwards.
While there are other notables on the witness list of those with knowledge of
Epstein, including retired Harvard University law professor Alan Dershowitz and
illusionist David Copperfield, there’s only one other politician. That’s ex-New Ex-President Bill Clinton
Mexico Governor and Clinton Administration Secretary of Energy Bill
Richardson.
The affidavit says Epstein’s personal pilot, Larry Morrison, testified in a 2009 deposition about “Richardson joining
Epstein at Epstein’s New Mexico ranch” and that “there was information that Epstein had young girls at his ranch
which, given the circumstances of the case, raised the reasonable inference he was sexually abusing these girls
since he had regularly and frequently abused girls in West Palm Beach and elsewhere.
“Richardson had also returned campaign donations that were given to him by Epstein, indicating that he believed
that there was something about Epstein that he did not want to be associated with,” the affidavit says.
Copyright © 2010Florida Bulldog | Entries (RSS) and Comments (RSS)
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giuffre-maxwell
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21 pages
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 1 of 21
EXHIBIT B
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 2 of 21
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF, VIRGINIA GIUFFRE’S REVISED DISCLOSURE
PURSUANT TO FED. R. CIV. P. 26
COMES NOW the Plaintiff, Virginia L. Giuffre, by and through her undersigned counsel,
and serves this revised disclosure pursuant to Fed. R. Civ. P. 26 and states as follows:
A. Witnesses:
1. Virginia L. Giuffre
c/o Sigrid S. McCawley, Esq.
Boies, Schiller & Flexner LLP
401 East Las Olas Boulevard, Suite 1200
Miami, Florida 33301
Tel: (954) 356-0011
Email: [email protected]
Plaintiff - information regarding Defendant, Ghislaine Maxwell’s conduct that is
the subject of this action
2. Ghislaine Maxwell
c/o Laura A. Menninger, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Email: [email protected]
Defendant in this action.
1
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 3 of 21
3. Juan Alessi
6791 Fairway Lakes Drive, Boynton Beach, FL 33472
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
4. Maria Alessi
6791 Fairway Lakes Drive, Boynton Beach, FL 33472
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
5. Doug Band
President of Teneo Holdings, 601 Lexington Avenue, 45th Floor,
New York, NY 10022, Tel: (212) 886-1600
Was present on flights with Jeffrey Epstein and Ghislaine Maxwell and President
Clinton and may have knowledge of Jeffrey Epstein and Ghislaine Maxwell’s sexual trafficking
conduct and interactions with minors.
6. Gwendolyn Beck
P.O. Box 705, Arlington, VA 22216
(703) 656-6007
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
7. Sophie Biddle
388 W. Carmel Valley Road, Carmel Valley, CA 93924
Tel: (310) 394-7048
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
8. Nadia Bjorlin
c/o Cris Armenta, Esq.
11900 Olympic Blvd., Suite 730, Los Angeles, CA 90064
Tel: (310) 826-2826
2
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 4 of 21
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and Virginia
Guiffre and may have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
9. Kelly Bovino
16694 Via La Costa, Pacific Palisades, CA 90272
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
10. Jean Luc Brunel
c/o Joe Titone, Esq.
621 South East 5th Street, Pompano Beach, FL 33060
Tel: (954) 729-6490
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and Virginia
Guiffre and has information about Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
11. Ron Burkle
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
12. Dana Burns
Address unknown at this time.
Telephone number unknown at this time
Worked for Ghislaine Maxwell and has information about Ghislaine Maxwell’s
recruiting of girls for Jeffrey Epstein.
13. Alyson Chambers
c/o Marshall Dore Louis, Esq.
Sinclair, Louis & Zavertnik, P.A.
40 N.W. 3rd Street, Suite 200, Miami, FL 33128
Tel: (305) 374-0544
Worked for Jeffrey Epstein as a masseuse during the time that Virginia Giuffre was
living and traveling with Jeffrey Epstein and Ghislaine Maxwell, and has information about
Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking conduct.
3
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 5 of 21
14. Maximilia Cordero
Address unknown at this time
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct.
15. Valdson Cotrin
Address unknown at this time
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct.
16. Chauntae Davies
1017 N. Spaulding Avenue, #8, West Hollywood, CA 90056
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and may have
information about Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking conduct and
interaction with underage minors.
17. Teala Davies
1212 N. Clark Street, Apt. #7, West Hollywood, CA 90069
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and may have
information about Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking conduct and
interaction with underage minors.
