gov.uscourts.nysd.447706.831.0_2.pdf

Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 1 of 59 1 H3NSGIUC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 Civ. 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. 8 ------------------------------x New York, N.Y. 9 March 23, 2017 12:10 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff Giuffre BY: SIGRID S. MCCAWLEY 16 J. STANLEY POTINGER PLLC 17 Attorneys for Plaintiff Guiffre BY: J. STANELY POTTINGER 18 S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH 19 Attorneys for Plaintiff Guiffre BY: PAUL G. CASSELL 20 HADDON, MORGAN and FOREMAN, P.C. 21 Attorneys for Defendant Maxwell BY: LAURA A. MENNINGER 22 JEFFREY S. PAGLUICA 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 2 of 59 2 H3NSGIUC 1 (Case called) 2 THE COURT: There a couple of things that I would like 3 to raise at this point, and then we'll get to the affairs of 4 the day. I was reading the pretrial order, and it's ham and 5 eggs without the ham, in other words, and you recognize that 6 because you said that you would provide a list of the exhibits 7 on February 21. If you did, I don't think you did is my guess, 8 but you must. Somewhere along the line we have got to get this 9 exhibit list in shape. 10 What's your thought with respect to that? 11 MS. MCCAWLEY: Your Honor, I don't have the pretrial 12 order that we submitted in front of us. My recollection is we 13 did put in a date for the exchange of exhibits internally and 14 then submission to the court. I believe it was in early April, 15 but I could be wrong about that. I'm sorry, I don't have it in 16 front of me right now. I know we did put in a date certain in 17 the joint pretrial statement that we submitted to your Honor. 18 THE COURT: You did. It said February 21. 19 MS. MCCAWLEY: I'm sorry. That was the first -- no, 20 you're correct, your Honor. That was our first order, and we 21 submitted a revised joint pretrial stipulation a couple weeks 22 ago, I believe it was. 23 THE COURT: Oh, I missed that. All right. What does 24 that provide? 25 MS. MCCAWLEY: It provides that we are going to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 3 of 59 3 H3NSGIUC 1 exchanging them to put forth the objections, and I think we 2 submitted it, I want to say, in early April. I don't have the 3 date in front of me. I'm sorry. 4 THE COURT: That solves that problem. I have the 5 joint interest agreement. It's been submitted. It occurs to 6 me that it is relevant. If anybody thinks it is not relevant, 7 give me some authority to exclude it. 8 Is that agreeable? 9 MR. PAGLIUCA: Well, your Honor -- this is Jeff 10 Pagliuca on behalf of Ms. Maxwell -- I am not understanding 11 precisely the court's question, but I think if the court is 12 talking about it being introduced into evidence in the trial or 13 for some other purpose? 14 THE COURT: Well, obviously that is the purpose, 15 right? 16 MR. PAGLIUCA: I believe there is authority that they 17 shouldn't be admitted at trial. 18 THE COURT: All right. You will recall that it was a 19 demand, a request for production, and I said submit it in 20 camera to see if it is relevant. It was just submitted just 21 recently, parenthetically, two days ago, that is why I raised 22 it before. It has been submitted. 23 I'm sure that the plaintiff believes that it's 24 relevant, obviously, or they wouldn't have asked for it in the 25 first place. If you want to suppress it for some reason, but I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 4 of 59 4 H3NSGIUC 1 think I said a moment ago, it seems to me that it is relevant. 2 It should be produced unless you want to raise that issue. OK? 3 I am told we have 45 motions on next week. Would you 4 believe that? 45. You people are nuts, but never mind. 5 Never mind. I shouldn't have said that. I withdraw. You're 6 not nuts. You're very diligent. Maybe overly diligent. 7 Well, anyhow, whatever you are, I'm going to break 8 that up, I think. Plan to stay for another day next week. I 9 think also today, it probably makes sense, I will be taking the 10 discussion about the experts on submission. But if you would 11 like to be heard, I can do that, or if you think it would be 12 useful to be heard, let's do that tomorrow at noon. The others 13 we'll cope with today. 14 MR. PAGLIUCA: Your Honor, you said tomorrow? 15 THE COURT: Yes, tomorrow. 16 MR. PAGLIUCA: We are not available tomorrow. I have 17 matters pending in Colorado that I have to be back for. 18 THE COURT: Don't give me this Colorado stuff. You're 19 going to be here for the better part of April and May, I 20 understand. 21 MR. PAGLIUCA: I'm happy to be here, your Honor. 22 THE COURT: Oh, I'm sure. 23 MR. PAGLIUCA: I have two children that live here. It 24 is not a bad gig for me to come back. 25 THE COURT: Understood. I'll take them on submission. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 5 of 59 5 H3NSGIUC 1 There is one thing I wanted to ask about the experts. 2 I want to be sure that I understand, what is the plaintiff's 3 damage claim? I think I know, but tell me. 4 MS. MCCAWLEY: Right. So the damage claim, we're not 5 asserting special damages. I know that was raised in the 6 context of these motions. Our damage claim is the claim for 7 loss of standing in the community, it's the defamation, per se, 8 claim that we have made in our filings. 9 Within that, we have proposed two experts that talk 10 about the dissemination generally of the defamatory statement, 11 and those are experts that they have moved to exclude all of 12 our experts. Those two also they have moved to exclude. One 13 of them is Mr. Anderson, and he is the one who is basically 14 what you call an electronic reputation manager. 15 THE COURT: Yes. 16 MS. MCCAWLEY: The other one is Dr. Jansen. 17 Dr. Jansen is the one who does web analytics. He testified in 18 the Erin Andrews case. He follows the dissemination on the 19 Internet to show where the quoted statement -- 20 THE COURT: Yes, but there is no claim for emotional 21 damage? 22 MS. MCCAWLEY: Yes, that is within that claim. So the 23 actual language of it, which is set forth in our Rule 26 24 disclosures, goes to the emotional, it's emotional distress, 25 loss of standing in the community, reputation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 6 of 59 6 H3NSGIUC 1 THE COURT: Well, she is going to testify obviously. 2 Is there going to be an expert on the emotional damage? 3 MS. MCCAWLEY: Yes, your Honor. Dr. Kliman is our 4 expert. 5 THE COURT: That's what I thought. 6 MS. MCCAWLEY: Yes. 7 THE COURT: That's fine. Thanks. 8 MS. MENNINGER: Your Honor, if I may respond to that, 9 please? 10 THE COURT: Sure. 11 MS. MENNINGER: Plaintiff has just said that they're 12 not asking for special damages, except the claim to clean up 13 her reputation on the Internet has been found by people like 14 Professor Sachs to be a special damage, and they did not plead 15 that special damage under Rule 90 and they did not disclose 16 that. 17 THE COURT: I take it that that is covered in your 18 papers? 19 MS. MENNINGER: It is, your Honor. I just wanted to 20 clarify the statement on the record here regarding that. 21 THE COURT: How do you all want to proceed? 22 MS. MCCAWLEY: Well, your Honor -- 23 THE COURT: Here is a question. We have a question 24 about a witness and that raises the protective order. 25 MS. MCCAWLEY: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 7 of 59 7 H3NSGIUC 1 THE COURT: My suggestion is that you be careful in 2 whatever you say and maintain the protective order. If I don't 3 understand what you're telling me, I'll say so. 4 MS. MCCAWLEY: Sure, your Honor. I think you're 5 referring to the nonparty motions that are pending? 6 THE COURT: Yes. 7 MS. MCCAWLEY: As I see it, just so I'm clear, so 8 we're all on the same page, the expert motions that were their 9 motions and the two that were ours are going to be taken under 10 submission. Then if I'm correct, what remains would be -- 11 there's a defendant's motion in toto, there is plaintiff's 12 motion regarding the phrase testimony in another case, the 13 Dershowitz motion was resolved, he is going to be appearing 14 live, they explain that in their opposition, that one is moot, 15 and then the nonparty motion. 16 THE COURT: Yes. Why don't we do the nonparty 17 business first, because then that will save attorney time. 18 MS. MENNINGER: Your Honor, the nonparty motions are 19 twofold. On the one hand, plaintiff has filed a motion for a 20 protective order asking that there be no more discovery, and at 21 the same time, we had moved to compel her to provide discovery. 22 I am the movant in terms of the motion to compel, the 23 respondent in terms of the protective order, but I really think 24 the two issues are one. 25 As you may recall, because we were just here on this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 8 of 59 8 H3NSGIUC 1 particular witness about a month and a half ago, your Honor, 2 this was a witness that was "late disclosed." Plaintiff said 3 they had only recently learned about her. It turns out that 4 they had learned about her several months before they told the 5 court they recently learned of her. But in any event, in order 6 to cure the late disclosure, they offered to reopen discovery 7 to allow her to be deposed and also accept service of the 8 subpoena. 9 We are here today to talk about her refusal to answer 10 certain questions during her deposition that occurred on 11 February 17, and we are here to talk about her refusal to 12 provide certain documents pursuant to the subpoena, both of 13 which were, if you will, matters that were proposed by 14 plaintiff to cure the late disclosure so that they could 15 present her testimony at trial. 