gov.uscourts.nysd.447706.1137.16_2.pdf

Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 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 REPLY IN SUPPORT OF MOTION TO EXCEED PRESUMPTIVE TEN DEPOSITION LIMIT Sigrid McCawley 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 1137-16 Filed 10/22/20 Page 2 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 1137-16 Filed 10/22/20 Page 3 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 1137-16 Filed 10/22/20 Page 4 of 15 Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this reply in suppo1i of her Motion to Exceed Presumptive Ten Deposition Limit. The motion should be granted because Ms. Giuffre has shown good cause for needing to exceed the ten deposition limit and in light of recent developments, Ms. Giuffre has streamlined her request, and now seeks only a total of three additional depositions. Notably, while Defendant contests Ms. Giuffre's motion, Defendant has herself unilaterally - and without seeking any Court approval - set twelve witnesses for deposition in this matter. In contrast to Defendant's unilateral action, Ms. Giuffre has properly sought this Comi's pennission. The Comi should grant her motion and allow her to take the three additional depositions. I. THE PROPOSED DEPOSITIONS ARE IMPORTANT TO THE FUNDAMENTAL CLAIMS AND DEFENSES IN THIS CASE, AND NONE ARE DUPLICATIVE. Defendant argues that the depositions Ms. Giuffre seeks to take are somehow "duplicative" of each other. Even a quick reading of the Defendant's pleading makes clear this is untiue. Defendant repeatedly gives her own nan ow view of what existing witnesses have said . For example, Defendant argues that - "did not conoborate that [Ms. Giuffre] is telling the tiuth." Defendant's Response at 5. Defendant's characterization is untiue.1 But, as the mere 1  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 5 of 15 fact of this dispute confinns, this case is going to be hotly contested and the weight of the evidence on each side is going to be vitally impo1iant. The Comi is well aware of many other civil cases where the paiiies have taken far more than ten depositions by mutual agreement. Defendant's refusal to agree to a few more depositions here is simply an effo1i to keep all the relevant facts from being developed. Since Ms. Giuffre filed her initial motion seeking seven additional deposition, she has worked diligently to tiy to sti·eamline the necessaiy depositions and has discovered new infonnation concerning witnesses and their knowledge of the claims in this case. Accordingly, Ms. Giuffre cmTently brings before this Comi a significantly sho1ier list2 of witnesses she needs to depose to prove her claim, with some alterations. To be clear, Ms. Giuffre has naITowed her request and is now only seeking an additional three depositions from the Court as follows: For descriptions concerning the depositions ah-eady taken (Defendant; - ; a n d - and those yet to be taken (Mr. Epstein; , Ms. Giuffre references and inco1porates her descriptions in the moving brief. The only remaining witness is - . His deposition is necessaiy for the following reason: epos1hons et 1s - ven mg Ms. Gm ·e's account o emg recrn1te y De en nt or sex with Epstein - that Defendant is hying avoid. However, multiple other witnesses have testimony that suppo1is Ms. Giuffre 's claims, in different and various ways, and Ms. Giuffre needs that testimony to prove her defaination claim against Defendant. 2 Ms. Giuffre is no Ion er seeking the deposition testimony o 2  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 6 of 15 • . . Giuffre 's comments about he "obvious lies" to which she was refening in her public s . e sis of this suit. Apat1 from the Defendant and Mr. Epstein, a key person who can provide infonnation about his close re at10ns and Mr. Epstein and disapprove Ms. Maxwell's claims. Ms. Giuffre is still working diligently with opposing counsel, these witnesses, and their attorneys on scheduling, as well as identifying other witnesses who may have factual info1mation about the case. But, at this time, she seeks this Court's approval for an additional three depositions - depositions that will not consume the full seven hours presumptively allotted. All three prongs of the three-factor test to evaluate a motion for additional depositions strongly suppo11 granting the motion. Atkinson v. Goord, No. 01 CIV. 0761 LAKHBP, 2009 WL 890682, at *1 (S.D.N.Y. Apr. 2, 2009). First, as reviewed in detail on a witness-by-witness basis above, the discove1y sought is not duplicative. The proposed deponents include the individual who assisted in making the defamato1y statement, women Defendant Maxwell hired to recrnit girls for Jeffrey Epstein, an individual with intimate knowledge of Defendant and Epstein's sexual trafficking ring, other victims of Jeffrey Epstein (including a then underage victim), Mr. Epstein himself, and other witnesses who can conoborate impo11ant pieces of Ms. Giuffre 's statements or refute Ms. Maxwell's statements and positions. These witnesses ' testimony will conoborate Ms. Giuffre 's account of Defendant being a recrniter of females for Epstein and conoborate the type of abuse she and others suffered. Sadly, Ms. Giuffre is fat· from the only one of Defendant's victims, and there ru·e other witnesses whose testimony is necessaty in order to demonstrate the trnth of Ms. Giuffre 's claims and the falsity of the statements made by Defendant. 