18. Anouska DeGeorgieou
536 N. Edinburgh Avenue, Los Angeles, CA 90048
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
19. Alan Dershowitz
c/o Richard A. Simpson, Esq.
WILEY REIN, LLP
1776 K Street NW
Washington, D.C. 20006
Tel: (202) 719-7000
4
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 6 of 21
Has knowledge of Defendant’s conduct that is the subject of this action.
20. Ryan Dionne
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
21. Eva Anderson Dubin
1090 N. Lake Way, Palm Beach, FL 33480
1040 5th Avenue, #15, New York, NY 10028
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and has
information about Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking conduct and
interaction with underage minors.
22. Glen Dubin
1090 N. Lake Way, Palm Beach, FL 33480
1040 5th Avenue, #15, New York, NY 10028
Telephone number unknown at this time
Was present on flights with Jeffrey Epstein, Ghislaine Maxwell and has
information about Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking conduct and
interaction with underage minors.
23. Prince Andrew Albert Christian Edward, Duke of York
Buckingham Palace Rd, London SW1A 1AA
Tel: 020 7766 7300
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors, including Virginia Giuffre.
24. Jeffrey Epstein
c/o Tonja Haddad Coleman, Esq.
315 SE 7th Street, Suite 301
Fort Lauderdale, FL 33301
Tel: (954) 467-1223
and
c/o Marty Weinberg, Esq.
20 Park Plaza, Suite 1000, Boston, MA 02116
Tel: (617) 227-3700
5
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 7 of 21
Has knowledge of Defendant’s conduct that is the subject of this action and
knowledge of his sexual trafficking operation and other co-conspirators.
25. Tatiana Espinoza
Address unknown at this time
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors.
26. Frederic Fekkai
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Defendant’s conduct that is the subject of this action.
27. Tony Figueroa
104 Houston School Ct, Red Oak, TX 75154
Telephone number unknown at this time
Has knowledge of Defendant’s conduct that is the subject of this action.
28. Luciano “Jojo” Fontanilla
18 Teneyck Avenue, Valley Stream, NY 11580-4016
917-975-4500
Jeffrey Epstein's staff member in his various homes and may have knowledge of
Defendant and Jeffrey Epstein’s inappropriate conduct with underage girls.
29. Lynn Fontanilla
18 Teneyck Avenue, Valley Stream, NY 11580-4016
Telephone number unknown at this time
May have knowledge of Defendant’s conduct that is the subject of this action.
30. Michael Friedman
53320 Avenida Madero, La Quinta, CA 92253
Telephone number unknown at this time
Former house staff and may have knowledge of Ghislaine Maxwell and Jeffrey
Epstein’s sexual trafficking conduct and interaction with minors.
6
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 8 of 21
31. Rosalie Friedman
53320 Avenida Madero, La Quinta, CA 92253
Telephone number unknown at this time
Former house staff and may have knowledge of Ghislaine Maxwell and Jeffrey
Epstein’s sexual trafficking conduct and interaction with minors.
32. Tiffany Kathryn Gramza
3927 Downey Ct, Simi Valley, CA 93063-2836
Telephone number unknown at this time
May have information about Ghislaine Maxwell and Jeffrey Epstein’s sexual
trafficking conduct and interaction with underage minors
33. Eric Gany
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
34. Amanda Grant
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
35. Lesley Groff
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
36. Claire Hazel
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
7
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 9 of 21
37. Shelly Harrison
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
38. Stephen Kaufman
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
39. Sarah Kensington Vickers formerly Sarah Kellen
50 S. Pointe Dr, Apt. 2304, Miami Beach, FL 33139
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interactions with minors.
40. Tatiana Kovylina
1 Central Park South, #1306, New York, NY 10019-1732
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
41. Banu Kucukkoylu
4712 Admiralty Way, # 383, Marina Del Rey, CA 90292
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
42. Adam Perry Lang
Address unknown at this time
Telephone number unknown at this time
Traveling chef for Jeffrey Epstein and Ghislaine Maxwell and may have knowledge
of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking conduct and interaction with
underage minors.
