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Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 1 of 42
COMPOSITE
EXHIBIT 1
(FILE UNDER SEAL)
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 2 of 42
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFFâS MOTION TO COMPEL DATA FROM DEFENDANTâS 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 Defendantâs 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 Courtâs 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 Courtâs 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.
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 3 of 42
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, âeighty-eight percent
of adult Internet users sent or received e-mailâ in 2000. See Eric C. Newburger, âHome
Computers and Internet Use in the United States: August 2000,â 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 masterâs 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, âAmericansâ Internet Access:
2000-2015,â 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 Defendantâs
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
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A. The Account
Ms. Giuffre has knowledge of the account because it was listed as
part of Defendantâs contact information (including phone number) on documents gathered by the
police from Epsteinâs 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 Attorneyâs 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 Defendantâs contact information gathered
by the police. In her filing with this Court, Defendant represented that this was merely a âspamâ
account âto use when registering for retail sales notifications and the like,â 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 Epsteinâs 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
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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
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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 Epsteinâs house managers, from the case
L.M. v. Jeffery Epstein and Sarah Kellen,2 gives a fuller representation of how Defendant, and
others in Epsteinâs sex-trafficking ring, used their accounts on Epsteinâs 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
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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 Epsteinâs household, and claims to have been his
employee (See McCawley Decl. at Sealed Exhibit 3, Maxwellâs April 22, 2016 Dep. Tr. at 10:7-
11:3), it is unlikely that her mindspring account was merely a âspam accountâ from 1999-2002.
It is much more likely that this account has - or had - Defendantâs communications with co-
6
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conspirators Sarah Kellen, Nadia Marcinkova, and Epstein. However, it is Defendantâs
representation that this account does not presently have responsive documents and was merely
used for âspam.â
C. Defendantâs Non-Disclosed Email Account
If the Court accepts Defendantâs claim that she used neither the earthlink.net account nor
the mindspring.org âspamâ account to communicate, logic dictates that Defendant must have had
another email account - one that she actually used - from 2000 - 2002. Despite the Courtâs 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 Courtâs 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.
Giuffreâs 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
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has shut. Expert reports have been exchanged, so Ms. Giuffreâs 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, â[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.â Bouzo v. Citibank,
N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendantâs
continued systemic foot-dragging and obstructionism â even following the Courtâs June 20
Sealed Order and August 10, 2016 Order [DE 352] â makes an adverse inference instruction with
regard to Defendantâs 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 Peckâs 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 âpartyâs failure to produce evidence within its
control creates a presumption that evidence would be unfavorable to that partyâ an adverse
inference should be applied with respect to Defendantâs failure to produce data from the email
account she used from 1999 -2002 âin order to ensure fair hearing for [the] other party seeking
evidence.â 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
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âAn 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.â 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 Courtâs order). Where âan 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 âa culpable state of mindâ; and
(3) that the missing evidence is ârelevantâ to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.â Id. (citing Residential
Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
Furthermore, as discussed in detail in Ms. Giuffreâs 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 Circuitâs 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 Defendantâs destruction of evidence. See Brown v. Coleman, 2009 WL
2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (âWhere a party violates a court orderâeither by
destroying evidence when directed to preserve it or by failing to produce information because
relevant data has been destroyedâRule 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 11 of 42
F.3d 99, 106â07 (2d Cir.2002)â). 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. (âIf 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 informationâs 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.â). 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
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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
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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
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------X
.............................................
VIRGINIA L. GIUFFRE,
Plaintiff,
v.
15-cv-07433-RWS
GHISLAINE MAXWELL,
Defendant.
--------------------------------------------------X
DEFENDANTâS RESPONSE TO PLAINTIFFâS MOTION TO COMPEL
DATA FROM DEFENDANTâS (NON-EXISTENT) UNDISCLOSED EMAIL
ACCOUNT AND FOR AN ADVERSE INFERENCE INSTRUCTION
Laura A. Menninger
Jeffrey S. Pagliuca
HADDON, MORGAN, AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
303.831.7364
i
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 15 of 42
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
I. PLAINTIFF HAS FAILED TO CONFER UNDER RULE 37(A)(1) OR THIS COURTâS
ORDER.................................................................................................................................... 1
II. MS. MAXWELL HAS DISCLOSED AND SEARCHED ALL EMAIL ACCOUNTS ........ 3
III. SANCTIONS AGAINST MS. MAXWELL NOT WARRANTED, RATHER COSTS
OUGHT TO BE AWARDED TO HER .............................................................................. 7
CONCLUSION ............................................................................................................................. 13
CERTIFICATE OF SERVICE ..................................................................................................... 15
i
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Defendant Ghislaine Maxwell (âMs. Maxwellâ) files this Response to Plaintiffâs Motion
To Compel Data From Defendantâs (Non-Existent) Undisclosed Email Account and For an
Adverse Inference Instruction and states as follow:
INTRODUCTION
Plaintiff continues in her course of re-litigating issues, multiplying these proceedings and
misstating the record. In what amounts to the fourth Motion on forensic examination of Ms.
Maxwellâs computers and email accounts, Plaintiff now trumps up a claim that some unidentified
and âundisclosedâ email account should have been searched and was not. To the contrary, Ms.
Maxwell has spent thousands of dollars to forensically image all of her devices, searching every
account to which she has access, conducting extremely broad and over-reaching searches for the
search terms Plaintiff requested and in complying with this Courtâs Orders. The result of these
exercises proved, as Ms. Maxwell has always maintained, that all non-privileged relevant and
responsive documents in her possession, custody and control had already been searched for and
produced prior to the excessive and redundant briefing on these issues, resulting in no additional
production. Plaintiffâs Motion must be denied because no âundisclosedâ email account exists
and Ms. Maxwell has fully complied with this Courtâs Orders.