16 In the first place, we served this witness with -- I 17 don't know if we are supposed to use her name or not based on 18 the last time we were here, I'll just call her the witness -- 19 we served the witness with a subpoena accepted by counsel for 20 plaintiff, and approximately 18 pages of documents were 21 produced and some photographs. The photographs apparently were 22 given to her by another person. Then a copy of her expired 23 passport. That was, as you might imagine, not the only 24 documents that were requested from her. 25 Part of the problem here, your Honor, is that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 9 of 59 9 H3NSGIUC 1 witness is not only a witness in the trial -- 2 THE COURT: I know. I know what she is. 3 MS. MENNINGER: -- she also has -- 4 THE COURT: I know. Let me just say flat out, I am 5 not going to get involved in that other case. 6 MS. MENNINGER: I totally understand, your Honor. The 7 only issue that I was raising in this regard is that she has 8 the same lawyers in this case who are also plaintiff's lawyers. 9 So there are, I think, seven or so lawyers representing her. 10 She said she was unable to produce a privilege log for any of 11 her privileged materials that she asserted in her responses to 12 requests one, three, and five. 13 THE COURT: That was only related with respect to 14 Dershowitz, right? 15 MS. MENNINGER: That was at her deposition, your 16 Honor. That is not the only privilege she asserted in 17 responding to subpoena requests. In her subpoena requests, 18 there were four specific requests. She asserted privilege and 19 she did not produce a privilege log. Those are items number 20 one, two, three and five. She raised privilege, she didn't say 21 whether she actually had any privileged materials, and then she 22 did not provide a privilege log. 23 You are correct, your Honor, with respect to the 24 assertion of privilege during the deposition. She asserted 25 that her conversations with Mr. Dershowitz were privileged, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 10 of 59 10 H3NSGIUC 1 they occurred in front of a third party, in particular 2 Mr. Epstein, who she said was there for her "moral support" and 3 he was not part of her litigation team. 4 So, in our opinion, having a conversation with a 5 lawyer -- by the way, that lawyer denies he is her lawyer -- in 6 any event, she said she had a conversation with him in the 7 presence of a third party, and so there is no privilege, your 8 Honor. That is just black-letter law on privilege. There was 9 no basis for asserting that privilege during the deposition, 10 and we would ask her to be deposed and answer the questions 11 related to that conversation. 12 Your Honor, with respect back to the subpoena 13 responses one, two, three and five, she asserted a privilege 14 and she did not produce a privilege log. Again, black-letter 15 law, you waive your privilege when you don't do a log. She 16 said only that it would be burdensome and that witness 17 interviews are subject to work protection. So, again, your 18 Honor, this relates to the question of which lawyers are 19 representing her at what time and when. They claim that all 20 conversations that they have had with her are privileged work 21 product, but they have not produced a log regarding those work 22 product protection materials that they claim. 23 Regarding burdensomeness, your Honor, they made no 24 argument other than saying it was burdensome. They didn't say 25 how many documents there were. They only knew her two or three SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 11 of 59 11 H3NSGIUC 1 months. I don't know how burdensome -- 2 THE COURT: These are conversations with the 3 plaintiff's counsel in this case? 4 MS. MENNINGER: That's right, your Honor. That's what 5 I am trying to explain, your Honor. 6 Sitting at counsel table right now in front of you are 7 three lawyers from three separate firms. Each of these three 8 lawyers represent both the witness and represent plaintiff. 9 THE COURT: Well, Giuffre's lawyers do not represent 10 the witness here. 11 MS. MENNINGER: Yes, they do, your Honor. 12 THE COURT: Oh, do they? 13 MS. MENNINGER: At her deposition, they were 14 instructing her to answer and instructing her not to answer, 15 participating in all of the conversations with her lawyers out 16 in the hallway when they would confer during the pendency of 17 questions. 18 THE COURT: I mean, I don't think that makes them her 19 lawyer in this case, but I guess, yeah, isn't it pretty clear 20 that Giuffre -- well, I see your point. 