8
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 10 of 21
43. Shelly Ann Lewis
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
44. Michael Liffman
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
45. Peter Listerman
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
46. Cindy Lopez
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
47. Melinda Lutz
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
48. Cheri Lynch
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
9
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 11 of 21
49. Nadia Marcinko formerly Nadia Marcinkova
301 E. 66th Street, New York, NY 10065-6205
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
50. Todd Meister
101 Seminole Avenue, Palm Beach, FL 38480
Tel: (561) 650-0083
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors
51. Brahakmana Mellawa
Address unknown at this time
Telephone number unknown at this time
House staff who may have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s
sexual trafficking conduct and interaction with underage minors.
52. Jayarukshi Mellawa
Address unknown at this time
Telephone number unknown at this time
House staff who may have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s
sexual trafficking conduct and interaction with underage minors.
53. George Mitchell
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
54. Bill Peadon
617 Piedmont Rd, West Palm Beach, FL 33405-1534
Telephone number unknown at this time
House staff that may have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s
sexual trafficking conduct and interaction with underage minors.
10
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 12 of 21
55. Francis Peadon
617 Piedmont Rd, West Palm Beach, FL 33405-1534
Telephone number unknown at this time
House staff that may have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s
sexual trafficking conduct and interaction with underage minors.
56. Tom Pritzker
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
57. Louella Rabuyo
Address unknown at this time
Telephone unknown at this time
House staff that may have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s
sexual trafficking conduct and interaction with underage minors.
58. Bill Richardson
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
59. Rinaldo Rizzo
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
60. Haley Robson
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
11
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 13 of 21
61. David Rogers
c/o Bruce E. Reinhart, Esq.
Tel: (561) 202-6360
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
62. Adriana Ross formerly Adriana Mucinska
c/o Alan S. Ross, Esq.
Tel: (305) 858-9550
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
63. Johanna Sjoberg
c/o Marshall Dore Louis, Esq.
40 N.W. 3rd Street, Suite 200, Miami, FL 33128
Tel: (305) 374-0544
Worked for Jeffrey Epstein during the time when Virginia Giuffre was living and
traveling with Jeffrey Epstein and Ghislaine Maxwell. Johanna Sjobjerg was also present at an
occasion with Prince Andrew, Ghislaine Maxwell, and Virginia Giuffre when Ms. Giuffre was a
minor.
64. Kelly Spamm
Address unknown at this time
Telephone number unknown at this time
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
65. Emmy Taylor
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
66. Evelyn Valenzuela
Address unknown at this time
Telephone number unknown at this time
12
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 14 of 21
May have knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct.
67. Larry Visosky
c/o Bruce E. Reinhart, Esq.
Tel: (561) 202-6360
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
68. Leslie Wexner
c/o John W. Zeiger, Esq., Zeiger, Tigges & Little LLP
41 South High Street, Suite 3500, Columbus, Ohio 43215
Tel: (614) 365-9900
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors..
69. Igor Zinoview
Address unknown at this time
Telephone number unknown at this time
Has knowledge of Ghislaine Maxwell and Jeffrey Epstein’s sexual trafficking
conduct and interaction with underage minors.
70. All other then-minor girls, recruited by Ghislaine Maxwell, whose identities Ms.
Giuffre will attempt to determine, with whom Defendant, Ghislaine Maxwell and
Jeffrey Epstein, have engaged in sexual activity.
71. All pilots, chauffeurs, chefs, and other employees of either Defendant Maxwell or
Jeffrey Epstein with knowledge of Defendant and Jeffrey Epstein’s inappropriate
conduct with underage girls.
72. All staff and employees at the Mar-a-Lago Club during 1999-2002.
73. All other witnesses learned through discovery process.
B. Exhibits:
1. Palm Beach Police Department report and documents contained within Jeffrey
Epstein's criminal files, attached hereto as Exhibit 1.
13
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 15 of 21
2. March 10, 2011 Statement on behalf of Ghislaine Maxwell by Media agent Ross
Gow, attached hereto as Exhibit 2.
3. September 3, 2008 Victim Notification Letter, attached hereto as Exhibit 3.
4. May 1, 2009 Complaint in Jane Doe No. 102 v. Jeffrey Epstein, CIV-09-80656, in
the Southern District of Florida, attached hereto as Exhibit 4.
5. FBI 302 Statement, attached hereto as Exhibit 5.
6. Flight Logs, attached hereto as Composite Exhibit 6.
7. Message Pads from Law Enforcement from trash pull of Jeffrey Epstein’s Palm
Beach home, attached hereto as Exhibit 7.
8. Jeffrey Epstein’s Phone Book, also referred to as his “Black Book,” attached hereto
as Exhibit 8.