ARGUMENT
I. PLAINTIFF HAS FAILED TO CONFER UNDER RULE 37(A)(1) OR THIS
COURTâS ORDER
Despite the clear requirements of Rule 37(a)(1) requiring a certificate of conferral prior to
filing any motion to compel, and this Courtâs standing order regarding conferral on all discovery
issues prior to Motions practice, the sum total of Plaintiffâs stated conferral attempt is a footnote
stating that a letter was sent on September 23, 2016 âinquiring about the undisclosed accountâ â
a letter not included in the exhibits to the Motion. Ms. Maxwell has been clear that she has
1
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searched all accounts that she can access. Had Plaintiff bothered to follow up on this alleged
communication, Ms. Maxwell would have reaffirmed that there is no âundisclosedâ email
account. Instead, Plaintiff filed this frivolous and vexatious motion to waste both the Court and
Ms. Maxwellâs time and needlessly multiply these proceedings.
Courts in this district routinely deny motions based on failure to confer prior to the
motion when such conferral is required by the Rules or Court Order. Prescient Partners, L.P. v.
Fieldcrest Cannon, Inc., No. 96 Civ. 7590 (DAB) JCF, 1998 WL 67672, at *3 (S.D.N.Y. 1998)
(âUnder ordinary circumstances,..., the failure to meet and confer mandates denial of a motion to
compel.â); Excess Ins. Co. v. Rochdale Ins. Co., No. 05 CIV. 10174, 2007 WL 2900217, at *1
(S.D.N.Y. Oct. 4, 2007) (Sweet, J.) (denying motion and cross motion based on failure to confer,
noting â[m]ere correspondence, absent exigent circumstances not present here, does not satisfy
the requirementâ); Myers v. Andzel, No. 06 CIV. 14420 (RWS), 2007 WL 3256865, at *1
(Sweet, J.) (S.D.N.Y. Oct. 15, 2007) (denying motion based on failure to confer).
The Court has been abundantly clear on the necessity for conferral prior to motions
practice. In the March 17, 2016 hearing, the Court ordered that prior to motions practice, the
parties were to set an agenda on the disputed issue in writing and have a meeting of substance
prior to filing a motion. âSo I would say exchange writing as to what it's going to be and have a
meeting. It doesn't have to be in person, but it certainly has to be a significant meeting; it can't
be just one ten-minute telephone call. So that's how I feel about the meet and confer.â Tr. p. 3.
As shown in the Plaintiffâs motion, no such call has occurred.
Based on Plaintiffâs failure to confer as required by both the Federal Rules and this
Courtâs standing order, Ms. Maxwell requests that the Motion be denied and attorneysâ fees and
costs of responding be awarded to Ms. Maxwell.
2
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II. MS. MAXWELL HAS DISCLOSED AND SEARCHED ALL EMAIL ACCOUNTS
a. All Devices Have Been Forensically Searched for Responsive Emails
As requested by Plaintiff and Ordered by the Court, Ms. Maxwellâs computer and all of
her electronic devices have been forensically imaged, searched for the search terms requested by
Plaintiff, and all responsive documents produced. This expensive, costly and time consuming
exercise in futility simply confirmed that all responsive documents, including all responsive
emails, were produced in March and April 2016.
Most significantly, the devices were searched for all emailsâwhether saved or deleted â
and irrespective of which account they came from; not a single responsive email was located
from any Mindspring account and no emails were located from Earthlink or any other secret,
hidden, âundisclosedâ email account, as Plaintiff speculates must exist.
b. The MindSpring account
The first two accounts discussed in the Motion have already been fully discussed in prior
briefings and at length in conferral conferences.1 See DE 320. In addition to the search of Ms.
Maxwellâs computer and devices, the first account, was forensically
searched on its server using the search terms proposed by Defendants and as required by the
Court. The search uncovered no responsive documents from any time period. See DE 320. This
included both emails in the account, deleted emails, and any other information relating to the
account retained on the MindSpring server. There can simply be no claim for an adverse
inference where Plaintiff has already received exactly what she requested â a forensic search of
the account for her own defined terms. It resulted in nothing.
1
Plaintiff conveniently omits the fact that the EarthLink and MindSpring accounts were in an address book
purportedly recovered from Mr. Epsteinâs home by the Palm Beach Police in 2005. Thus, there is no indication or
inference that either of these accounts were created or used in the 2000 to 2002 time frame as Plaintiff claims.
3
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c. The EarthLink account
The second account, is, as Ms. Maxwell has repeatedly explained
to Plaintiffâs counsel, an account that she does not recognize, that she does not recall having ever
logged onto, and for which she has no password. See DE 320. Ms. Maxwell tried every avenue
available online through EarthLink to reset the password or otherwise access the account. In
fact, when one attempts to recover a password for that account, the system states âThe email
address you entered is not an EarthLink email address or ID.â According to Plaintiff, such a
message means the account has been permanently deleted by the host company. Plaintiffâs
counsel, Meredith Shultz, wrote on May 17, 2016, regarding an account of Plaintiffâs (that she
claims she cannot access but for which relevant and responsive emails were located on her
computer):
âRegarding her live.com address, it appears that the account has been
permanently deleted by the host Company. One method of telling if an account
still exists for live.com (and for most web mail systems) is to perform an
account password recovery. When you enter the e-mail address and enter the
captca code and hit Next, the website states that it does not recognize the email
address. This means that the account has been permanently deleted from
live.comâs system.â
Menninger Decl., Ex. A.