21 MS. MENNINGER: Your Honor, I think in order to 22 understand whether any of these materials are or are not 23 privileged, one needs to know who her lawyers are, for what 24 purpose, when and see a privilege log so that you can test it. 25 That wasn't produced at all. No effort was made. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 12 of 59 12 H3NSGIUC 1 Three more weeks have gone by. Still none has been 2 produced. She has four law firms and seven attorneys. I don't 3 understand the burdensomeness argument, your Honor, not one 4 bit, and I think they have waived the privilege on it by not 5 producing a privilege log. 6 With respect to our request for her communications 7 with witnesses in this case, those were requests one, four, 8 five, and 14, and variance iterations. She produced, as I 9 said, 18 pages of e-mails that she got off of her Yahoo inbox, 10 but she testified -- and I quoted in the papers -- that she 11 only searched her inbox. She produced screenshots of the 12 e-mails which reveal other e-mails that were not produced that 13 were responsive. So certain ones, they would take a screenshot 14 of a part of an e-mail. Another one would be hidden in the 15 screenshot and another one would be disclosed. So there are 16 obviously e-mails that are responsive to our requests that were 17 not produced. 18 THE COURT: These are e-mails with -- 19 MS. MENNINGER: Witnesses in this case, your Honor. 20 THE COURT: In this case? 21 MS. MENNINGER: In this case, yes, your Honor. 22 Another issue, your Honor, is that this witness claims 23 that she came forward after communicating with a journalist. 24 She said she e-mailed that journalist several times. She 25 testified to the e-mails with the journalist about the subject SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 13 of 59 13 H3NSGIUC 1 matter of her testimony in this case and she has this e-mail 2 exchange still within her Yahoo account. Those e-mails were 3 not produced either, your Honor. 4 There was another witness -- I mentioned it in the 5 paper, I'll be oblique in my references to it now -- to whom 6 she discussed the subject matter of her testimony in this case, 7 but only produced selected e-mails with that individual because 8 they have been marked confidential. I won't say the name, but 9 it is on page four of my motion, your Honor. 10 My second request, request number two, related to her 11 fee agreements. One fee agreement was produced for four of her 12 lawyers, but not the other fee agreement for the remaining 13 three that have entered their appearance on her case. Again, 14 your Honor, I think the fee agreement is relevant. I'm sorry. 15 There is two other lawyers she did not produce her agreements 16 with. One is the lawyer who appeared with her at her 17 deposition. She produced no fee agreement with that particular 18 attorney. Then secondly, she did not produce her fee agreement 19 with the Boies, Schiller firm who has entered their appearance 20 on her behalf. 21 THE COURT: Have they? 22 MS. MENNINGER: They entered in another matter, your 23 Honor. 24 THE COURT: Well, that's what I thought. 25 MS. MENNINGER: Your Honor, requests six and seven SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 14 of 59 14 H3NSGIUC 1 relate to some photographs. There were photographs produced. 2 They were represented to the court to have been photographs 3 that the witness took, but it turns out after her deposition 4 that they were not taken by her, they were given to her on a 5 disk. We asked for an actual copy of the disk, and you can see 6 some of the screenshots from that disk in my pleading. But 7 also attached to my declaration reply, Exhibit J, the full 8 screenshot of the contents reveals that approximately 9 50 photographs were deleted before they were provided to us. 10 There are just jumps in the numbering. And these 11 photographs, the witness testified, were relevant to her 12 testimony in this case, so I would ask that the complete set of 13 photographs be produced and no reason for not producing them 14 has been provided by counsel for the witness, who is also 15 counsel for the plaintiff. 16 Requests nine through 12, your Honor, there were some 17 passports and visa documents. This woman made claims that she 18 came to this country for the purposes of education, and so we 19 asked for her visas where she was seeking the ability to study 20 in this country. None of those were produced. We asked for 21 her passports that reflected her travel to and from the 22 country, because the dates of her travel are relevant to her 23 claims here and certainly to our 404(b) motion, your Honor. 24 She testified that she had two passports. She only produced a 25 copy of one. We would ask that her other passport be produced, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 15 of 59 15 H3NSGIUC 1 her other expired passport be produced, and both of her current 2 passports. 