gov.uscourts.nysd.447706.1256.11.pdf

Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 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’S AMENDED1 CORRECTED2 REPLY IN SUPPORT OF MOTION TO EXCEED PRESUMPTIVE TEN DEPOSITION LIMIT Sigrid McCawley BOIES, SCHILLER & FLEXNER LLP 401 E. Las Olas Blvd., Suite 1200 1 Pursuant to conferral with opposing counsel, Plaintiff has revised the first paragraph of this brief, as well as the second-to-last paragraph of Section I of this brief out of a concern Defendant raised with the use of the term “set” when referring to depositions. In an abundance of caution, to avoid unnecessary disputes and waste of this Court’s time, the undersigned agreed to revise the brief to remove the language in question. The remainder of this brief is unchanged. 2 On June 13, 2016, Ms. Giuffre filed her Reply in Support of her Motion to Exceed the Presumptive Ten Deposition Limit (DE 203). This brief contained excerpt from Rinaldo Rizzo’s “rough” deposition transcript, as the final transcript had not yet been completed by the stenographer. On June 14, 2016, the stenographer issued the “final” deposition transcript, and Ms. Giuffre hereby files the final transcript citations and excerpts to replace the “rough” transcript that accompanied her supporting Declaration (DE 204-2). There are no other changes to this document. Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 2 of 15 Ft. Lauderdale, FL 33301 (954) 356-0011  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 3 of 15 TABLE OF CONTENTS Page I. THE PROPOSED DEPOSITIONS ARE IMPORTANT TO THE FUNDAMENTAL CLAIMS AND DEFENSES IN THIS CASE, AND NONE ARE DUPLICATIVE. ........ 1 II. MS. GIUFFRE IS SEEKING HIGHLY RELEVANT TRIAL TESTIMONY. .................. 6 III. MS. GIUFFRE’S REQUEST IS TIMELY. ........................................................................ 9 i  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 4 of 15 TABLE OF AUTHORITIES Page Cases Atkinson v. Goord, No. 01 CIV. 0761 LAKHBP, 2009 WL 890682 (S.D.N.Y. Apr. 2, 2009) ................................3 Gen. Elec. Co. v. Indem. Ins. Co. of N. Am., No. 3:06-CV-232 (CFD), 2006 WL 1525970 (D. Conn. May 25, 2006) ..................................9 LiButti v. United States, 107 F.3d 110 (2d Cir. 1997).......................................................................................................8 Rules Fed. R. Evid. 404(b) .........................................................................................................................7 Fed. R. Evid. 415(a) .........................................................................................................................7 ii Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 5 of 15 Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 6 of 15 Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 7 of 15 Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 8 of 15 Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 9 of 15  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 10 of 15 recruited her and other young females for sex with Jeffrey Epstein. The people she now seeks to depose are all witnesses who can testify to Defendant working essentially as a madam for Jeffrey Epstein, recruiting young females for Epstein, or corroborate other important aspects of her statements. The fact that Defendant recruited girls, some of which were underage, for Epstein makes Ms. Giuffre’s claim that she was also recruited by Defendant to ultimately have sex with Epstein and others more credible – and that Defendant’s denials of any involvement in such recruiting is a bald-faced lie. Witnesses will testify that Defendant’s recruitment and management of the girls for Jeffrey Epstein was a major aspect of Defendant’s job, and that Ms. Giuffre’s account of her sexual abuse and Defendant’s involvement accords perfectly with other witnesses’ accounts of what Defendant’s job was for Epstein.7 That other young females were similarly recruited by the Defendant is evidence that Ms. Giuffre is telling the truth about her experiences – and thus direct evidence that Defendant defamed her when calling her a liar. Clearly, if Ms. Giuffre can establish that Defendant’s modus operandi was to recruit young females for Epstein, that helps corroborate Ms. Giuffre’s own testimony that Defendant recruited her for the same purposes and in the same manner. Although the Court need not make a final ruling on this evidentiary issue now, Rule 404(b) itself makes such testimony admissible. See Fed. R. Evid. 404(b) (other act “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”). Indeed, even more specifically than the general provisions of Rule 404(b), Rule 415 makes these other acts admissible, due to 7 Defendant’s specious suggestion that Ms. Giuffre heard about the other girls whom she recruited for sexual purposes and then decided to “hop on the band wagon” (Defendant’s Resp. at 8 n.7) tacitly admits that Defendant procured a “band wagon” of girls for Jeffrey Epstein to abuse. Moreover, Defendant cannot refute the documentary evidence that she was on Epstein private jet with Ms. Giuffre over 20 times while Ms. Giuffre was a minor – flights that Defendant is, quite conveniently, now unable to recall. Motion at 5-8. 