3  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 7 of 15 Second, if Ms. Giuffre is denied these depositions, she will not have had the opportunity to obtain the infonnation by other discove1y in this case. The Court will recall from Ms. Giuffre 's opening motion that Defendant's smprising lack of memo1y has, in no small pal1, caused the need for additional depositions. See Motion at 5-8 (listing 59 examples of memo1y lapses dming Ms. Maxwell deposition, including inability to remember events recorded on aircraft flight logs or a photograph). Defendant offers no explanation for her convenient forgetfulness. Moreover, evidence of being recmited by Defendant and being sexually assaulted is not something Ms. Giuffre can obtain through requests for production or through intenogatories. The only way of obtaining such evidence is from witness testimony by those who were victimized, those who assisted Defendant in recmiting and abuse, and those who observed the recmiting or the abuse. 4  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 8 of 15 4 . Finally, the Defendant appears to be concealing critical evidence of the sexual abuse that other witnesses have testified she possesses. Yet Defendant has failed to produce a single photo in this case. . Document discove1y and inteITogatories are not helpful in obtaining this type of evidence: depositions are needed. Third, the bmden and expense of this proposed discove1y is limited to three additional depositions. Defendant in this case is a multi-millionaire with able counsel. Three depositions will not cause her undue bmden, expense, or inconvenience. These depositions are impo1iant to resolving issues in this case. Given that ve1y few witnesses reside within 100 miles of the comihouse and therefore cannot be compelled to trial, this request for only three additional depositions is a reasonable request. While Defendant opposes Ms. Giuffre's request for Comi approval of more than ten depositions, she has unilaterally noticed more than ten depositions without bothering to seek approval. As of the date of this filing, Defendant's counsel has issued twelve subpoenas for 5  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 9 of 15 deposition testimony - the almost the exact same number Ms. Giuffre is seeking.5 Defendant cannot credibly oppose Ms. Giuffre 's additional depositions while she, herself, is hy ing to take more than ten without leave of comi.6 _, It is plain why Defendant does not want these depositions to go fo1ward. testimony was ha1mful to Defendant's case, and the additional depositions will provide fuiiher evidence that Defendant acted as Jeffrey Epstein's madam, proving the tiuth of Ms. Giuffre 's statements that Defendant proclaimed publically as "obvious lies." II. MS. GIUFFRE IS SEEKING HIGHLY RELEVANT TRIAL TESTIMONY. All of the people Ms. Giuffre seeks to depose have discoverable and impo1iant info1mation regarding the elements of Ms. Giuffre's claims. Ms. Giuffre stated that Defendant recrnited 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, recrniting young females for Epstein, or conoborate other impo1iant aspects of her statements. The fact that Defendant recrnited girls, some of which were underage, for Epstein makes Ms. Giuffre 's claim that she was also recrnited by Defendant to ultimately have sex with Epstein and others more credible - and that Defendant's denials of any involvement in such recrniting is a bald-faced lie. Witnesses will testify that Defendant's recrnitment and management of the girls for Jeffrey Epstein was a major aspect of Defendant's job, and that Ms. 5 Defendant's counsel has taken the de osition testimon of 1) Ms. Giuffre; and (4) Ms. Giuffre's p~an o owmg witnesses for deposition: - (8) a known victim of Jeffrey Epstein; (9) Mr. Weisfield; (10) Ms. Chmcher; ; and (12) the 30(b)(6) witness for Victims Refuse Silence. 6 Defendant has unilaterally scheduled - without consulting counsel for Ms. Giuffre - at least two of these depositions for days when depositions of Ms. Giuffre's witnesses have been set. 6  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 10 of 15 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 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 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. 7  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 11 of 15 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- 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 8 In discovery, Defendant Maxwell has produced several emails between Epstein and herself discussing Ms. Giuffre. 8  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 12 of 15 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 she can make final plans about how many depositions she has available and thus which depositions she should prioritize. 9 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 1137-16 Filed 10/22/20 Page 13 of 15 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 o ~, 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 impo1i ant witnesses evaded Ms. Giuf:fre's repeated effo1i s 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 thnieen depositions. Dated: June 13, 2016. Respectfully Submitted, BOIES, SCHILLER & FLEXNER LLP By: Isl Sigrid Mccawley Sigrid Mccawley (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  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 14 of 15 333 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. 11  Case 1:15-cv-07433-LAP Document 1137-16 Filed 10/22/20 Page 15 of 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 13th 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 12