Plaintiff does not, and cannot, explain why she thinks that her own live.com email
address has been permanently deleted by the host company, yet based on the exact same set of
data, she thinks that an email account that Ms. Maxwell does not recall ever using (and from
which no documents exist on her devices) from Earthlink still remains on its system. If there is
some way to access the account, Plaintiff hasnât said what it is. Ms. Maxwell simply has no way
to access this account and has no information, save Plaintiffâs rank speculation.2
2
Plaintiff has an account from which actual documents have been produced â proving she did use the
account (unlike Ms. Maxwellâs EarthLink account) and it contains relevant information. Yet Plaintiff claims she
4
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Because Plaintiff claimed she cannot access her Microsoft account, Ms. Maxwell
subpoenaed Microsoft for the documents. Plaintiff moved to quash the subpoena to obtain the
information contained in the account and has refused to sign the release provided to her that
would allow the production of that information under the terms of a subpoena issued to
Microsoft. Menninger Decl,. Ex. B. Tellingly, Plaintiff did not issue a subpoena to EarthLink
regarding this account to see if it existed, has content or could be accessed. Instead, she seeks
the drastic and improper sanction of an adverse inference knowing that it is far more beneficial to
her than actually receiving information from EarthLink which would reveal nothing exists.
d. There is no âUndisclosedâ Account
Plaintiff next argues that she is entitled to an adverse inference based on the failure to
search a phantom e-mail account that she presumes (without support and based on pure
speculation) must have existed, which she has never asked about in discovery, claiming that such
an account was improperly âundisclosedâ and not searched. Plaintiff bases her absurd argument
on statistics suggesting that someone like Ms. Maxwell âlikelyâ had an email account in the 2000
to 2002 timeframe and a specious claim that Ms. Maxwell has never denied having an email
account from 2000 to 2002. Motion at 2. Notably absent from the Motion is a single
interrogatory, request for admission, or deposition question in which Ms. Maxwell was asked to
provide all email addresses she has used or asked if she ever had an email account in 2000 to
2002. No such question was ever posed to Ms. Maxwell on this issue.3 How could she possibly
deny the existence of an account when she was never asked the question?
cannot access her Microsoft account because she does not remember the password and does not have sufficient
personal information to provide to gain access to the account. DE 207; DE 441. This is not dissimilar to Ms.
Maxwell who does not even remember the account let alone the password.
3
By contrast, Ms. Maxwell requested that Plaintiff identify all email and social media accounts which she
had used since 1998. Plaintiff provided false information, and purposefully omitted accounts that have since been
discovered, one of which Plaintiff still has failed to forensically search and disclose its responsive documents.
5
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 21 of 42
Plaintiff asks this Court to infer the existence of an undisclosed âemailâ account for Ms.
Maxwell in the 2000-2002 timeframe based on witness accounts that Jeffrey Epstein had a
âmessaging systemâ on a private server. Of course, there is a big difference between having a
private email account (gmail, aol, yahoo, etc.) and communicating through a private messaging
system on an employerâs sever, as described by Mr. Alessi (âIt 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.â).4 To the
extent there was a private messaging system used by Mr. Epsteinâs household employees
maintained on a private server by Mr. Epstein, information from that system is not available to
Ms. Maxwell. Ms. Maxwell has not been employed by Mr. Epstein for over 10 years and has not
had any access to Mr. Epsteinâs server through Citrix or otherwise since at least the end of her
employment with him.
âWhether a party subject to a document request can be compelled to comply depends on
two preliminary questions: (1) assuming the requested documents exist, does the party have
possession, custody or control over them, and (2) if the party has such possession, custody or
control, can the party be compelled to conduct a reasonable search for and, if found, to produce
the documents.â Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014). Ms. Maxwell is not
in the possession, custody or control of the server or any information it may contain. âWhere
4
It appears this is what was also being described by Mr. Banasiak in the deposition from another case, a
full copy of which has never been produced in this litigation. Indeed, Mr. Banasiak has not been identified as a
person with relevant or discoverable information in any of the last three of Plaintiffâs Rule 26 Disclosures. In the
cited testimony, Mr. Banasiak appears to have discussed accessing a private messaging system maintained on Mr.
Epsteinâs private server using Citrix, a program that allows such access to authorized users. Because Plaintiff has
failed to disclose the transcript being quoted, Ms. Maxwell cannot fully decipher the obviously edited testimony
quoted in the Motion, does not know what timeframe Mr. Banasiak was referring to regarding the computers or
using Citrix, and cannot respond to the claims made regarding the nature of any inference that could be drawn from
Mr. Banasiakâs selected testimony. The entire argument and reference to the transcript must be ignored and stricken
based on Plaintiffâs failure to produce in discovery the transcript she relies on.
6
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 22 of 42
control is contested, the party seeking production of documents bears the burden of establishing
the opposing party's control over those documents.â Alexander Interactive, Inc. v. Adorama, Inc.,
No. 12 CIV. 6608 (PKC) (JCF), 2014 WL 61472, at *3 (S.D.N.Y. Jan. 6, 2014). Plaintiff has
made no showing that Ms. Maxwell has any control over the hypothetical documents she
suspects may be on Mr. Epsteinâs private server. As has been made clear by Mr. Epsteinâs
refusal to produce any documents in this matter or provide any testimony, instead invoking his
Fifth Amendment privilege, there is no manner in which Ms. Maxwell could require Mr. Epstein
to provide any information on Mr. Epsteinâs private server. Notably, no such âmessagesâ were
located on any of Ms. Maxwellâs devices or within her email accounts.
Simply put, there are no emails from any accounts, systems or electronic storage devices
over which Ms. Maxwell has possession, custody or control that have not been searched and
from which responsive non-privileged documents produced.
III. SANCTIONS AGAINST MS. MAXWELL NOT WARRANTED, RATHER COSTS
OUGHT TO BE AWARDED TO HER
Plaintiff completely fails to identify which, if any, of the Rules of Civil Procedure she
relies on to claim any right to request sanctions, let alone to receive an adverse inference
instruction. The argument appears premised on a claim that Ms. Maxwell has not complied with
the Courtâs Order â a completely inaccurate claim:
On June 20, 2016, this Court ordered:
Defendant is ordered to collect all ESI by imaging her computers and collecting all email
and text messages on any devices in Defendant's possession or to which she has access
that Defendant used between the period of 2002 to present. Defendant is further directed
to run mutually- agreed upon search terms related to Plaintiff's requests for production
over the aforementioned ESI and produce responsive documents within 21 days of
distribution of this opinion.
