gov.uscourts.nysd.447706.1256.12.pdf

Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 1 of 32 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------X ......................................... VIRGINIA L. GIUFFRE, Plaintiff, v. 15-cv-07433-RWS GHISLAINE MAXWELL, Defendant. --------------------------------------------------X DEFENDANT’S COMBINED MEMORANDUM OF LAW IN OPPOSITION TO EXTENDING DEADLINE TO COMPLETE DEPOSITIONS AND MOTION FOR SANCTIONS FOR VIOLATION OF RULE 45 Laura A. Menninger Jeffrey S. Pagliuca HADDON, MORGAN, AND FOREMAN, P.C. East 10th Avenue Denver, CO 80203 303.831.7364 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 2 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 3 of 32 TABLE OF AUTHORITIES Carlson v. Geneva City School Dist., 277 F.R.D. 90 (W.D.N.Y. 2011); compare Reese v. Virginia Intern. Terminals, Inc., 286 F.R.D. 282 (E.D. Va. 2012) ............................................ 6 Fox Industries, Inc. v. Gurovich, No. 03–CV–5166, 2006 WL 2882580, *11 (E.D.N.Y. Oct. 6, 2006) ......................................................................................................................................... 19 Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.2003). ..................................................... 5 Iantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) ................................. 6 LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997) .......................................................... 16 Murphy v. Board of Educ., 196 F.R.D. 220, 222 (W.D.N.Y.2000) .............................................. 19 Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012) ........................................................................................................................................... 5 Sokol Holdings, Inc. v. BMD Munai, Inc., 05 Civ. 3749 (KMW)(DF), 2009 WL 2524611 at *7 (S.D.N.Y. Aug. 14, 2009) ........................................................................................................... 5 Usov v. Lazar, 13-cv-818 (RWS), 2014 WL 4354691, at *15 (S.D.N.Y. Sept. 2, 2014) ............. 20 ii Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 4 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 5 of 32 allegations about Ghislaine Maxwell are – or rather are not – true. The attempted service of subpoenas on Epstein, Kellen and Marcincova all violated Rule 45(a)(4) and should be sanctioned by this Court. As to all of these witnesses, Plaintiff has fallen far short of the “good cause” required by Rule 16(b)(4) to modify the Scheduling Order. In fact, for the most part, her failures to actively pursue depositions with these witnesses qualifies as in-excusable neglect: She frittered away seven of the eight months of the discovery period and now has placed Ms. Maxwell, this Court, and the witnesses in the untenable position of trying to accommodate her last-minute scramble. In the absence of any acceptable excuses, and for the limited evidentiary value that most of the requested witnesses can provide, this Court should deny the request for the extra time to take these six depositions. The only witnesses for whom depositions should be permitted following the discovery cut-off are: (1) Ms. Sharon Churcher, Plaintiff’s friend, advocate and former journalist with the Daily Mail, who filed a Motion to Quash her subpoena on the day before her scheduled deposition,2 and (2) Plaintiff, who refused to answer questions at her deposition concerning highly relevant, non-privileged information.3 Alternatively, if the Court is to grant additional time for Plaintiff to take depositions, Ms. Maxwell will be unduly prejudiced without sufficient additional time to (a) secure any witnesses to rebut testimony gleaned from these witnesses, (b) conduct discovery of Plaintiff’s retained experts, (c) submit a summary judgment motion which includes facts learned from these late depositions, and (d) prepare for trial. Thus, if the Court grants Plaintiff’s motion, the remaining deadlines in the Scheduling Order ought to be extended accordingly. 2 Ms. Churcher’s motion to quash will be heard this Thursday by the Court. 3 Ms. Maxwell is filing simultaneously with this Response a Motion to Re-Open Plaintiff’s Deposition. 2 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 6 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 7 of 32 case, already has sued Glenn Dubin, Epstein’s friend, had counsel who was totally cooperative in the rescheduling and reported fanciful and never-before heard claims about Ms. Maxwell, the Dubins and others that he has never reported to any law enforcement even though he claims that he witnessed potential kidnappings and sexual assaults on children.5 Plaintiff’s claim that Mr. Rizzo is an “example of delay that has harmed [her] ability to obtain all depositions in a timely manner” (Mot. at 3) is specious. Contrary to Plaintiff’s assertion, discovery began in this case on October 23, 2015, following the parties’ Rule 26(f) conferral. See Fed.R.Civ.P. 26(d)(1). At the Rule 16(b) scheduling conference on October 28, 2015, this Court directed the parties to complete all fact discovery by July 1, 2016. (Doc. #13) On November 30, 2015, contemporaneous with the filing of her Rule 12(b) Motion to Dismiss, Ms. Maxwell also requested