9. Deposition of Sarah Kellen, attached hereto as Composite Exhibit 9.
10. Deposition Transcripts of Juan Alessi, attached hereto as Exhibit 10.
11. Deposition Transcripts of Alfredo Rodriguez, attached hereto as Exhibit 11.
12. January 2, 2015 Corrected Joinder Motion [DE 280] filed in the CVRA action
pending in the Southern District of Florida, attached hereto as Exhibit 12. [All
paragraphs between “The Government then concealed from Jane Doe No. 3
the existence of the NPA (pg. 3) and “The Government was well aware of Jane
Doe No. 3 when it was negotiating the NPA” (pg. 6) were stricken by Judge
Marra.]
13. January 21, 2015 Declaration of Jane Doe No. 3 filed in the CVRA action pending
in the Southern District of Florida, attached hereto as Exhibit 13. [Paragraphs 4, 5,
7, 11, 13, 15, 19-53, and 59 were stricken by Judge Marra]
14. February 6, 2015 Declaration of Jane Doe No. 3 filed in the CVRA action pending
in the Southern District of Florida, attached hereto as Exhibit 14. [Paragraphs 7-
12, 16, 39 and 49 were stricken by Judge Marra.]
15. November 25, 2015 Affidavit of Virginia Giuffre, filed in the Bradley Edwards and
Paul Cassell v. Alan Dershowitz matter, pending in the Seventeenth Judicial
Circuit, Broward County, Florida, attached hereto as Exhibit 15.
16. Virginia Roberts’ passport, attached hereto as Exhibit 16.
17. Judge Thomas Lynch’s January 12, 2016 Confidentiality Order regarding Virginia
Giuffre’s deposition, attached hereto as Exhibit 17.
18. Documents produced and bates labelled Non-Party VR 000001 – Non-Party VR
000644, in the Bradley Edwards and Paul Cassell v. Alan Dershowitz matter,
14
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 16 of 21
pending in the Seventeenth Judicial Circuit, Broward County, Florida, attached
hereto as Exhibit 18.
19. Victims Refuse Silence Articles of Incorporation and Amendment, attached hereto
as Composite Exhibit 19.
20. Victims Refuse Silence By-laws, attached hereto as Exhibit 20.
21. Victims Refuse Silence 2016 Annual Report, attached hereto as Exhibit 21.
22. January 3, 2015 Daily Mail article: “Harvard Law Professor Named Alongside
Prince Andrew in ‘Sex Slave’ Case Accuses Alleged Victim of ‘Making Up
Stories,’” attached hereto as Exhibit 22.
23. January 3, 2015 Press Statement issued by Ross Gow to Express set forth in
“Ghislaine Maxwell: I was not a madam for paedophile,” attached as Exhibit 23.
24. January 4, 2015 Statement by Ghislaine Maxwell to New York Daily News
Reporter “Alleged Madam Accused of Supplying Prince Andrew With Underage
Teen for Sex Spotted in NYC – As He’s Seen Cutting Swiss Vacation Short to Face
Queen,” attached hereto as Exhibit 24.
25. February 1, 2015 Mirror article: “Prince Andrew’s Pal Ghislaine Maxwell May Sue
Over Madam Allegations,” attached hereto as Exhibit 25.
26. September 23, 2007 Red Ice Creations Article “Prince Andrew’s Friend, Ghislaine
Maxwell, Some Underage Girls, and A Very Disturbing Story,” attached hereto as
Exhibit 26.
27. Photographs, attached hereto as Exhibit 27.
28. April 13, 2010 Deposition Transcript of Nadia Marcinkova, attached hereto as
Exhibit 28.
C. Computation of damages:
1. Physical, psychological and psychiatric injuries and resulting medical expenses – in
an amount of approximately $ 102,200 present value.
a. Computation Analysis:
i. Giuffre has had to receive treatment for the psychological harm as a
result of Maxwell’s conduct towards Giuffre.
ii. The average annual expenditures for mental health services for adults
18-64 in the United States is $1,751.
15
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iii. Giuffre needs continuing care as a result of the harm she has suffered.
Ms. Giuffre was born August 9, 1983 and was 31.4 years old at the
beginning of 2015 when the alleged harm occurred. The average
remaining life expectancy for a 31 year old female is 51.1 years.
iv. Based on a remaining life expectancy of 51.1 years, annual healthcare
cost growth of 3.3% and a discount rate of 2.7%, the present value of
expected treatment costs is $102,200 as of 1/1/2015.
b. Supporting Evidence:
i. Ms. Giuffre is in the process of collecting records from her physicians
ii. Ms. Giuffre’s testimony
iii. Ms. Giuffre is in the process of retaining an expert to calculate
damages, and will provide further information through expert
disclosure.
2. Past, present and future pain and suffering, mental anguish, humiliation,
embarrassment, loss of self-esteem, loss of standing in the community, loss of
dignity and invasion of privacy in her public and private life not less than
$30,000,000.00.
a. Computation Analysis
i. Under New York law, defamation per se as alleged in this case
presumes damages and special damages do not need to be plead and
proven. See Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163,
179 (2nd Cir. 2000) (Second Circuit holding that ‘[i]f a statement is
defamatory per se, injury is assumed. In such a case ‘even where the
plaintiff can show no actual damages at all, a plaintiff who has
otherwise shown defamation may recover at least nominal damages’
and the Second Circuit also confirmed an award of punitive
damages). Ms. Giuffre has been severely damaged by the defamation
of the defendant, by calling her claims of sexual abuse “obvious lies”.
The defamation caused Ms. Giuffre to re-live the sexual abuse she
previously endured. Ms. Giuffre has suffered and continues to suffer
from the pain, mental anguish, humiliation, embarrassment, loss of
self-esteem, loss of standing in the community, loss of dignity and
invasion of privacy in her public and private life. The computation of
this amount is in the province of the jury but Ms. Giuffre contends,
including but not limited to, awards in other similar matters, that the
16
Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 18 of 21
amount is not less than $30,000,000.00. Ms. Giuffre is in the process
of retaining an expert, and will provide further information through
expert disclosure.
b. Supporting Evidence
i. Ms. Giuffre’s testimony
ii. Witness testimony
iii. Awards in similar matters
iv. Ms. Giuffre is in the process of retaining an expert, and will provide
further information through expert disclosure.
3. Estimated lost income of $180,000 annually. Present value of $3,461,000 to
$5,407,000.
a. Computation Analysis
i. Ms. Giuffre’s estimated compensation capacity is $180,000 annually.
Ms. Giuffre was born August 9, 1983 and was 31.4 years old at the
beginning of 2015 when the alleged injury occurred. Her expected
remaining work life based on mortality and probability of continued
work was 20.2 years. Based on these factors, a 2% annual growth rate
and a 2.4% discount rate, the present value of lost compensation is
$3,461,000 as of 1/1/2015.
ii. Alternatively, if Ms. Giuffre is assumed to work until a normal
retirement age of 65, or 33.6 years from her age at the beginning of
2015, and based on an annual growth rate of 2.0% and a discount rate
of 2.7%, the present value of lost compensation is $5,407,000 as of
1/1/2015.
b. Supporting Evidence
i. Materials regarding compensation and work life expectancy
1) 2010 Life Table for Females, National Vital Statistics Report,
November 6, 2014, U.S. Department of Health & Human
Services, Centers for Disease Control & Prevention, National
Center for Health Statistics.
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Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 19 of 21
2) “Calculation of Work life Expectancy Using the Life,
Participation, Employment Method,” Vocational Econometrics,
Inc.
3) Consumer Price Index for Urban Wage Earners and Clerical
Workers, United States Department of Labor, Bureau of Labor
Statistics.
4) Federal Reserve Statistical Release H.15, 1/5/2015.
ii. Ms. Giuffre’s testimony
iii. Ms. Giuffre is in the process of retaining a damages expert and will provide
further information through expert disclosures.
4. Punitive Damages - to be based upon all relevant factors, including the egregious
nature of Defendant, Ghislaine Maxwell’s conduct and the need for a large award to
punish and deter conduct in view of the vast wealth of Defendant Maxwell, in an
amount not less than $50,000,000.00.
a. This calculation is in the province of the jury.
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Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 20 of 21
Dated March 11, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Ellen Brockman
Boies Schiller & Flexner LLP
575 Lexington Ave
New York, New York 10022
(212) 446-2300
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Case 1:15-cv-07433-LAP Document 76-2 Filed 03/31/16 Page 21 of 21
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the above and foregoing
Disclosure Pursuant to Fed. R. Civ. P. 26 has been provided by United States mail and electronic
mail to all counsel of record identified below, on this 11th day of March, 2016.
Laura A. Menninger, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
By: /s/ Sigrid McCawley______
Sigrid McCawley
20