This was done. Plaintiff then expanded her request, imposed additional search terms, and
added conditions concerning the manner in which she wanted devices searched. On August 9,
7
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 23 of 42
2016, the Court entered an Order adopting Plaintiffâs expanded request and methodology. All
accessible email accounts and devices, including deleted files and emails, were searched â again
â at significant expense. Again, no additional non-privileged responsive documents were
located. There is no non-compliance and no basis for any sanctions, let alone the draconian
sanction of an adverse inference.
a. Plaintiff Fails to Identify or Prove the Factors Required for Sanctions
Based on Alleged Violation of a Court Order
Absent from Plaintiffâs motion is the actual legal standard required for imposition of
sanctions, and certainly no argument or citation exist in this case to carry the burden of
establishing the factors. In light of the fact that Ms. Maxwell has complied, Plaintiff has failed to
demonstrate the minimum hurdle for any sanction. Thus, the factors are not addressed here, nor
can they be addressed on Reply. What is clear is that the sanction of an adverse inference is not
identified as a sanction that should or could be considered under the rules concerning the failure
to comply with a Court Order. See Fed. R. Civ. P. 37(b)(2)(A).
b. Controlling Law Prohibits an Adverse Inference Instruction
An adverse inference instruction is considered an âextreme sanctionâ that âshould not be
given lightly.â Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003). More
importantly Plaintiff completely ignores the 2015 changes to Fed. R. Civ. P 37(e)(2), which now
permits an adverse inference instruction only when the court finds that a spoliating party
purposefully and willfully destroys evidence and that party âacted with the intent to deprive
another party of the information's use in the litigation.â Fed. R. Civ. P. 37(e)(2). The new Rule
37 ârejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99
8
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 24 of 42
(2d Cir. 2002)5, that authorize the giving of adverse-inference instructions on a finding of
negligence or gross negligence.â Fed. R. Civ. P. 37(e)(2) Advisory Committee's Note to 2015
Amendment; see also Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368, at *7
(D. Conn. Apr. 29, 2016) (recognizing abrogation of Residential Funding). There is no claim of
spoliation â no information has been lost or destroyed since the threat or initiation of litigation
when there would have been a duty to preserve. There is no bad faith. Ms. Maxwell has
completely complied with all Court Orders and there are no accessible accounts or electronic
devices that have not been searched.
i. The cases cited by Plaintiff are not the controlling standards, and Plaintiff
fails to establish the elements required for an adverse inference
Plaintiff relies heavily on her previously briefed motion requesting an adverse inference
relying on factors in a single case, Residential Funding Corp. v. DeGeorge Financial Corp., 306
F.3d 99, 108 (2nd Cir. 2002). This case sets forth the standard for an adverse inference based on
the inherent powers of the Court (not under Rule 37(b)) where the party failed to produce
relevant documents prior to the commencement of trial. Id. (âwhere, as here, an adverse
inference instruction 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 âa culpable state of mindâ; and (3) that the missing evidence is ârelevantâ to the
partyâs claim or defense such that a reasonable trier of fact could find that it would support that
claim or defenseâ). By contrast, however, courts have repeatedly noted that an adverse
inference, and application of the Residential Funding test, are not appropriate for a mere delay in
production, especially when all documents are produced prior to depositions and trial. See
5
This is the primary case relied on by Plaintiff in support of both of her Motions for an adverse inference.
9
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 25 of 42
Psihoyos v. John Wiley & Sons, Inc., No. 11CV01416, 2012 WL 3601087 (S.D.N.Y. June 22,
2012) (refusing to grant adverse inference instruction where Plaintiff did not confer to obtain
requested discovery, and noting âPlaintiff does not cite to a single case where an adverse
inference instruction was ordered based on the late production of a documentâ).6 Here, there was
no delay in production â there was and is nothing additional to produce. All documents were
produced well in advance of trial, prohibiting an adverse inference.
Even if the Residential Funding factors were applicable, Plaintiff fails to carry her burden
of proving those factors are present in this case. Defendant does not contest that she is obligated
to comply with this Courtâs Orders. She has done so. She has collected all of her electronically
stored information, and run all agreed upon search terms â and then re-run the searches when
Plaintiff further expanded her demands. The result of the application of these search terms is
proof that she has been compliant with her discovery obligations all along. No new non-
privileged documents were captured through utilization of the process demanded by Plaintiff. As
Ms. Maxwell previously stated in response to the Motion for forensic examination, she had run
comprehensive search terms, thoroughly reviewed her records and previously produced all
responsive documents in her possession.7
The second factor, that âthe party that failed to timely produce the evidence had âa
culpable state of mindââ is likewise lacking. There is no claim of Defendant acting with a
6
See also Phoenix Four, Inc., No. 05 CIV. 4837(HB), 2006 WL 1409413, at *7 (S.D.N.Y. May 23, 2006)
(holding that a sanction as severe as an adverse inference was not warranted where defendants came forward with
the evidence, even though it was after the close of discovery); Williams v. SaintâGobain Corp., No. 00 Civ. 502,
2002 WL 1477618, at *2 (W.D.N.Y. June 28, 2002) (holding that no basis for adverse inference instruction existed
where defendant failed to produce emails until the eve of trial and there was no evidence of bad faith); In re A & M
Florida Properties II, LLC, No. 09-15173 (AJG), 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010)
(declining to impose adverse inference instruction where documents were belatedly produced, but there was no bad
faith).
7
Plaintiffâs argument that she has been or will be prejudiced is illogical given that there are no documents
that have not been produced, and there never have been any responsive documents missing from production.
10
Case 1:15-cv-07433-LAP Docume
COMPOSITE
EXHIBIT 1
(FILE UNDER SEAL)
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 2 of 42
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFFâS MOTION TO COMPEL DATA FROM DEFENDANTâS 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 Defendantâs 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 Courtâs 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 Courtâs 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.
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 3 of 42
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, âeighty-eight percent
of adult Internet users sent or received e-mailâ in 2000. See Eric C. Newburger, âHome
Computers and Internet Use in the United States: August 2000,â 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 masterâs 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, âAmericansâ Internet Access:
2000-2015,â 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 Defendantâs
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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 4 of 42
A. The Account
Ms. Giuffre has knowledge of the account because it was listed as
part of Defendantâs contact information (including phone number) on documents gathered by the
police from Epsteinâs 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 Attorneyâs 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 Defendantâs contact information gathered
by the police. In her filing with this Court, Defendant represented that this was merely a âspamâ
account âto use when registering for retail sales notifications and the like,â 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 Epsteinâs 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 5 of 42
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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 6 of 42
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 Epsteinâs house managers, from the case
L.M. v. Jeffery Epstein and Sarah Kellen,2 gives a fuller representation of how Defendant, and
others in Epsteinâs sex-trafficking ring, used their accounts on Epsteinâs 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 7 of 42
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 Epsteinâs household, and claims to have been his
employee (See McCawley Decl. at Sealed Exhibit 3, Maxwellâs April 22, 2016 Dep. Tr. at 10:7-
11:3), it is unlikely that her mindspring account was merely a âspam accountâ from 1999-2002.
It is much more likely that this account has - or had - Defendantâs communications with co-
6
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 8 of 42
conspirators Sarah Kellen, Nadia Marcinkova, and Epstein. However, it is Defendantâs
representation that this account does not presently have responsive documents and was merely
used for âspam.â
C. Defendantâs Non-Disclosed Email Account
If the Court accepts Defendantâs claim that she used neither the earthlink.net account nor
the mindspring.org âspamâ account to communicate, logic dictates that Defendant must have had
another email account - one that she actually used - from 2000 - 2002. Despite the Courtâs 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 Courtâs 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.
Giuffreâs 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 9 of 42
has shut. Expert reports have been exchanged, so Ms. Giuffreâs 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, â[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.â Bouzo v. Citibank,
N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendantâs
continued systemic foot-dragging and obstructionism â even following the Courtâs June 20
Sealed Order and August 10, 2016 Order [DE 352] â makes an adverse inference instruction with
regard to Defendantâs 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 Peckâs 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 âpartyâs failure to produce evidence within its
control creates a presumption that evidence would be unfavorable to that partyâ an adverse
inference should be applied with respect to Defendantâs failure to produce data from the email
account she used from 1999 -2002 âin order to ensure fair hearing for [the] other party seeking
evidence.â 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 10 of 42
âAn 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.â 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 Courtâs order). Where âan 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 âa culpable state of mindâ; and
(3) that the missing evidence is ârelevantâ to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.â Id. (citing Residential
Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
Furthermore, as discussed in detail in Ms. Giuffreâs 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 Circuitâs 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 Defendantâs destruction of evidence. See Brown v. Coleman, 2009 WL
2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (âWhere a party violates a court orderâeither by
destroying evidence when directed to preserve it or by failing to produce information because
relevant data has been destroyedâRule 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 11 of 42
F.3d 99, 106â07 (2d Cir.2002)â). 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. (âIf 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 informationâs 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.â). 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
Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 12 of 42
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
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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
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------X
.............................................
VIRGINIA L. GIUFFRE,
Plaintiff,
v.
15-cv-07433-RWS
GHISLAINE MAXWELL,
Defendant.
--------------------------------------------------X
DEFENDANTâS RESPONSE TO PLAINTIFFâS MOTION TO COMPEL
DATA FROM DEFENDANTâS (NON-EXISTENT) UNDISCLOSED EMAIL
ACCOUNT AND FOR AN ADVERSE INFERENCE INSTRUCTION
Laura A. Menninger
Jeffrey S. Pagliuca
HADDON, MORGAN, AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
303.831.7364
i
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
I. PLAINTIFF HAS FAILED TO CONFER UNDER RULE 37(A)(1) OR THIS COURTâS
ORDER.................................................................................................................................... 1
II. MS. MAXWELL HAS DISCLOSED AND SEARCHED ALL EMAIL ACCOUNTS ........ 3
III. SANCTIONS AGAINST MS. MAXWELL NOT WARRANTED, RATHER COSTS
OUGHT TO BE AWARDED TO HER .............................................................................. 7
CONCLUSION ............................................................................................................................. 13
CERTIFICATE OF SERVICE ..................................................................................................... 15
i
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Defendant Ghislaine Maxwell (âMs. Maxwellâ) files this Response to Plaintiffâs Motion
To Compel Data From Defendantâs (Non-Existent) Undisclosed Email Account and For an
Adverse Inference Instruction and states as follow:
INTRODUCTION
Plaintiff continues in her course of re-litigating issues, multiplying these proceedings and
misstating the record. In what amounts to the fourth Motion on forensic examination of Ms.
Maxwellâs computers and email accounts, Plaintiff now trumps up a claim that some unidentified
and âundisclosedâ email account should have been searched and was not. To the contrary, Ms.
Maxwell has spent thousands of dollars to forensically image all of her devices, searching every
account to which she has access, conducting extremely broad and over-reaching searches for the
search terms Plaintiff requested and in complying with this Courtâs Orders. The result of these
exercises proved, as Ms. Maxwell has always maintained, that all non-privileged relevant and
responsive documents in her possession, custody and control had already been searched for and
produced prior to the excessive and redundant briefing on these issues, resulting in no additional
production. Plaintiffâs Motion must be denied because no âundisclosedâ email account exists
and Ms. Maxwell has fully complied with this Courtâs Orders.
ARGUMENT
I. PLAINTIFF HAS FAILED TO CONFER UNDER RULE 37(A)(1) OR THIS
COURTâS ORDER
Despite the clear requirements of Rule 37(a)(1) requiring a certificate of conferral prior to
filing any motion to compel, and this Courtâs standing order regarding conferral on all discovery
issues prior to Motions practice, the sum total of Plaintiffâs stated conferral attempt is a footnote
stating that a letter was sent on September 23, 2016 âinquiring about the undisclosed accountâ â
a letter not included in the exhibits to the Motion. Ms. Maxwell has been clear that she has
1
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searched all accounts that she can access. Had Plaintiff bothered to follow up on this alleged
communication, Ms. Maxwell would have reaffirmed that there is no âundisclosedâ email
account. Instead, Plaintiff filed this frivolous and vexatious motion to waste both the Court and
Ms. Maxwellâs time and needlessly multiply these proceedings.
Courts in this district routinely deny motions based on failure to confer prior to the
motion when such conferral is required by the Rules or Court Order. Prescient Partners, L.P. v.
Fieldcrest Cannon, Inc., No. 96 Civ. 7590 (DAB) JCF, 1998 WL 67672, at *3 (S.D.N.Y. 1998)
(âUnder ordinary circumstances,..., the failure to meet and confer mandates denial of a motion to
compel.â); Excess Ins. Co. v. Rochdale Ins. Co., No. 05 CIV. 10174, 2007 WL 2900217, at *1
(S.D.N.Y. Oct. 4, 2007) (Sweet, J.) (denying motion and cross motion based on failure to confer,
noting â[m]ere correspondence, absent exigent circumstances not present here, does not satisfy
the requirementâ); Myers v. Andzel, No. 06 CIV. 14420 (RWS), 2007 WL 3256865, at *1
(Sweet, J.) (S.D.N.Y. Oct. 15, 2007) (denying motion based on failure to confer).
The Court has been abundantly clear on the necessity for conferral prior to motions
practice. In the March 17, 2016 hearing, the Court ordered that prior to motions practice, the
parties were to set an agenda on the disputed issue in writing and have a meeting of substance
prior to filing a motion. âSo I would say exchange writing as to what it's going to be and have a
meeting. It doesn't have to be in person, but it certainly has to be a significant meeting; it can't
be just one ten-minute telephone call. So that's how I feel about the meet and confer.â Tr. p. 3.
As shown in the Plaintiffâs motion, no such call has occurred.
Based on Plaintiffâs failure to confer as required by both the Federal Rules and this
Courtâs standing order, Ms. Maxwell requests that the Motion be denied and attorneysâ fees and
costs of responding be awarded to Ms. Maxwell.
2
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II. MS. MAXWELL HAS DISCLOSED AND SEARCHED ALL EMAIL ACCOUNTS
a. All Devices Have Been Forensically Searched for Responsive Emails
As requested by Plaintiff and Ordered by the Court, Ms. Maxwellâs computer and all of
her electronic devices have been forensically imaged, searched for the search terms requested by
Plaintiff, and all responsive documents produced. This expensive, costly and time consuming
exercise in futility simply confirmed that all responsive documents, including all responsive
emails, were produced in March and April 2016.
Most significantly, the devices were searched for all emailsâwhether saved or deleted â
and irrespective of which account they came from; not a single responsive email was located
from any Mindspring account and no emails were located from Earthlink or any other secret,
hidden, âundisclosedâ email account, as Plaintiff speculates must exist.
b. The MindSpring account
The first two accounts discussed in the Motion have already been fully discussed in prior
briefings and at length in conferral conferences.1 See DE 320. In addition to the search of Ms.
Maxwellâs computer and devices, the first account, was forensically
searched on its server using the search terms proposed by Defendants and as required by the
Court. The search uncovered no responsive documents from any time period. See DE 320. This
included both emails in the account, deleted emails, and any other information relating to the
account retained on the MindSpring server. There can simply be no claim for an adverse
inference where Plaintiff has already received exactly what she requested â a forensic search of
the account for her own defined terms. It resulted in nothing.
1
Plaintiff conveniently omits the fact that the EarthLink and MindSpring accounts were in an address book
purportedly recovered from Mr. Epsteinâs home by the Palm Beach Police in 2005. Thus, there is no indication or
inference that either of these accounts were created or used in the 2000 to 2002 time frame as Plaintiff claims.
3
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c. The EarthLink account
The second account, is, as Ms. Maxwell has repeatedly explained
to Plaintiffâs counsel, an account that she does not recognize, that she does not recall having ever
logged onto, and for which she has no password. See DE 320. Ms. Maxwell tried every avenue
available online through EarthLink to reset the password or otherwise access the account. In
fact, when one attempts to recover a password for that account, the system states âThe email
address you entered is not an EarthLink email address or ID.â According to Plaintiff, such a
message means the account has been permanently deleted by the host company. Plaintiffâs
counsel, Meredith Shultz, wrote on May 17, 2016, regarding an account of Plaintiffâs (that she
claims she cannot access but for which relevant and responsive emails were located on her
computer):
âRegarding her live.com address, it appears that the account has been
permanently deleted by the host Company. One method of telling if an account
still exists for live.com (and for most web mail systems) is to perform an
account password recovery. When you enter the e-mail address and enter the
captca code and hit Next, the website states that it does not recognize the email
address. This means that the account has been permanently deleted from
live.comâs system.â
Menninger Decl., Ex. A.
Plaintiff does not, and cannot, explain why she thinks that her own live.com email
address has been permanently deleted by the host company, yet based on the exact same set of
data, she thinks that an email account that Ms. Maxwell does not recall ever using (and from
which no documents exist on her devices) from Earthlink still remains on its system. If there is
some way to access the account, Plaintiff hasnât said what it is. Ms. Maxwell simply has no way
to access this account and has no information, save Plaintiffâs rank speculation.2
2
Plaintiff has an account from which actual documents have been produced â proving she did use the
account (unlike Ms. Maxwellâs EarthLink account) and it contains relevant information. Yet Plaintiff claims she
4
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Because Plaintiff claimed she cannot access her Microsoft account, Ms. Maxwell
subpoenaed Microsoft for the documents. Plaintiff moved to quash the subpoena to obtain the
information contained in the account and has refused to sign the release provided to her that
would allow the production of that information under the terms of a subpoena issued to
Microsoft. Menninger Decl,. Ex. B. Tellingly, Plaintiff did not issue a subpoena to EarthLink
regarding this account to see if it existed, has content or could be accessed. Instead, she seeks
the drastic and improper sanction of an adverse inference knowing that it is far more beneficial to
her than actually receiving information from EarthLink which would reveal nothing exists.
d. There is no âUndisclosedâ Account
Plaintiff next argues that she is entitled to an adverse inference based on the failure to
search a phantom e-mail account that she presumes (without support and based on pure
speculation) must have existed, which she has never asked about in discovery, claiming that such
an account was improperly âundisclosedâ and not searched. Plaintiff bases her absurd argument
on statistics suggesting that someone like Ms. Maxwell âlikelyâ had an email account in the 2000
to 2002 timeframe and a specious claim that Ms. Maxwell has never denied having an email
account from 2000 to 2002. Motion at 2. Notably absent from the Motion is a single
interrogatory, request for admission, or deposition question in which Ms. Maxwell was asked to
provide all email addresses she has used or asked if she ever had an email account in 2000 to
2002. No such question was ever posed to Ms. Maxwell on this issue.3 How could she possibly
deny the existence of an account when she was never asked the question?
cannot access her Microsoft account because she does not remember the password and does not have sufficient
personal information to provide to gain access to the account. DE 207; DE 441. This is not dissimilar to Ms.
Maxwell who does not even remember the account let alone the password.
3
By contrast, Ms. Maxwell requested that Plaintiff identify all email and social media accounts which she
had used since 1998. Plaintiff provided false information, and purposefully omitted accounts that have since been
discovered, one of which Plaintiff still has failed to forensically search and disclose its responsive documents.
5
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Plaintiff asks this Court to infer the existence of an undisclosed âemailâ account for Ms.
Maxwell in the 2000-2002 timeframe based on witness accounts that Jeffrey Epstein had a
âmessaging systemâ on a private server. Of course, there is a big difference between having a
private email account (gmail, aol, yahoo, etc.) and communicating through a private messaging
system on an employerâs sever, as described by Mr. Alessi (âIt 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.â).4 To the
extent there was a private messaging system used by Mr. Epsteinâs household employees
maintained on a private server by Mr. Epstein, information from that system is not available to
Ms. Maxwell. Ms. Maxwell has not been employed by Mr. Epstein for over 10 years and has not
had any access to Mr. Epsteinâs server through Citrix or otherwise since at least the end of her
employment with him.
âWhether a party subject to a document request can be compelled to comply depends on
two preliminary questions: (1) assuming the requested documents exist, does the party have
possession, custody or control over them, and (2) if the party has such possession, custody or
control, can the party be compelled to conduct a reasonable search for and, if found, to produce
the documents.â Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014). Ms. Maxwell is not
in the possession, custody or control of the server or any information it may contain. âWhere
4
It appears this is what was also being described by Mr. Banasiak in the deposition from another case, a
full copy of which has never been produced in this litigation. Indeed, Mr. Banasiak has not been identified as a
person with relevant or discoverable information in any of the last three of Plaintiffâs Rule 26 Disclosures. In the
cited testimony, Mr. Banasiak appears to have discussed accessing a private messaging system maintained on Mr.
Epsteinâs private server using Citrix, a program that allows such access to authorized users. Because Plaintiff has
failed to disclose the transcript being quoted, Ms. Maxwell cannot fully decipher the obviously edited testimony
quoted in the Motion, does not know what timeframe Mr. Banasiak was referring to regarding the computers or
using Citrix, and cannot respond to the claims made regarding the nature of any inference that could be drawn from
Mr. Banasiakâs selected testimony. The entire argument and reference to the transcript must be ignored and stricken
based on Plaintiffâs failure to produce in discovery the transcript she relies on.
6
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control is contested, the party seeking production of documents bears the burden of establishing
the opposing party's control over those documents.â Alexander Interactive, Inc. v. Adorama, Inc.,
No. 12 CIV. 6608 (PKC) (JCF), 2014 WL 61472, at *3 (S.D.N.Y. Jan. 6, 2014). Plaintiff has
made no showing that Ms. Maxwell has any control over the hypothetical documents she
suspects may be on Mr. Epsteinâs private server. As has been made clear by Mr. Epsteinâs
refusal to produce any documents in this matter or provide any testimony, instead invoking his
Fifth Amendment privilege, there is no manner in which Ms. Maxwell could require Mr. Epstein
to provide any information on Mr. Epsteinâs private server. Notably, no such âmessagesâ were
located on any of Ms. Maxwellâs devices or within her email accounts.
Simply put, there are no emails from any accounts, systems or electronic storage devices
over which Ms. Maxwell has possession, custody or control that have not been searched and
from which responsive non-privileged documents produced.
III. SANCTIONS AGAINST MS. MAXWELL NOT WARRANTED, RATHER COSTS
OUGHT TO BE AWARDED TO HER
Plaintiff completely fails to identify which, if any, of the Rules of Civil Procedure she
relies on to claim any right to request sanctions, let alone to receive an adverse inference
instruction. The argument appears premised on a claim that Ms. Maxwell has not complied with
the Courtâs Order â a completely inaccurate claim:
On June 20, 2016, this Court ordered:
Defendant is ordered to collect all ESI by imaging her computers and collecting all email
and text messages on any devices in Defendant's possession or to which she has access
that Defendant used between the period of 2002 to present. Defendant is further directed
to run mutually- agreed upon search terms related to Plaintiff's requests for production
over the aforementioned ESI and produce responsive documents within 21 days of
distribution of this opinion.
This was done. Plaintiff then expanded her request, imposed additional search terms, and
added conditions concerning the manner in which she wanted devices searched. On August 9,
7
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2016, the Court entered an Order adopting Plaintiffâs expanded request and methodology. All
accessible email accounts and devices, including deleted files and emails, were searched â again
â at significant expense. Again, no additional non-privileged responsive documents were
located. There is no non-compliance and no basis for any sanctions, let alone the draconian
sanction of an adverse inference.
a. Plaintiff Fails to Identify or Prove the Factors Required for Sanctions
Based on Alleged Violation of a Court Order
Absent from Plaintiffâs motion is the actual legal standard required for imposition of
sanctions, and certainly no argument or citation exist in this case to carry the burden of
establishing the factors. In light of the fact that Ms. Maxwell has complied, Plaintiff has failed to
demonstrate the minimum hurdle for any sanction. Thus, the factors are not addressed here, nor
can they be addressed on Reply. What is clear is that the sanction of an adverse inference is not
identified as a sanction that should or could be considered under the rules concerning the failure
to comply with a Court Order. See Fed. R. Civ. P. 37(b)(2)(A).
b. Controlling Law Prohibits an Adverse Inference Instruction
An adverse inference instruction is considered an âextreme sanctionâ that âshould not be
given lightly.â Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003). More
importantly Plaintiff completely ignores the 2015 changes to Fed. R. Civ. P 37(e)(2), which now
permits an adverse inference instruction only when the court finds that a spoliating party
purposefully and willfully destroys evidence and that party âacted with the intent to deprive
another party of the information's use in the litigation.â Fed. R. Civ. P. 37(e)(2). The new Rule
37 ârejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99
8
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(2d Cir. 2002)5, that authorize the giving of adverse-inference instructions on a finding of
negligence or gross negligence.â Fed. R. Civ. P. 37(e)(2) Advisory Committee's Note to 2015
Amendment; see also Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368, at *7
(D. Conn. Apr. 29, 2016) (recognizing abrogation of Residential Funding). There is no claim of
spoliation â no information has been lost or destroyed since the threat or initiation of litigation
when there would have been a duty to preserve. There is no bad faith. Ms. Maxwell has
completely complied with all Court Orders and there are no accessible accounts or electronic
devices that have not been searched.
i. The cases cited by Plaintiff are not the controlling standards, and Plaintiff
fails to establish the elements required for an adverse inference
Plaintiff relies heavily on her previously briefed motion requesting an adverse inference
relying on factors in a single case, Residential Funding Corp. v. DeGeorge Financial Corp., 306
F.3d 99, 108 (2nd Cir. 2002). This case sets forth the standard for an adverse inference based on
the inherent powers of the Court (not under Rule 37(b)) where the party failed to produce
relevant documents prior to the commencement of trial. Id. (âwhere, as here, an adverse
inference instruction 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 âa culpable state of mindâ; and (3) that the missing evidence is ârelevantâ to the
partyâs claim or defense such that a reasonable trier of fact could find that it would support that
claim or defenseâ). By contrast, however, courts have repeatedly noted that an adverse
inference, and application of the Residential Funding test, are not appropriate for a mere delay in
production, especially when all documents are produced prior to depositions and trial. See
5
This is the primary case relied on by Plaintiff in support of both of her Motions for an adverse inference.
9
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Psihoyos v. John Wiley & Sons, Inc., No. 11CV01416, 2012 WL 3601087 (S.D.N.Y. June 22,
2012) (refusing to grant adverse inference instruction where Plaintiff did not confer to obtain
requested discovery, and noting âPlaintiff does not cite to a single case where an adverse
inference instruction was ordered based on the late production of a documentâ).6 Here, there was
no delay in production â there was and is nothing additional to produce. All documents were
produced well in advance of trial, prohibiting an adverse inference.
Even if the Residential Funding factors were applicable, Plaintiff fails to carry her burden
of proving those factors are present in this case. Defendant does not contest that she is obligated
to comply with this Courtâs Orders. She has done so. She has collected all of her electronically
stored information, and run all agreed upon search terms â and then re-run the searches when
Plaintiff further expanded her demands. The result of the application of these search terms is
proof that she has been compliant with her discovery obligations all along. No new non-
privileged documents were captured through utilization of the process demanded by Plaintiff. As
Ms. Maxwell previously stated in response to the Motion for forensic examination, she had run
comprehensive search terms, thoroughly reviewed her records and previously produced all
responsive documents in her possession.7
The second factor, that âthe party that failed to timely produce the evidence had âa
culpable state of mindââ is likewise lacking. There is no claim of Defendant acting with a
6
See also Phoenix Four, Inc., No. 05 CIV. 4837(HB), 2006 WL 1409413, at *7 (S.D.N.Y. May 23, 2006)
(holding that a sanction as severe as an adverse inference was not warranted where defendants came forward with
the evidence, even though it was after the close of discovery); Williams v. SaintâGobain Corp., No. 00 Civ. 502,
2002 WL 1477618, at *2 (W.D.N.Y. June 28, 2002) (holding that no basis for adverse inference instruction existed
where defendant failed to produce emails until the eve of trial and there was no evidence of bad faith); In re A & M
Florida Properties II, LLC, No. 09-15173 (AJG), 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010)
(declining to impose adverse inference instruction where documents were belatedly produced, but there was no bad
faith).
7
Plaintiffâs argument that she has been or will be prejudiced is illogical given that there are no documents
that have not been produced, and there never have been any responsive documents missing from production.
10
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