6  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 11 of 15 the fact that those involved in sexual abuse of minors have a strong propensity for repeating those crimes. See Fed. R. Evid. 415(a)( (“In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.”). Entirely apart from corroborating Ms. Giuffre’s own individual abuse, however, Defendant fails to recognize that in calling Ms. Giuffre a “liar”, she was attacking all aspects of Ms. Giuffre’s account – including Ms. Giuffre’s statements that Defendant served generally as a recruiter of girls for Epstein and that Epstein sexually abused the underage girls that were brought to him. Thus, in this defamation case, the testimony of these witnesses are admissible not only to bolster Ms. Giuffre’s testimony about her individual abuse, but because they are simply part of the body of statements whose truth or falsity is at issue in this case. In addition, one of the witnesses that Ms. Giuffre seeks to depose is registered sex offender Jeffrey Epstein, who stands at the center of the case. Indeed, some of the most critical events took place in the presence of just three people: Ms. Giuffre, defendant Maxwell, and Epstein. If Epstein were to tell the truth, his testimony would fully confirm Ms. Giuffre’s account of her sexual abuse. Epstein, however, may well attempt to support Defendant by invoking the Fifth Amendment to avoid answering questions about his sexual abuse of Ms. Giuffre. Apparently privy to her former boyfriend Epstein’s anticipated plans in this regard,8 Defendant makes the claim that it would be a “convoluted argument” to allow Ms. Giuffre to use those invocations against her. Defendant’s Resp. at 3. Tellingly, Defendant’s response brief cites no authority to refute that proposition that adverse inference can be drawn against co- conspirators. Presumably this is because, as recounted in Ms. Giuffre’s opening brief (at pp. 20- 8 In discovery, Defendant Maxwell has produced several emails between Epstein and herself discussing Ms. Giuffre. 7  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 12 of 15 22), the Second Circuit’s seminal decision of LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997), squarely upheld the drawing of adverse inferences based on a non-party’s invocation of a Fifth Amendment right to remain silent. The Second Circuit instructed that, the circumstances of given case, rather than status of particular nonparty witness, determines whether nonparty witness' invocation of privilege against self-incrimination is admissible in course of civil litigation. Id. at122-23. The Second Circuit also held that, in determining whether nonparty witness’ invocation of privilege against self-incrimination in course of civil litigation and drawing of adverse inferences is admissible, court may consider the following nonexclusive factors: (1) nature of witness’ relationship with and loyalty to party; (2) degree of control which party has vested in witness in regard to key facts and subject matter of litigation; (3) whether witness is pragmatically noncaptioned party in interest and whether assertion of privilege advances interests of witness and party in outcome of litigation; and (4) whether witness was key figure in litigation and played controlling role in respect to its underlying aspects. Id. at 124-25. Ms. Giuffre will be able to establish that all these factors tip decisively in favor of allowing an adverse inference. Accordingly, her efforts to depose Epstein, Marcinkova, and Kellen seek important information that will be admissible at trial. III. MS. GIUFFRE’S REQUEST IS TIMELY. Defendant also argues that this motion is somehow “premature.” Defendant’s Resp. at 2-3. Clearly, if Ms. Giuffre had waited to file her motion until later, Defendant would have argued until the matter came too late. The motion is proper at this time because, as of the date of this filing, fact discovery closes in 17 days (although Ms. Giuffre has recently filed a motion for a 30-day extension of the deadline). In order to give the Court the opportunity to rule as far in advance as possible – thereby permitting counsel for both side to schedule the remaining depositions – Ms. Giuffre brings the motion now. She also requires a ruling in advance so that 8  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 13 of 15 she can make final plans about how many depositions she has available and thus which depositions she should prioritize. 9 An additional reason this motion is appropriate now is that, despite Ms. Giuffre’s diligent pursuit of depositions, many witnesses have cancelled their dates, failed to appear, or wrongfully evaded service. These maneuvers have frustrated Ms. Giuffre’s ability to take their depositions in a logical and sequential fashion, complicating the planning of a deposition schedule. For example, on April 11, 2016, Ms. Giuffre served notice on Defendant’s counsel for the deposition of Rinaldo Rizzo, setting it for May 13, 2016. Nearly a month later, just a few days before that properly noticed deposition, Defendant’s counsel requested that it be rescheduled, and, therefore, that deposition did not take place until June 10, 2016. Additionally, three other important witnesses evaded Ms. Giuffre’s repeated efforts to serve them. It took Ms. Giuffre’s motion for alternative service (DE 160) to convince Jeffrey Epstein to allow his attorney to accept service of process. The Court also has before it Ms. Giuffre’s motion to serve Sarah Kellen and Nadia Marcinkova by alternative service. These witnesses’ evasion of service delayed the taking of their depositions, and, as of the date of this filing, none have been deposed yet. CONCLUSION For all these reasons, Ms. Giuffre should be allowed to take three more depositions than the presumptive ten deposition limit – a total of thirteen depositions. Dated: June 14, 2016. 9 Defendant tries to find support for her prematurity argument in Gen. Elec. Co. v. Indem. Ins. Co. of N. Am., No. 3:06-CV-232 (CFD), 2006 WL 1525970, at *2 (D. Conn. May 25, 2006). However, in that case, the Court found a motion for additional depositions to be premature, in part, because “[d]iscovery has not even commenced” . . . and the moving party “ha[d] not listed with specificity those individuals it wishes to depose.” Of course, neither of these points applies in this case at hand: the parties are approaching the close of fact discovery, and Ms. Giuffre has provided detailed information about each individual she has deposed already and still seeks to depose. 9  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 14 of 15 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 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) 585-520210 10 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. 10  Case 1:15-cv-07433-LAP Document 1256-11 Filed 05/03/22 Page 15 of 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 14th day of June, 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 11