of this Court a stay of discovery pursuant to Rule 26(c). (Doc. #17) That motion was denied on January 20, 2016, with an additional two-week period granted to respond to Plaintiff’s First Request for Production of Documents.6 The discovery was thus never stayed. Plaintiff erroneously asserts that that discovery “did not commence in this matter until” February 8. What she means is that she neglected to seek any non-witness depositions until then; nothing in the Rules of Civil Procedure, this Court’s Orders, or the law prevented Plaintiff from doing so at any point after October 23, 2015.7 Plaintiff has had over eight months to subpoena 5 See, Menninger Declaration, Ex. A (Rizzo deposition transcript excerpts). Of course, Plaintiff’s counsel has engaged in their own last-minute “unavailability” for a deposition scheduled by Ms. Maxwell, as to Plaintiff’s former fiancé, a witness who is hostile, required numerous service attempts at great cost and inconvenience, and who then (because of Plaintiff’s last minute unavailability) had to be re-served by a process server who swam through a swamp to get to his home, at additional cost and inconvenience. 6 By agreement of the parties, the time to respond was extended an additional six days because defense counsel was in a jury trial at the time the Court’s Order was handed down. 7 See, e.g., Pltf’s Opp’n to Mot. to Stay (Doc. #20) at 17 n.8 (“As of the date of this filing, zero (0) disposition [sic] notices have been propounded on the Defendant.”). 4  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 8 of 32 witnesses, schedule depositions and conduct them. Instead, she waited until the last minute and now complains of lack of time. Any lack of time is a product of her own bad faith and negligent litigation tactics and should not be sanctioned by this Court. The failure to timely secure the depositions of the remaining six witnesses is through no fault of Ms. Maxwell or her counsel. As to these witnesses, Ms. Maxwell and her counsel have played no role in hindering Plaintiff’s ability to depose the witnesses; in fact, as to four of the six Plaintiff attempted to serve subpoenas on the witnesses before ever providing notice to the defense, in clear violation of Rule 45(a)(4). LEGAL AUTHORITY Rule 16(b) permits modification of a scheduling order only upon a showing of “good cause.” To satisfy the good cause standard “the party must show that, despite its having exercised diligence, the applicable deadline could not have been reasonably met.” Sokol Holdings, Inc. v. BMD Munai, Inc., 05 Civ. 3749 (KMW)(DF), 2009 WL 2524611 at *7 (S.D.N.Y. Aug. 14, 2009) (emphasis added) (citing Rent-A-Center Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (McMahon, J.)); accord Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (“ ‘[G]ood cause’ depends on the diligence of the moving party.”); Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012) (Engelmeyer, J.) (“To show good cause, a movant must demonstrate that it has been diligent, meaning that, despite its having exercised diligence, the applicable deadline could not have been reasonably met.”). Good cause depends on the diligence of the moving party in seeking to meet the scheduling order. Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.2003). The Oxford Dictionary defines “diligence” as “careful and persistent work or effort.” See “diligence” at http://www.oxforddictionaries.com/us/definition/american_english/diligence (last accessed on 5 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 9 of 32 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 10 of 32 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 11 of 32 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 12 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 13 of 32 Gow, for a deposition but Defendant has refused…despite acknowledging that Defendant plans to call Mr. Gow for testimony at trial.” Id. In truth, Plaintiff sent a letter on May 23 which read in its entirety, “This letter is to seek your agreement to produce Ross Gow for deposition, as the agent for your client, Ms. Maxwell. We can work with Mr. Gow’s schedule to minimize inconvenience. Please advise by Wednesday, May 25, 2016, whether you will produce Mr. Gow or whether we will need to seek relief from the Court with respect to his deposition.” Menninger Decl. Ex. E. That was the first communication regarding any deposition of Mr. Gow. Two days later, defense counsel requested any “legal authority that would allow Ms. Maxwell to ‘produce’ Ross Gow for a deposition” or “any rule or case that would either enable or require her to do so.” Id. Plaintiff never responded. She also has not explained when or how Ms. Maxwell “acknowledged” her “plans to call Mr. Gow for testimony at trial,” nor why that is relevant to whether Plaintiff has demonstrated good cause for her own failure to take steps to depose a foreign witness deposition until June 17, for a witness she was aware before even filing the Complaint. During the hearing on March 24, this Court stated that it would consider expect to see “good faith showing” of efforts to comply with the schedule and “an inability because of Hague Convention problems,” before it would consider changing the Scheduling Order. Ms. Maxwell submits that waiting until June 17, two weeks before the end of discovery, to even begin the Hague Convention process falls far short of any such good faith showing and the request for leave to take Mr. Gow’s testimony beyond July 1 should be denied. C. Jean Luc Brunel With regard to Jean Luc Brunel, Plaintiff simply asserts that he was “subpoenaed,” and “set for mid-June deposition[],” but “through counsel” has “requested we change the dates of [his] deposition.” Mot. at 4. That is her entire argument. She omits key facts that would, 10  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 14 of 32 instead, demonstrate her lack of diligence in securing Mr. Brunel’s testimony and also show that she has waived any right to seek an out-of-time deposition. Plaintiff first issued a Notice of a Rule 45 subpoena for documents from Mr. Brunel on February 16, at an address “c/o” attorney, Joe Titone. No documents were ever produced pursuant to that subpoena. Menninger Decl., Ex. F. Then, on May 23, 2016, Plaintiff issued a new “Notice of Subpoena Duces Tecum,” attached to which was actually a subpoena for deposition testimony to occur on June 8, at 9:00 a.m. in New York. Id. Again, the subpoena was addressed “c/o” attorney Robert Hantman. Then, on June 2, Plaintiff’s counsel sent an email that they had received “an email yesterday from Mr. Brunel's attorney saying he needs to reschedule. I believe he is trying to get us new dates today or tomorrow.” Id. The “scheduled date” of June 8 came and went without any indication of any new dates provided by Mr. Brunel’s counsel. The following week, Plaintiff’s counsel stated in a phone conversation that Mr. Brunel’s counsel said his client had gone to France and it was unclear when he would be returning to the United States. Following the filing of the instant motion, counsel for Ms. Maxwell requested copies of the certificates of service for all of Plaintiff’s Rule 45 subpoenas in this case. Plaintiff’s counsel provided certificates on June 14. Notably absent was any certificate of service for Mr. Brunel. Thus, either Mr. Brunel was never served, or he was served and Plaintiff unilaterally extended his compliance date to an unscheduled time in the future. Either way, the time to complain about a witness’s non-compliance is at or near the time it occurs. Failure to timely complain regarding non-compliance with a subpoena constitutes a waiver. In any event, whether served or not, Mr. Brunel apparently promised to provide new dates before his deposition date came and went, did not do so, has left the country and not indicated a present intention to return. Given Plaintiff’s 11  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 15 of 32 role in failing to compel him to attend a deposition, no “good cause” has been demonstrated to take the deposition of Mr. Brunel after July 1. D. Jeffrey Epstein As with the other witnesses, Plaintiff has failed to demonstrate “good cause” for seeking to depose Jeffrey Epstein out of time. Plaintiff claims that she was unable to secure service on Mr. Epstein until May 27, 2016, because his counsel “refused to accept service” until she filed her motion for alternative service. The documents reflect the opposite: Mr. Epstein’s attorney agreed to accept service on April 11, 2016, and it was only on May 27, 2016, that Plaintiff agreed. See Poe Declaration in Support of Motion to Quash Epstein Deposition, Ex. 3 (Doc. # 223-3). Plaintiff fails to explain her strategic decision, or negligence, in failing to respond for over six weeks to Mr. Weinberg’s email offering to accept service. Indeed, in another failure of candor, Plaintiff’s counsel also neglected to tell this Court about the email offer from Mr. Weinberg either in the instant motion or in her motion to serve Mr. Epstein by alternate means. Mot. at 2; Doc. # 160.8 Plaintiff apparently now claims that she never received that email from Martin Weinberg. All of the preceding communications, however, indicate that Mr. Weinberg promptly responded to Ms. McCawley’s inquiries. See, e.g., Poe Declaration, Ex. 2 (email of April 6 from Weinberg to McCawley (offering to let her know regarding acceptance of service on April 7)); email of McCawley in response (“That works fine – thank you.”)). Thus, if Ms. McCawley received no follow up response from Mr. Weinberg, as she now claims, when he had been corresponding 8 In another glaring omission from Plaintiff’s submissions to the Court on the topic of the service of Mr. Epstein, Plaintiff’s own counsel have strenuously litigated in other cases that Mr. Epstein is a resident of Florida, over his objection that he is a resident of the U.S. Virgin Islands. See, e.g., Menninger Decl., Ex. G (Motion to Quash Subpoena on Jeffrey Epstein, Broward County, Florida, 15-000072). Yet, all of Plaintiff’s purported attempts at service on Mr. Epstein were in New York. 12  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 16 of 32 with her previously theretofore, she had a duty to follow up on that inquiry. A failure to do so is plain vanilla neglect. Even after agreeing to the terms proposed by Epstein’s counsel on May 27, that is, location of the deposition in the U.S. Virgin Islands and subject to right to oppose the subpoena, Plaintiff then waited an additional three weeks until June 12, to even attempt to schedule Epstein’s deposition. Epstein Memorandum in Support of Mot. to Quash at 2 (Doc. # 222). Agreeing to take a deposition in the Virgin Islands on May 27, then waiting until June 12, to try to schedule a date for that deposition, when numerous other depositions had already been scheduled in New York, Florida, and California for the balance of June, is either neglect or strategic posturing by Plaintiff. Either way, it does not amount to “good cause” for such a deposition to take place beyond July 1. Finally, Plaintiff suggests, without factual foundation, that Ms. Maxwell played some role in Mr. Epstein’s counsel’s refusal to accept service. See Mot. at 2 (“forced to personally serve the Defendant’s former boyfriend, employer, and co-conspirator”). As the timeline and documents now reveal, however, Plaintiff failed to provide notice to Ms. Maxwell that she was attempting to serve a Rule 45 subpoena on Mr. Epstein for more than 7 weeks! Id. Plaintiff states that she began her service attempts on March 7, 2016. The very first Notice of Subpoena and Deposition served on Ms. Maxwell, however, is dated April 27. Menninger Decl. Ex. H. Thus, between March 7 and April 27, Ms. McCawley engaged in repeated attempts to serve Mr. Epstein a Rule 45 subpoena (including a request for documents) without providing the proper notice to the parties pursuant to Rule 45(a)(4) (“If the subpoena commands the production of documents… , then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.”) (emphasis added). As detailed below, this was 13  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 17 of 32 not an isolated incident and merits sanction. In any event, it is difficult to imagine how it is Ms. Maxwell’s fault that Plaintiff could not serve Mr. Epstein when she was never put on notice of any attempt to do so. Given that Plaintiff knew as of April 11 the conditions pursuant to which Mr. Epstein would accept service through counsel, yet waited until May 27 to agree to those terms, and then waited another nearly three weeks to attempt to schedule Mr. Epstein’s deposition on a date available for his counsel and Ms. Maxwell’s counsel, Plaintiff has fallen far short of demonstrating “good cause” for taking Mr. Epstein’s deposition beyond the end of the fact discovery cut-off. E. Nadia Marcincova and Sarah Kellen Finally, Plaintiff seeks the depositions of two other witnesses – Sarah Kellen and Nadia Marcincova -- who, she complains, “despite being represented by counsel, have refused to accept service.”9 Mot. at 3. Plaintiff claims that her process servers tried for three weeks (from April 25 until May 18) to personally serve Ms. Kellen and Ms. Marcincova with subpoenas duces tecum. She did not explain, however, why she waited until April to try to serve these two witnesses, about whom her attorneys have known since 2008. She also has not explained to this Court any legally relevant or admissible evidence that either possess, nor how she intends to introduce that evidence in a trial of this defamation claim between Plaintiff and Ms. Maxwell. Apart from these witnesses stated intent to take the Fifth Amendment which renders their testimony inadmissible, as discussed more fully below, neither witness has any relevant testimony to offer because Plaintiff never made a public statement about either one of them. 9 Actually, in Plaintiff’s Motion for Leave to Serve Three Deposition Subpoenas by Means Other than Personal Service, Plaintiff details that Ms. Marcincova’s counsel stated he no longer represents her. (Doc. #161 at 5) (“counsel for Ms. Giuffre reached out to Ms. Marcinkova’s former counsel but he indicated that he could not accept service as he no longer represents her”). It is unclear then, why Plaintiff persists in representing to this Court that Ms. Marcincova instructed her counsel not to accept service, or why Plaintiff seeks to serve Ms. Marcincova through her former counsel. 14  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 18 of 32 Plaintiff did not include either woman in her Sharon Churcher-paid interviews, nor were they mentioned in Plaintiff’s Joinder Motion of December 30, 2014. Thus, neither Plaintiff’s allegations about Ms. Maxwell, nor Ms. Maxwell’s denial of the same based on her personal knowledge, are implicated by anything that Ms. Kellen or Ms. Marcincova may have done with anyone else. Their testimony cannot corroborate Plaintiff’s account, nor can it shed light on whether Ms. Maxwell’s denial of that account is accurate, because Plaintiff’s account did not mention either of them. Finally as to these witnesses, Plaintiff once again documented her own failure to comply with Rule 45 in regard to attempts to serve these two witnesses. Six of the service attempts occurred on April 25 and April 26. Yet Plaintiff only provided Notice to Ms. Maxwell of her intent to serve the subpoenas on April 27. Menninger Decl. Ex. I. II. FIFTH AMENDMENT BY EPSTEIN, KELLEN OR MARCINCOVA NOT ADMISSIBLE IN THIS CASE AGAINST MS. MAXWELL The depositions of Epstein, Kellen and Marcincova do not constitute “good cause” to modify the scheduling order in this case for the additional reason that they all have represented to Plaintiff their intention to assert the Fifth Amendment protection as to all questions and such assertion will not be admissible evidence in this trial. Indeed, counsel for Mr. Epstein recently filed a Motion to Quash his subpoena based on the same legal principle that his deposition is unduly burdensome in light of the fact that it will not lead to admissible evidence. (Doc. # 221, 222, 223) The Court should consider this additional factor to decline a finding of “good cause” for extending the discovery deadline. Plaintiff wrongfully contends that any assertion of the Fifth Amendment during the depositions of Epstein, Kellen and Marincova will be admissible in the trial of this defamation matter (where none of those individuals are parties) based on an “adverse inference” that can be 15  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 19 of 32 drawn against Ms. Maxwell. See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997). In fact, none of the LiButti factors support her argument. While noting that Ms. Maxwell anticipates more extensive briefing on this issue in support of Mr. Epstein’s Motion to Quash, a few facts bear mentioning here:  Ms. Maxwell was the employee of Mr. Epstein --in the 1990s -- not the other way around. Mr. Epstein has never worked for or been in control of Ms. Maxwell.  Ms. Maxwell and Mr. Epstein have had no financial, professional or employment relationship in more than a decade, many years before 2015 when the purportedly defamatory statement was published. Ms. Maxwell testified that she has not spoken to Mr. Epstein in 2 years.  Maxwell has not vested any control in Mr. Epstein “in regard to key facts and subject matter of litigation.” As the Court is well aware from review of emails submitted in camera (and later produced to Plaintiff): o Mr. Epstein and his counsel gave advice to Maxwell regarding whether she should issue a statement after January 2, 2015. In one, Mr. Epstein even suggested what such a statement might say. Maxwell never issued any additional statement. o Maxwell had her own counsel who operated independently of Mr. Epstein and his counsel.  Epstein is not “pragmatically a non-captioned party in interest” in this litigation nor has he “played controlling role in respect to its underlying aspects.” Epstein is not, despie Plaintiff’s suggestion, paying Ms. Maxwell’s legal fees. Plaintiff sought by way of discovery any “contracts,” “indemnification agreements,” “employment agreements” between Ms. Maxwell and Epstein or any entity associated with Epstein, from 1999 to the present. Ms. Maxwell responded under oath that there are no such documents. Epstein played no role in the issuance of the January 2 statement, nor has he issued any public statement regarding Plaintiff. Indeed, Plaintiff and Epstein fully resolved any claims against one another by way of a confidential settlement in 2009, another action in which Ms. Maxwell had no role.  Assertion of the privilege by Epstein does not advance any interest of Ms. Maxwell’s. Quite to the contrary, Epstein would be a key witness in her support, exonerating her from Plaintiff’s allegations regarding sex abuse, sexual trafficking and acting as his “madam” to the stars. As proof, one need look no further than emails already reviewed by this Court. In an email sent by Epstein to Ms. Maxwell on January 25, 2015, while the media maelstrom generated by Plaintiff’s false claims continued to foment, he wrote: “You have done nothing wrong and I would urge you to start acting like it. Go outside, head high, not as an escaping convict. Go to parties. Deal with it.” Menninger Decl. Ex. J 16 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 20 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 21 of 32 These correspondences demonstrate that Ms. Maxwell has no control over Mr. Epstein in regards to the alleged defamation statement, he had no role in issuance of the statement, he has no benefit in the outcome of this litigation and he played no controlling role in its respect. Similarly, there is not any evidence at all to support an adverse inference to be drawn from either Sarah Kellen nor Nadia Marcincova’s assertion of the Fifth. Ms. Maxwell hardly knows either woman, never worked with them, they have had nothing to do with this litigation and do not stand to benefit from it, especially as Plaintiff has never made any allegations about her involvement with either of the two of them, they are simply irrelevant to this defamation action. III. PLAINTIFF’S BAD FAITH DISCOVERY TACTICS SHOULD NOT BE REWARDED WITH EXTRA TIME 1. Plaintiff’s Rule 26 Revolving Door Plaintiff’s army of lawyers (who collectively have been litigating matters related to Jeffrey Epstein since 2008) served their Rule 26 initial disclosures on November 11, 2015. Those disclosures listed 94 individual witnesses with knowledge regarding the facts of this case, yet provided addresses (only of their counsel) as to just two, Jeffrey Epstein and Alan Dershowitz. Plaintiff then also listed categories of witnesses such as “all other then-minor girls, whose identities Plaintiff will attempt to determine” and “all pilots, chauffeurs, chefs, and other employees of” Ms. Maxwell or Jeffrey Epstein. Plaintiff claimed as to her Rule 26 disclosures that “only a fraction of those individuals will actually be witnesses in this case, and as discovery progresses, the list will be further narrowed.” (Doc. #20 at 17) The opposite has happened. Between