3 THE COURT: Why the current one? 4 MS. MENNINGER: Your Honor, there were certain claims 5 made about when she had traveled to this country and whether 6 she had been here. She made a claim -- I don't know how to say 7 it without getting into the subject matter of some of her 8 testimony -- but she made allegations that she had and had not 9 traveled on certain dates up to and including today. 10 THE COURT: Oh, I see. 11 MS. MENNINGER: That is why it would be relevant. 12 Your Honor, request 15 and 16 of the subpoena, there 13 were allegations made by this witness that she was provided 14 things of value. We asked for records that would reflect 15 whether or not that allegation is true. We were told that no 16 such records would be produced based on privacy concerns. As 17 your Honor has suggested, any privacy concerns can be 18 alleviated based on the protective order already entered in 19 this case. We are happy to abide by it and have been abiding 20 by it. 21 With respect to request 18, her driver's license, your 22 Honor, that provides some background information that can be 23 useful in investigation of an individual's criminal history and 24 the like. We, again, are happy to have that subject to the 25 protective order. Frankly, the response was that it would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 16 of 59 16 H3NSGIUC 1 provided at her deposition, but it was not. 2 Request 19 and 20 related to her education records. 3 Her education records, your Honor, her claim that she was a 4 victim relates to claims related to education. I don't know 5 how else to see it, your Honor, if you know what I'm saying. 6 THE COURT: I do. 7 MS. MENNINGER: One of the issues would be whether or 8 not that truly was -- whether that claim is true. Part of 9 whether or not that claim is true depends upon her 10 qualifications and her other educational background. She 11 testified about some of this, but she didn't produce any of her 12 records related to it. 13 One record in particular, her application for that 14 particular institution was not provided. An essay was 15 provided, but not the application, which, by the way, she 16 testified she had on her computer. 17 Requests 21 and 22 relate to her contracts. 18 THE COURT: Yes. 19 MS. MENNINGER: Request 30 is social media. 20 Your Honor, those are the subpoena issues. 21 THE COURT: But how is it relevant here? 22 MS. MENNINGER: Which one? 23 THE COURT: The modeling. 24 MS. MENNINGER: Your Honor, she testified that while 25 she was here in this country about a decade ago, she was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 17 of 59 17 H3NSGIUC 1 performing modeling services. At the same time, she says she 2 was just here to further her education. So if she has 3 contracts from that time period -- and I am happy to limit it 4 to that time period, your Honor -- then it would not be 5 credible that she was only here for purposes of furthering her 6 education. 7 THE COURT: OK. 8 MS. MENNINGER: If I may turn to the deposition 9 question issues, your Honor. Those also are outlined in our 10 papers. There are some witnesses, based on claims that she has 11 made, we asked for their identifying information, including 12 their names and, if known, addresses, in particular, her 13 partner's phone number. She was directed by her counsel not to 14 answer the phone number. There was no privilege asserted. 15 We asked for her financial information in our opening 16 papers. We explained the relevance of that financial 17 information. There was no response to that relevance argument, 18 your Honor, so I would deem it admitted by the other side. We 19 have already discussed category three, the allegedly privileged 20 communications with Mr. Dershowitz. 21 Finally, your Honor, on page 11 of our reply, there 22 were six categories of questions that we asked during the 23 deposition. She was instructed not to answer. And when her 24 lawyer, who is plaintiff's lawyer, moved for a protective 25 order, they didn't move to cover any of these. Your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 18 of 59 18 H3NSGIUC 1 again, I would argue that those have been deemed admitted. The 2 relevance for each one of them is, again, asserted after the 3 categories on page 11 of our reply. 4 I think saying any more would get us in some water. 5 Thank you, your Honor. 6 THE COURT: Yes. 7 MR. POTTINGER: Good afternoon, your Honor. Stan 8 Pottinger here for a nonparty witness. If I slip and use her 9 name, I believe your Honor's redaction order of two weeks ago 10 probably covers this. If I'm wrong about that, I'll be happy 11 to stand corrected. I do believe, I'm guessing, that there may 12 be press in the courtroom today. 13 Your Honor, a moment of context. What we are talking 14 about here is a nonparty witness, not a party, being attacked, 15 if you will, by a party, the defendant, who has produced less 16 information than this nonparty witness has produced to date. 17 This is true both for photographs, e-mails and relevant 18 documents. I mean, at some point, enough is enough, your 19 Honor. 20 With regard to what has been produced in response to 21 the subpoena, the nonparty witness has produced documents in 22 response to -- 23 THE COURT: Let's get to the ones that are contested, 24 the communication with witnesses. 25 MR. POTTINGER: All right. Your Honor, with regard to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 19 of 59 19 H3NSGIUC 1 request number 12, she has testified that she does not have 2 credit cards or receipts. 3 THE COURT: Well, look, if she doesn't have something, 4 then all we need is that statement. 5 MR. POTTINGER: Fine. That takes care of many of the 6 burdensome requests that have been made here. They are 7 burdensome and irrelevant. 8 With regard to the four items in specific that are 9 being raised, passport, driver's license -- 10 THE COURT: How about the communications with 11 witnesses? 12 MR. POTTINGER: Are you speaking now of the matter 13 involving Dershowitz and -- 14 THE COURT: Well, I am looking at your opponent's 15 papers. That was the request one, four, five and 14. They say 16 no forensic search, no search. 17 MR. POTTINGER: Your Honor, she has testified that she 18 searched her computer. I'm not sure what kind -- 19 THE COURT: Counsel just said -- 20 MR. POTTINGER: A forensic search meaning more than 21 her searching. She is a nonparty witness who resides in Spain. 22 We are supposed to send an IT expert to Spain? I'm not sure 23 what this involves. I mean, she has gone through her computer, 24 she has gone through -- 25 Your Honor, may I hand up, if I may, a bench book for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 20 of 59 20 H3NSGIUC 1 your consideration for a moment to get some idea what has been 2 produced here? This will give you some idea. 3 THE COURT: Wait just a second. Has she identified 4 her e-mail accounts? 5 MR. POTTINGER: Yes. 6 THE COURT: She has stated that she has searched 7 those? 8 MR. POTTINGER: That's correct. 9 THE COURT: Has counsel searched those? 10 MR. POTTINGER: I have not searched those. I can't 11 speak for other possible counsel, but I believe that there have 12 been efforts to ascertain that her searches have been accurate. 13 Certainly she has told us what she has done. She has testified 14 under oath that she searched every single e-mail and that she 15 has produced every single e-mail there was and is responsive to 16 the subpoena. 17 THE COURT: Does that include this reporter business? 18 MR. POTTINGER: No. There may be some e-mails that 19 existed between her and the reporter before we met her or knew 20 her. Our view is that those reporter e-mails happened a matter 21 of a few months ago, have nothing to do with 10, 11 years ago 22 when the events of this trial are put to the test. They have 23 nothing to do with that. 24 I mean, should she produce every e-mail she's ever had 25 on this subject for the last 10 years? I don't understand the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 21 of 59 21 H3NSGIUC 1 level of that burden in light of the prevailing case law, 2 including your own, your Honor, doesn't seem to require a 3 nonparty witness to go through those burdensome and harassment 4 lengths. 5 THE COURT: But those statements have nothing to do 6 with this case. 7 MR. POTTINGER: Well, not in our view. They have to 8 do with, as I understand them, they have to do with her desire 9 to be recognized as someone who was an important witness. This 10 happened before we even heard of her. I have to remind your 11 Honor, this is someone who should have been produced by the 12 defendant as a Rule 26 witness and was never mentioned. 13 Unless the defendant, Ghislaine Maxwell, is prepared 14 to say that she literally forgot about someone with whom she's 15 been photographed and exchanged information and was trafficked 16 by her, and she actually forgot about her, we don't understand 17 why this is coming up at this late date. This should have been 18 produced many, many months ago, but it was not. 19 Look, we heard about her. She came forward. She 20 heard about the case. She summoned her courage and came 21 forward. Our response in terms of having heard about this in 22 November is not to go ahead and produce her in any respect 23 until we ourselves did the due diligence, which we might add 24 defendants have requested in very severe terms that they be 25 done, including Mr. