EFTA01737512.pdf

1 G6ndgium UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x Plaintiff, New York, N.Y. 5 v. 15 Civ. 7433(RWS) 6 GHISLAINE MAXWELL, 7 Defendant. 8 x 9 June 23, 2016 12:19 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY 16 MEREDITH L. SCHULTZ 17 HADDON MORGAN AND FOREMAN, P.C. Attorneys for Defendant 18 BY: JEFFREY PAGLIUCA LAURA A. MENNINGER 19 DAVIS WRIGHT TREMAINE LLP 20 Attorneys for Respondent Sharon Churcher BY: ERIC J. FEDER 21 LAW OFFICES OF GREGORY L. POE PLLC 22 Attorneys for Respondent Jeffrey Epstein BY: GREGORY L. POE 23 RACHEL S. LI WAI SUEN 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024108 EFTA01737512  2 G6ndgium (Case called) THE COURT: Extending discovery. MS. McCAWLEY: Yes, your Honor. This is Sigrid 4 McCawley on behalf of the plaintiff, and we had filed a motion 5 for additional time to complete six depositions. Your Honor 6 may recall that we received an order on Monday that allowed for 7 alternative services to three of the witnesses that we were 8 seeking to depose. Our discovery cutoff right now is set for 9 June 30th, which is I believe next Friday, if I'm correct. So 10 at present we have six witnesses that we still need to depose, 11 the three that we had alternative service for, and then we have 12 Mr. Ross GOw, who was the defendant's agent who issued the 13 defamatory statement, Mr. Brunel -- 14 THE COURT: How much time do you want? 15 MS. McCAWLEY: Sorry. We were requesting 30 days to 16 complete those depositions to coordinate with their counsel and 17 then coordinate with the defendant's counsel and get those set, 18 and I believe we can do that without altering the Court's 19 deadline for a trial, which is set presently for November 20 I'm sorry, October 17th. 21 THE COURT: OK. What is wrong with that? 22 MR. PAGLIUCA: Your Honor, in theory, initially there 23 is nothing wrong with that. It seems to me that we're not 24 going to complete a variety of discovery issues by July 1. The 25 problem, I think, your Honor, is the cascading effect of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024109 EFTA01737513  3 G6ndgium extension. And if I could digress for a moment and just a moment? When we were here I think in March, the Court raised the issue 4 of was this enough time for discovery at that time. I told the 5 Court I didn't think so, and I didn't think that the trial date 6 was reasonable as a result of what I perceived to be problems 7 going forward with discovery. Counsel on the other side 8 opposed my suggestion as to extension of time at that point and 9 we proceeded. The Court agreed with the plaintiff and not with 10 me. 11 The problem I see, your Honor, is that now we are 12 scheduled to have expert disclosures due in July, dispositive 13 motions in August, and a trial date in October. I don't 14 believe that it is feasible, if we continue discovery out until 15 the end of July, to have expert discovery done by the end of 16 August. I don't believe it is going to be feasible to have 17 dispositive motions completed in the time set by the Court, and 18 all of that is going to push into whether or not we have an 19 October 18th trial date. 20 I think the Court also needs to consider, your Honor, 21 and of course is now familiar with the volume of paper that 22 gets filed in this court on a regular basis at all hours of the 23 day and night, and I anticipate that there are going to be 24 significant evidentiary issues that the Court is going to need 25 to rule on in advance of trial. The Court sees a harbinger of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024110 EFTA01737514  4 G6ndgium those issues today, I think, as a result of these subpoenas. All of that tells me that the prudent course of action in my view is to sort of try to sit down and rework some of these 4 discovery deadlines with an idea that we're going to actually 5 have realistic dates. 6 THE COURT: OK. Good. I'll extend the deadline 30 7 days. I'll direct counsel to meet and confer and see if they 8 can come up with a schedule that both sides will agree upon. 9 Second, the plaintiff wants to maintain certain 10 confidentiality designations. What is the problem? 11 MS. McCAWLEY: Yes, your Honor. 12 So, with respect to our revised Rule 26 disclosures, 13 we, in order to divulge all information relevant to the case, 14 had a list of individuals on there who are allegedly victims of 15 sexual abuse themselves as minors or witnessed things. So we 16 designated under our protective order in this case that Rule 26 17 disclosure as confidential. It was challenged under the 18 Protective Order. Once it is challenged, we have a ten-day 19 window to file something with the Court. So we filed our 20 motion for the protective order. 21 On Friday of this past week, on the 17th, they issued 22 a new defendants issued a new Rule 26 disclosure with 42 new 23 names on it, those of which were on our disclosures, without 24 marking it as confidential. So I sent them an email just 25 asking them to hold that as confidential until the Court has an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024111 EFTA01737515  5 G6ndgium opportunity to rule on whether or not those names can remain confidential under the protective order. So that is the status as we are right now. 4 So we are awaiting a ruling. We believe those 5 individuals should be protected under the Court's protective 6 order and those names kept confidential during the course of 7 this, and it is my understanding that defendants oppose that 8 position. 9 THE COURT: What is the attack? 10 MR. PAGLIUCA: Well, your Honor, under the terms of 11 the protective order, certain categories of information is 12 likely confidential. People's names, in my view, are not 13 confidential. I didn't choose to list these folks in what I 14 understand is a Rule 26(a) disclosure, which is a good faith 15 disclosure of people who may have information relevant to the 16 claims or defenses in the case. That's their listing. All it 17 is is the names of people. 18 I have absolutely no idea or ability to understand why 19 someone's name could be considered to be confidential. It is 20 their name. They use it every day. They walk around with it. 21 They have a driver's license with it. I don't understand how 22 names in a 26A(a) disclosure could be deemed confidential. 23 And what I view this as is just simply, you know, 24 another step in the process here of preventing access and use 25 of information. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024112 EFTA01737516  6 G6ndgium THE COURT: Well, you've got the information. MR. PAGLIUCA: I do have the information. THE COURT: Yes. 4 MR. PAGLIUCA: Why is it confidential? 5 THE COURT: Why? 6 MS. McCAWLEY: May I address that, your Honor? Did 7 you want me to address that? 8 THE COURT: Yes. 9 MS. McCAWLEY: Sorry. So with respect to the reason 10 why individuals who may have been victims of sexual assault 11 would be confidential, there is case law that we cite in our 12 brief, Doby v. Evans, which deals with using, for example, 13 pseudonyms of victims -- 14 THE COURT: Let's just -- I think we can shorthand in 15 the context of the patois of this case. 16 Victims. OK. You want to maintain the 17 confidentiality of the identity of the victims. OK? 18 MS. McCAWLEY: Yes, your Honor. 19 THE COURT: Beyond that? 20 MS. McCAWLEY: Right. Beyond that we are fine. 21 THE COURT: OK. All right. That will be maintained. 22 MS. McCAWLEY: Thank you. 23 THE COURT: Apple and Microsoft. Let me ask the 24 defense, seems to me the law bars the subpoenas. 25 MR. PAGLIUCA: I don't understand why, your Honor. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024113 EFTA01737517  7 G6ndgium think it's a legitimate Rule 45 subpoena. I don't understand why it would be barred under Rule 45. There is no objection by the providers of the information. They have indicated to us 4 that if there is a release that's provided to them by the 5 plaintiff, they will turn over the information. And I don't 6 understand what the problem is. This is information indeed, 7 your Honor, that the plaintiffs are required to produce to us 8 under our discovery requests and have not, which resulted in 9 these Rule 45 subpoenas. After the Rule 45 -- 10 THE COURT: Well, as far as Apple, my understanding 11 about Apple is that with respect to that, that material has 12 been reviewed by counsel and everything has been turned over 13 that's appropriate. 14 MS. SCHULTZ: That is correct, your Honor. 15 MR. PAGLIUCA: Well, if that's true, your Honor, then 16 the issue is moot and I agree. 17 THE COURT: If what? 18 MR. PAGLIUCA: The issue is moot if that is true. 19 THE COURT: So Apple is out. 20 Now, the problem with Microsoft, I'm not quite clear. 21 MR. PAGLIUCA: The problem for me or the problem for 22 them? 23 THE COURT: The problem for the plaintiffs. 24 MS. SCHULTZ: Thank you, your Honor. Meredith 25 Schultz, from Boies, Schiller & Flexner, on behalf of Ms. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024114 EFTA01737518  8 G6ndgium 1 My client had two email accounts with Microsoft. They are personal emails accounts. We have not been able to access that. 4 THE COURT: Why not? 5 MS. SCHULTZ: Well, it appears for one -- there is one 6 called live.com, and it appears for that, that that has been 7 administratively deleted. I don't have personal knowledge of 8 that, but when you put in the email address to try to recover 9 it, I get a message saying we don't recognize this one, "this 10 one" being the email address. That is Exhibit 1 to our brief 11 on this matter. 12 We wrote a letter to opposing counsel citing some 13 governing provisions of Microsoft's email policy that indicates 14 that due to inactivity they delete accounts after a certain 15 amount of time. It's my understanding that that has happened 16 to that account but I can't say so for sure. So we are unable 17 to access that whatsoever. 18 The second account is a hotmail.com account. We have 19 also been unable to access that. It appears that it still 20 exists, but despite multiple and diligent attempts to get into 21 that account, we have been unable to. And I have been involved 22 in those attempts myself personally. Accordingly, we have 23 captured and produced every electronic document to which we 24 have access. 25 And I'd like to speak a minute about the legality of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024115 EFTA01737519  9 G6ndgium the Microsoft subpoena. Even under Rule 26, it is a hopelessly broad subpoena. It is abusive civil discovery and on the face of it appears to violate the Electronic Communications Privacy 4 Act and the Stored Communications Act, federal laws. The email 5 seeks -- excuse me. The subpoena seeks every email that has 6 ever been sent to that account or sent from that account. 7 That's every single personal email. This is without 8 limitations, without exceptions, without a timeline. And 9 pursuant to these subpoenas, these emails are to be turned over 10 to defense counsel. So, plaintiff's counsel would not have an 11 opportunity to review for attorney-client privilege email, 12 review for relevance, and it wholly circumvents the protections 13 of the discovery process, which is why courts who have looked 14 at this issue have consistently rejected these broad subpoenas. 15 Defendants know that they are not entitled to every 16 single personal email plaintiff has ever sent or ever received 17 in the course of however many years these accounts were open. 18 In fact, Judge Kozinski in the Ninth Circuit allowed a civil 19 suit against those who propounded these improper subpoenas, and 20 that was with regard to a professional email account, as 21 opposed to personal email accounts, the issue in this case 22 THE COURT: Do we know what the date of this account 23 is? 24 MS. SCHULTZ: It's an old account. I think, 2011 -- I 25 know that it was -- at least one of them was active in 2011. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024116 EFTA01737520  10 G6ndgium It's impossible for me to determine at this point when it was opened and when it was last used because we don't have access to them. 4 THE COURT: Yes. OK. 5 MR. PAGLIUCA: Your Honor, this is the problem and I'm 6 going to be frank. This is a hide-the-ball problem. They tell 7 us -- so let me backup. 8 We were originally told these are the only email 9 accounts that the plaintiff had. When we deposed her, we found 10 out about these accounts. We then get into an issue with 11 counsel telling us, oh, we've done this due diligence search 12 and we can't access any of this information, these accounts are 13 closed. Well, then we look into it a little bit further and we 14 find out, indeed, the accounts are not closed; indeed, they 15 have been active, and there are indeed emails that are relevant 16 to the issues in this case that were sent and received out of 17 these accounts. That's a fact here. 18 Now, all they need to do, if they want to avoid 19 electronic privacy issues, is comply with their discovery 20 obligations, execute a release, and send it to Microsoft. 21 Microsoft will then give them the information. That's what we 22 have been told in response to this subpoena. 23 So to sit here and say, oh, it's overbroad and it's a 24 problem and you can't do it, you know, you can't have it both 25 ways. You either can't avoid discovery of something that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024117 EFTA01737521  11 G6ndgium are required to give up and then say, gee, we don't have access to it. That's the conundrum here, your Honor. I'm sorry we are here at this point. I agree, if 4 there is privileged information in there, maybe somebody should 5 review it. But when you tell opposing counsel we don't have 6 access to it and the account is closed and that's indeed not 7 true, it seems to me that you have forfeited your ability to 8 then stand up and say the subpoena is overbroad. 9 THE COURT: Forgive me, but what's the basis upon 10 which you say it's not true? 11 MR. PAGLIUCA: The account is not closed? 12 THE COURT: Yes. 13 MR. PAGLIUCA: Because we have been told that by 14 Microsoft when we issued them the subpoena. 15 MS. SCHULTZ: Can I address that really briefly? 16 My communications regarding these accounts are in 17 letters that are attached to the briefs in this case. I never 18 said that the Hotmail account was closed. I said that we are 19 unable to access it. 20 With regard to the Live.com account, I said it appears 21 to be closed because the website does not recognize the email 22 address. I never told them that the accounts were closed. 23 I am more than happy to sign a release to Microsoft 24 for any data that they might have to be delivered to 25 plaintiff's counsel, at which point we will be more than happy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024118 EFTA01737522  12 G6ndgium to run our search terms, review it, and produce anything that is relevant. THE COURT: That is good. 4 MS. SCHULTZ: But the subpoenas are requesting that 5 all of our data be turned over to defense counsel. 6 THE COURT: OK. Well, so what we'll do is at the 7 moment -- yes, OK, we'll quash the subpoena on Microsoft, with 8 the understanding that that's not on the merits and it can be 9 renewed, if necessary. Also, on the understanding that the 10 plaintiffs will do whatever is necessary to get access to these 11 accounts, review them, and determine -- treat it as the Apple 12 accounts have been treated. 13 OK. So that solves that problem. 14 Churcher's motion to quash. 15 MR. PAGLIUCA: Your Honor, before we move on, I have 16 one point of clarification with regard to the earlier ruling 17 about counsel conferring about scheduling going forward. 18 THE COURT: Yes. 19 MR. PAGLIUCA: I understand that to mean we should 20 confer about all of the scheduling issues moving forward. 21 THE COURT: Which you think are relevant. 22 MR. PAGLIUCA: Including up to the trial date in this 23 case? 24 THE COURT: Whatever you think -- if you have a 25 position that you think is now established that we are not able SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024119 EFTA01737523  13 G6ndgium to try the case in October, that's fine. MR. PAGLIUCA: OK. Thank you, your Honor. THE COURT: Whatever. 4 MR. PAGLIUCA: I just want to make sure I am 5 understanding the Court's order. 6 THE COURT: Yes, OK. 7 Churcher. Yes. 8 MR. FEDER: Eric Felder, from Davis Wright Tremaine, 9 for the movant. 10 THE COURT: Sure. Of course. 11 MR. FEDER: Good afternoon. My name is Eric Feder 12 from Davis Wright Tremaine, for the movant, Sharon Churcher. 13 My client, Sharon Churcher, is a journalist. She is 14 currently employed by American Media, Inc., where she is a 15 reporter for Radar Online and the National Inquirer. And prior 16 to that she worked at the British newspaper, The Mail on 17 Sunday. She's also worked as a freelance reporter. And she 18 has been subpoenaed as a third party here to give testimony and 19 to provide documents in this case. We move to quash the 20 subpoena. 21 As Ms. Churcher states in her affidavit in support of 22 the motion, her entire involvement with this case, with the 23 plaintiff, with the defendant, all of the facts underlying the 24 case was as a reporter seeking to report and publish news 25 stories. All the documents and the information described in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024120 EFTA01737524  14 G6ndgium the subpoena and the document requests, which are quite broad, by the way, and which we have to assume provide the contours of the information they are seeking in deposition, were created or 4 obtained by Ms. Churcher in the course of her news-gathering 5 activities, and much of the information sought was communicated 6 in confidence, as well. So under the New York State Shield 7 Law, which is the appropriate law and which defendants 8 acknowledge is the appropriate law, not the slightly less 9 protective Federal Reporters' privilege, the defendant has a 10 heavy burden to meet to even obtain nonconfidential 11 information, and confidential information is absolutely 12 privileged. 13 We just received an opposition to our motion which was 14 filed last night after close of business and we've been 15 reviewing it, but much of the substance of it is redacted out 16 pursuant, presumably, to the protective order. We had 17 previously offered defense counsel to sign the acknowledgment 18 of the protective order, which does provide for disclosure to 19 witnesses and witnesses' counsel. They didn't take us up on it 20 before. Obviously, the offer still stands. 21 But what we can say based on what we've seen is that 22 the defendant claims that Ms. Churcher, who they fully 23 acknowledge reported stories about this case -- not this 24 litigation but the underlying case and who first met the 25 plaintiff when she traveled to Australia to interview her in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024121 EFTA01737525  15 G6ndgium 2011, that she at some point along the way transformed from a reporter reporting news into a friend or a business adviser. It's not clear again because of the redactions when this 4 transformation presumably took place. But the reality is that 5 that is simply an incorrect characterization of the 6 relationship. 7 Since 2011, and continuing up, frankly, through the 8 present day, Ms. Churcher has continued to cover this story as 9 a reporter, has published stories, including just I think two 10 months ago, often using or her so-called agents as 11 sources, of course most prominently in early 2015, which is 12 what underlies this particular litigation. 13 By its terms, the Shield Law applies to any 14 information obtained or communications made, quote, in the 15 course of gathering or obtaining news for publication. Now, of 16 course, a reporter's source relationship is complicated. Not 17 every single interaction or every single communication is going 18 to be an interview with questions and answers that then get 19 published verbatim. So to the extent that there are particular 20 emails where Sharon provided advice to that doesn't 21 transform the overall relationship from reporter and source to 22 adviser and advisee or friend. 23 Reporters communicate with sources in a variety of 24 ways. A police beat reporter may take a sergeant out for 25 drinks and talk about life in general with no intention of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024122 EFTA01737526  16 G6ndgium publishing details but with the intention of maintaining that close source relationship so that when the sergeant comes into possession of information, he's right there as the first 4 recipient of that information. 5 As this Court stated in the Schoolcraft case, that the 6 reporter's privilege seeks to prevent the unnecessary enmeshing 7 of the press in litigation that arises from events they cover. 8 And that's exactly what this is. 9 The Second Circuit interprets the qualified privilege 10 very broadly to apply not only to individual bits of 11 information gathered from sources but also to unpublished 12 details of the news gathering process. That's from the Baker 13 .7. Goldman Sachs case, 669 F.3d 105, from 2012. 14 But either way, what they're seeking here, as 15 described in their opposition, is quintessential news gathering 16 Shield Law material. They list it at a couple of different 17 points in their brief. They are asking for Sharon Churcher's 18 interview notes, recordings, memos, and other documentation 19 that are clearly, and concededly by the defendant, from the 20 news gathering process. 21 In order to overcome this Shield Law for even the 22 nonconfidential information, they have to make a clear and 23 specific showing that the information is highly material and 24 relevant, that it's critical or necessary to the maintenance of 25 the claim or defense, and that it is not obtainable from any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024123 EFTA01737527  17 G6ndgium alternate sources. So as an initial point, it is quite clear that they haven't exhausted all other sources up to and including the proceedings here today, where they are continuing 4 to seek material from the plaintiff's email accounts, which 5 your Honor just granted an order that would facilitate that, 6 and also the pending motion to reopen plaintiff's deposition. 7 So clearly they haven't exhausted plaintiff as a source. 8 They are also asking for Ms. Churcher's communications 9 with the plaintiff's agents or attorneys or communications with 10 law enforcement about the plaintiff, but we're not aware of any 11 effort to obtain that information from those agents and 12 attorneys or from law enforcement. Obviously, law enforcement 13 may have their own objections to a subpoena. And while the 14 defendants may not like what the FBI would say here, but there 15 are certainly alternative sources that they are required under 16 the Shield Law to turn to before seeking this from a reporter. 17 In addition, the information -- again, we haven't seen 18 precisely what it is because it is blacked out of their 19 opposition but to the extent we understand it -- does not meet 20 the critical or necessary prong, which is, under the Second 21 Circuit law and under New York law, quite high. As the Second 22 Circuit articulated in J<rase v. Graco, 79 F.3d 346, the 23 information can be compelled, or disclosure can be compelled 24 when the claim or defense, quote, virtually rises or falls with 25 the admission or exclusion of the proffered evidence. And they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024124 EFTA01737528  18 G6ndgium just -- they have not made that showing here. They talk about the fact that they need this information because the credibility of the plaintiff is key, 4 but the credibility of a plaintiff is key in many kinds of 5 cases and certainly very often in libel case, where truth or 6 falsity is sort of the ultimate issue being tried, and there is 7 obviously not a wholesale exception for libel or any case where 8 the plaintiff's credibility is central to the Shield Law. 9 They also focus heavily on the idea that the story 10 changed over time from what was published in 2011 and what was 11 published in 2015 and after and, in particular, the question of 12 whether had sex with Prince Andrew or not. In 2011, 13 the article stated that there was not evidence that that 14 happened. In 2015, after court papers stated that it had 15 happened, they then reported that it had. But I would submit 16 that's less an issue of the story changing than what changed 17 was what the newspapers were comfortable publishing. 18 There is actually a Vanity Fair article about this 19 that was published later in 2011 that talks about how -- it 20 talks about Prince Andrew -- that's what the article is 21 about -- and it talks about the strictness of British libel 22 laws that likely are what contributed to newspapers sort of 23 hedging on that point. 24 This also is not a case where the journalist was an 25 eyewitness to events in her capacity as a citizen. She wasn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024125 EFTA01737529  19 G6ndgium there when whatever happened with Ms. Maxwell and took place, witnessing it as citizen Sharon Churcher. All of her knowledge about this comes from reporting as a reporter. 4 And, finally, because the documents all fall within 5 the Shield Law, a reporter should not be burdened with going 6 and sitting for a deposition where her counsel basically 7 objects to every question as privileged under the Shield Law. 8 And both the New York Court of Appeals and the Second Circuit 9 have emphasized that. The New York Court of Appeals said, in 10 Holmes v. Winter, which we cite in our brief, where the entire 11 focus of a reporter's testimony would be on privileged topics, 12 quote, No legitimate purpose would be served by requiring a 13 witness to go through the formality of appearing to testify 14 only to refuse to answer questions concerning the information 15 sought. 16 And the Second Circuit, in Gonzalez, talked about the 17 dangers that if parties to a lawsuit were free to subpoena the 18 press at will, it would become standard operating procedure, 19 and the resulting wholesale exposure of press files to 20 litigants' scrutiny would burden the press with heavy costs of 21 subpoena compliance and could otherwise impair its ability to 22 perform its duties. 23 Finally, even setting aside the Shield Law, the scope 24 of the subpoena is very broad and overly burdensome even just 25 as a third party. These communications go back at least five SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024126 EFTA01737530  20 G6ndgium years, if not more. Ms. Churcher was employed at different newspapers and is a freelancer, so we are talking about multiple email accounts. So even just gathering this broad 4 scope of communications which aren't limited by time or 5 specific subject matter would be quite burdensome, but, again, 6 because the Shield Law applies, a fortiori, as a journalist, 7 she should not be put to that burden. 8 THE COURT: Thank you. 9 MR. PAGLIUCA: Your Honor, I start with -- I would 10 like to read to the Court an example of Ms. Churcher's 11 involvement in this case. I have this as an audio file and if 12 I was allowed to bring my cell phone in, I would play it, but I 13 wrote it down to read it to the Court. 14 MS. McCAWLEY: Excuse me, your Honor. I just want to 15 make sure that we are not -- some documents have been labeled 16 confidential, which is why there are redactions and I believe 17 there are other individuals present in the courtroom -- 18 THE COURT: Yes. Find out what it is. 19 MS. McCAWLEY: Thank you. 20 THE COURT: No. Confer with counsel. 21 MR. PAGLIUCA: This is not a document that has been 22 produced by the plaintiffs, and it has never been labeled as 23 confidential in connection with this case. 24 MS. McCAWLEY: Sorry. I was concerned about that. 25 MR. PAGLIUCA: So, this is a voice message that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024127 EFTA01737531  21 G6ndgium Ms. Churcher left for Paul Cassell, who is a lawyer in this case who entered an appearance in this case, in February of 2015. 4 On February 5, 2015, your Honor, it starts out: Paul, 5 it's Sharon. I wanted to discuss and with you on a deep 6 background basis something that's in my file. I, as you know, 7 feel almost like a friend of I think that the FBI 8 affidavit was pretty close to perjury. Give me a call when you 9 get a chance. On a deep background basis, if it's not going to 10 be a conflict for you, it's something that I wanted to get your 11 advice on. Take care. Bye-bye. 12 This voice message is troubling on a number of levels, 13 your Honor, in connection with this case. First, it has never 14 been provided to us, and there is a lawyer who has entered an 15 appearance in this case. We have asked for this kind of 16 discovery from the plaintiff and it has never been provided, 17 and it's germane to the issues before the Court. But what it 18 reveals is that this is not Ms. Churcher's first interaction 19 with Mr. Cassell, lawyer for the plaintiff. They are on a 20 first-name basis. She is feeling free to call him and leave 21 messages for him. 22 And what she wants to discuss is apparently an 23 affidavit prepared by the FBI that's been provided to 24 Ms. Churcher by someone; I don't know whom, your Honor, but I'm 25 going to presume it was provided to Ms. Churcher by the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024128 EFTA01737532  22 G6ndgium plaintiff. That's troubling as well because we went through litigation in this case about our access to alleged public-interest privileged documents that were not turned over 4 to us but were submitted in camera to the Court. But to the 5 extent that that's part of those documents and Ms. Churcher has 6 it, that's a problem for the discovery process in this case. 7 And it's a problem for Ms. Churcher, your Honor, 8 because it's clear, as is attached to our papers, that 9 Ms. Churcher's role in this entire ordeal was not simply a 10 journalist. Ms. Churcher is a self-described friend. She is a 11 self-described adviser. She's a self-described confidante. 12 She is a self-described advocate. In many instances throughout 13 this ordeal, Ms. Churcher was acting as a source of information 14 to Mr. Edwards, who is another lawyer who has entered an 15 appearance in this case, and to law enforcement. 16 The Shield Law only applies when journalists are asked 17 to disclose information received in the course of gathering or 18 obtaining news for publication. And Ms. Churcher's activities 19 in connection with this case are far outside of those bounds. 20 To be clear, we don't want that information from Ms. Churcher. 21 So whatever information Ms. Churcher has that was indeed 22 obtained in her job in the course of gathering or obtaining 23 news for publication, we haven't subpoenaed that information. 24 But I suggest, your Honor, that the blanket notion 25 that Ms. Churcher can't sit for a deposition in this case is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024129 EFTA01737533  23 G6ndgium simply wrong, and these issues need to be resolved on a question-and-answer basis by Ms. Churcher, because her role in connection with this case far exceeded any role as a 4 journalist. 5 Indeed, your Honor, Ms. Churcher is a fact witness in 6 this case. The Shield Law relied on is only applicable when 7 the journalist is asked to disclose information, again, 8 received in the course of gathering or obtaining news for 9 publication. And much of the information that we are asking 10 if, indeed, it is not all -- from Ms. Churcher has nothing to 11 do with information she gathered or collected in the course of 12 gathering news for publication. 13 We have Ms. Churcher meeting with the plaintiff in 14 early 2011 and then conducting a week-long series of interviews 15 leading to the publications in March of 2011. We then go 16 through another five years here where the story changes, and it 17 is reasonable, I believe, to believe that the story is changing 18 not because of the truth of the story but because of 19 information that's being given to the plaintiff and she is then 20 changing her story to make it more salacious and more sellable 21 to various people through the world. 22 There is a series of exchanges between the plaintiff 23 and Ms. Churcher that we have in email communications that have 24 been provided to the Court that demonstrate this course of 25 conduct over time. We also have a series of communications SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024130 EFTA01737534  24 G6ndgium between the plaintiff and law enforcement and the plaintiff's lawyers that are not news-gathering activities. These are wholly outside of the process of gathering news. And they are 4 sharing information back and forth, and Ms. Churcher is 5 providing information to Mr. Edwards, counsel in this case. 6 Ms. Churcher is advising the plaintiff on how to deal with her 7 own lawyer in connection with maximizing her return on 8 publishing details that appear to be provided to the plaintiff 9 by Ms. Churcher. All of this is outside the bounds of any 10 Shield Law or any privilege. 11 I think the Court knows I'm sure the Court is 12 exhausted with all of the pleadings that have been filed in 13 this case related to discovery. I believe we have exhausted 14 all avenues available to us to obtain this information. There 15 is really no place else to go. And so there is -- I think it 16 is not well founded, your Honor, that there is some notion that 17 we have not done everything that we can to get this information 18 from the plaintiff, Microsoft, other places before turning to a 19 subpoena to Ms. Churcher. 20 Ms. Churcher is likely the only source of this highly 21 relevant information, which is this 24-page fabricated diary 22 and the testimony around that, communications with law 23 enforcement and the FBI that have no legitimate investigative 24 reporter purpose. 25 So, for those reasons, Judge, I believe the Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024131 EFTA01737535  25 G6ndgium should deny the motion to quash, we should be allowed to proceed forward with the deposition of Ms. Churcher. If there are particularized objections to the questions because counsel 4 believe that those invade some privilege, they should be raised 5 at that time, and we go forward on a question-by-question basis 6 because most of this information will not be subject to any 7 privilege. 8 Thank you. 9 MR. FEDER: May I be heard briefly? 10 THE COURT: Mm-hmm. 11 MR. FEDER: Thank you. Just very briefly. 12 First of all, the voicemail that my colleague read is 13 totally consistent with news gathering. She mentions that it's 14 on deep background, and in trying to cultivate the source she 15 describes herself as almost a friend. Again, I don't think 16 that type of less formal communication is indicative of a 17 transformation from a journalist into something else. 18 But more problematically, we haven't heard that 19 voicemail. We haven't seen any of the emails they are talking 20 about because they are redacted; the exhibits containing them 21 were filed under seal. So we don't know exactly which pieces 22 of information they are trying to seek and which pieces of 23 information they are claiming are not subject to the privilege. 24 I think we can all agree that Ms. Churcher is in fact 25 a journalist, that she did in fact publish stories from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024132 EFTA01737536  26 G6ndgium actually going back to 2007 that wasn't named, but from 2007 and certainly 2011 onward, publishing stories about these matters. So, clearly the Shield Law is floating around 4 here at a minimum somewhere. 5 And they have to make a clear and specific showing for 6 each piece of information that they claim either the Shield Law 7 doesn't apply because she wasn't acting in her capacity as a 8 journalist or that the Shield Law is overcome because it's 9 critical or necessary and they've exhausted alternative 10 sources. And the Shield Law itself provides that the Court 11 shall order disclosure only of such portions of the news sought 12 as to which the above-described showing has been made and shall 13 support such order with clear and specific findings made after 14 a hearing. 15 So we can't go forward and just deny the motion to 16 quash entirely and just go to a deposition and start answering 17 questions when the Shield Law at a minimum applies to, we would 18 submit, all of it but at a minimum a substantial portion of the 19 information. We need to see what they're specifically talking 20 about here. 21 THE COURT: Thank you very much. I will reserve 22 decision. 23 The motion to quash the Epstein -- 24 MR. POE: May I approach the podium, your Honor? 25 THE COURT: Yes. Of course. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA_R1_00024133 EFTA01737537  27 G6ndgium MR. POE: Good afternoon, your Honor. Gregory Poe on behalf of non-party Jeffrey Epstein. With me, your Honor, is my colleague Rachel Li Wai Suen. 4 THE COURT: Yes. 5