November 11 and March 11, Plaintiff trimmed her Rule 26 list of persons with knowledge from 94 to 69, inexplicably removing 34 names, but adding 12 more. She removed, 18 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 22 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 23 of 32 requirement that prior notice “must be given has important underpinnings of fairness and efficiency.” Cootes Drive LLC v. Internet Law Library, Inc., No. 01– CV–9877, 2002 WL 424647, *2 (S.D.N.Y. Mar. 19, 2002). Plaintiff fails to provide an adequate explanation or argument for how a same-day notification satisfies Rule 45's requirements. See, e.g., id. (“[C]ounsel for the [offending party] offered no explanation or excuse for their failure to comply with the rule's strictures. They did not attempt to defend the timeliness of their notice. The [offending party's] admitted violation ... cannot be countenanced.”). Usov v. Lazar, 13-cv-818 (RWS), 2014 WL 4354691, at *15 (S.D.N.Y. Sept. 2, 2014) (granting motion to quash the subpoenas where notice given on the same day and served beyond 100 mile limitation of Rule 45). In that case, Plaintiff had provided same day notice of the issuance of a subpoena. Here, we have repeated attempts to serve a subpoena over the course of days before any notice was given to Ms. Maxwell. As described previously, Plaintiff has amply documented her own violations of the Rule by detailing her attempts to serve subpoenas duces tecum before ever providing notice to Ms. Maxwell with regards to witnesses Epstein, Kellen and Marcincova. Likewise, with respect to witness, Alexandra Hall, Plaintiff served the subpoena prior to providing notice. See Menninger Decl. Ex. L. Served subpoenas before providing Notice under Rule 45. Accordingly, Plaintiff moves to quash the subpoenas on Epstein, Kellen and Marcincova as violations of Rule 45’s notice provision. Ms. Maxwell further requests sanctions pursuant to Rule 37 for these documented violations. With respect to Ms. Hall, who was deposed already earlier today, Ms. Maxwell believes that she did not offer any admissible testimony at her deposition. If Plaintiff’s seek to introduce her testimony, the defense reserves the right to exclude such testimony both on evidentiary grounds as well as in violation of Rule 45’s notice provision.11 IV. MS. MAXWELL’S GOOD FAITH EFFORTS TO CONDUCT DISCOVERY 11 Counsel for Ms. Maxwell only learned of the Rule 45 violation this past weekend after reviewing certificates of service provided by Plaintiff’s counsel last week, without sufficient time to file a motion to quash the subpoena on Ms. Hall. 20  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 24 of 32 As already documented in previous pleadings, Ms. Maxwell’s counsel has engaged in significant and repeated efforts to conduct discovery in this case in a professional, civil manner, especially as it relates to the depositions of non-parties. On February 25, 2016, counsel for Ms. Maxwell requested that the lawyers confer by telephone to arrange a schedule for the non-party depositions to occur in various states and countries.12 Plaintiff ignored that request, and requests of the same ilk made on at least 6 different occasions in March and April. It was only on two and ½ months later, on May 5, 2016, when Plaintiff’s counsel finally responded with “as is becoming clear, both sides are going to be needing to be coordinating a number of depositions.”13 She then proposed a calendar which scheduled 13 additional depositions for Plaintiff and only 2 days (actually ½ days) for defendant to depose her remaining witnesses. 14 Defendant provided a calendar which allowed for both sides to take remaining depositions, but Plaintiff ignored it and continued to schedule depositions on dates for witnesses without consulting defense counsel for their availability first. Menninger Decl., Ex. M. Because of the breakdown in communications, defense counsel was left with little choice but to (a) show up at each of Plaintiff’s noticed depositions, in Florida and New York, and (b) issue subpoenas for witness depositions on other dates in June. For example, Plaintiff issued a 12 McCawley Decl. in Support of Request to Exceed Ten Deposition Limit, Exhibit 1 (Doc. # 173-1) at 28 (Letter of Menninger to McCawley (Feb. 25, 2015) (“I would suggest that rather than repeated emails on the topic of scheduling the various depositions in this case, or the unilateral issuance of deposition notices and subpoenas, you and I have a phone conference wherein we discuss which depositions are going to be taken, where, and a plan for doing them in an orderly fashion that minimizes travel and inconvenience for counsel and the witnesses. As you are well aware from your own practice of law, attorneys have other clients, other court dates and other commitments to work around. The FRCP and Local Rules contemplate courtesy and cooperation among counsel in the scheduling and timing of discovery processes. This rule makes even more sense in a case such as this spanning various parts of the country where counsel must engage in lengthy travel and the attendant scheduling of flights, hotels and rental cars.”)). 13 Id. at 19. 14 Id. at 1-3. 21  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 25 of 32 Notice of Deposition for Juan Alessi on May 31, 2016, without any conferral with counsel, in Florida, fully aware that defense counsel would be traveling from Colorado. Defense counsel, in fact, did have to travel on Memorial Day to Florida for the 9:00 a.m. May 31 deposition. Mr. Alessi, however, did not appear on that date, believing that his deposition was for June 1, the same day that his wife had been subpoenaed to appear and because he and his wife live an hour away from Ft. Lauderdale. Thus, despite defense counsel’s herculean efforts, no deposition occurred on May 31. On June 1, Mr. Alessi appeared, but there was insufficient time to take his wife’s deposition, who presumably made the one hour drive for naught. Also, defense counsel then had to travel to New York for the June 2 hearing and back to Florida for a deposition of another witness, Mr. Rogers, that had been scheduled without input from defense counsel. Counsel for Plaintiff makes much of her efforts to serve witnesses Epstein, Marcincova and Kellen. She fails to advise the Court that Ms. Maxwell has been “forced” to expend great time, money and resources to serve Plaintiff’s own mother, father, former fiancé and former boyfriend. As described before, the defense even re-scheduled the deposition of Plaintiff’s former fiancé due to the last minute unavailability of Plaintiff’s counsel, although all counsel were already in Florida and had expended hundreds of dollars to serve him. Plaintiff made no effort to help serve those closest to her, including her own family members. Unlike Plaintiff, however, Ms. Maxwell and her counsel are fully aware that such are the difficulties of litigation. We do not ascribe to Plaintiff the blame. Having flown to Florida a total of four separate times to attend depositions of five of Plaintiff’s noticed witnesses, defense counsel has borne the brunt of Plaintiff’s mismanagement of counsel and witness time. Defense counsel scheduled their own Florida depositions of three witnesses to occur during two of the four trips. Defense counsel offered to, and did, schedule the 22  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 26 of 32 two Colorado non-party witnesses the same week in May, so as minimize Plaintiff’s counsel’s travel obligations. Plaintiff, however, rescheduled the deposition of Mr. Rizzo in New York for a week after this Court had a hearing, rather than accommodating any attempt to have the New York deposition occur when all counsel were already present in NY. To the extent the Court wishes to consider the good faith efforts of defense counsel in conducting depositions when deciding whether to grant Plaintiff additional time, defense has more than met their burden. V. GOOD CAUSE EXISTS TO TAKE RE-DEPOSE PLAINTIFF AND TO DEPOSE SHARON CHURCHER EXISTS In contrast to the lack of good cause to extend discovery for Plaintiff’s six witnesses, Ms. Maxwell seeks leave of the Court to take depositions beyond June 30. First, Ms. Maxwell properly served a deposition subpoena (and provided appropriate notice to Plaintiff’s counsel) on Plaintiff’s friend, confidante and former-Daily Mail journalist, Sharon Churcher for a deposition to occur in New York on June 16. Menninger Decl. Ex. N. On June 15, the day before her scheduled deposition, Ms. Churcher’s counsel filed a Motion to Quash. That motion is to be heard by this Court on June 23. Should the Court deny the Motion to Quash, Ms. Churcher’s deposition would need to be re-scheduled. Dates in early July would be sufficient for counsel. Similarly, Ms. Maxwell is filing simultaneously with this Motion a request to re-open the deposition of Plaintiff on the grounds, inter alia, that she failed to provide numerous documents (ordered to be produced by this Court) until after her deposition (and still has failed to provide others)15, she materially changed substantive and significant portions of her testimony after the 15 For example, Ms. Giuffre testified that she had approximately 8 boxes, which included documents pertinent to this case, which she shipped from her home in Colorado to Australia in October 2015 to an undisclosed location (at her deposition, she would not testify where in Australia the boxes were located), and that the boxes had not been searched for responsive documents. Menninger Decl. Ex. D. In repeated conferrals following her deposition, on May 19, her counsel finally agreed to secure the boxes. As of today’s date, the boxes still have not arrived, 23  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 27 of 32 fact through her errata sheet on May 31, and she refused to answer material questions at her deposition on the advice of counsel, including for example, which of Ms. Churcher’s many quotes attributed to her were incorrect. See,e g., Menninger Decl. Ex. D, referenced supra. As with Ms. Churcher’s deposition, the re-opened deposition of Plaintiff could occur in early July, assuming she provides the Court-ordered documents timely. VI. ALTERNATIVELY, ALL OTHER DEADLINES NEED TO BE EXTENDED Finally, Plaintiff glibly asserts that she seeks only 30 extra days to conduct her depositions, but does not want any other dates moved. Of course, that inures to her benefit and to Ms. Maxwell’s detriment. July already was scheduled for expert disclosures (Plaintiff has yet to disclose her retained expert, and thus the defense has been unable to secure a rebuttal expert). Likewise, should any new information be learned in these late depositions that requires rebuttal, Ms. Maxwell will be unable to secure such evidence on a timely basis. Further, summary judgment motions are due in this case on August 3. If depositions continue throughout August, Ms. Maxwell’s ability to include any late-learned information in her anticipated motion will be jeopardized. Finally, the trial is scheduled for October, continuing fact discovery until August seriously impinges on Ms. Maxwell’s ability to prepare for that trial, including preparing witnesses, exhibits and testimony. WHEREFORE, Ms. Maxwell requests that the Motion to Extend the Deadline to Complete Depositions be denied; alternatively, if the deadline is extended for any of the listed six witnesses, Ms. Maxwell requests that the dates for expert discovery, dispositive motions and the trial date by extended as well. Further, Ms. Maxwell requests sanctions for Plaintiff’s failures to comply with the notice provisions of Rule 45(a)(4). apparently having been put on the slow boat to the US. One can only imagine where on the high seas the boxes may be located now. Of course, there were many alternative methods to search the boxes. The unknown custodians in Australia for example could have simply looked in them to see whether they contained any responsive documents. 24 Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 28 of 32 Dated: June 20, 2016. Respectfully submitted, /s/ Laura A. Menninger Laura A. Menninger (LM-1374) Jeffrey S. Pagliuca (pro hac vice) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Phone: 303.831.7364 Fax: 303.832.2628 [email protected] Attorneys for Ghislaine Maxwell 25  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 29 of 32 CERTIFICATE OF SERVICE I certify that on June 20, 2016, I electronically served this DEFENDANT’S COMBINED MEMORANDUM OF LAW IN OPPOSITION TO EXTENDING DEADLINE TO COMPLETE DEPOSITIONS AND MOTION FOR SANCTIONS FOR VIOLATION OF RULE 45 via ECF on the following: Sigrid S. McCawley Paul G. Cassell Meridith Schultz 383 S. University Street BOIES, SCHILLER & FLEXNER, LLP Salt Lake City, UT 84112 401 East Las Olas Boulevard, Ste. 1200 [email protected] Ft. Lauderdale, FL 33301 [email protected] [email protected] J. Stanley Pottinger Bradley J. Edwards 49 Twin Lakes Rd. FARMER, JAFFE, WEISSING, EDWARDS, South Salem, NY 10590 FISTOS & LEHRMAN, P.L. [email protected] 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 [email protected] /s/ Nicole Simmons Nicole Simmons 26  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 30 of 32 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------X ............................................ VIRGINIA L. GIUFFRE, Plaintiff, v. 15-cv-07433-RWS GHISLAINE MAXWELL, Defendant. --------------------------------------------------X Declaration Of Laura A. Menninger In Support Of Defendant’s Response in Opposition to Extending Deadline to Complete Depositions and Motion for Sanctions for Violations of Rule 45 I, Laura A. Menninger, declare as follows: 1. I am an attorney at law duly licensed in the State of New York and admitted to practice in the United States District Court for the Southern District of New York. I am a member of the law firm Haddon, Morgan & Foreman, P.C., counsel of record for Defendant Ghislaine Maxwell (“Maxwell”) in this action. I respectfully submit this declaration in support of Defendant’s Response in Opposition to Extending Deadline to Complete Depositions and Motion for Sanctions for Violations of Rule 45. 2. Attached as Exhibit A (filed under seal) is a true and correct copy of excerpts from the Deposition of Rinaldo Rizzo on June 10, 2016, and designated by Plaintiff as Confidential under the Protective Order. 3. Attached as Exhibit B (filed under seal) is a true and correct copy of The Billionaire Playboys Club book manuscript drafted by Plaintiff, designated by Plaintiff as Confidential under the Protective Order Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 31 of 32  Case 1:15-cv-07433-LAP Document 1256-12 Filed 05/03/22 Page 32 of 32 13. Attached as Exhibit L (filed under seal) is the certificate of service for 14. Attached as Exhibit M is a true and correct copy of my correspondence to Plaintiff’s counsel of May 25, 2016. 15. Attached as Exhibit N is a Notice of Subpoena and Deposition for Sharon Churcher on June 16, and the certificate of service dated June 4. By: /s/ Laura A. Menninger Laura A. Menninger CERTIFICATE OF SERVICE I certify that on June 20, 2016, I electronically served this Declaration Of Laura A. Menninger In Support Of Defendant’s Response in Opposition to Extending Deadline to Complete Depositions and Motion for Sanctions for Violations of Rule 45 via ECF on the following: Sigrid S. McCawley Paul G. Cassell Meridith Schultz 383 S. University Street BOIES, SCHILLER & FLEXNER, LLP Salt Lake City, UT 84112 401 East Las Olas Boulevard, Ste. 1200 [email protected] Ft. Lauderdale, FL 33301 [email protected] [email protected] J. Stanley Pottinger Bradley J. Edwards 49 Twin Lakes Rd. FARMER, JAFFE, WEISSING, EDWARDS, South Salem, NY 10590 FISTOS & LEHRMAN, P.L. [email protected] 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 [email protected] /s/ Nicole Simmons Nicole Simmons 3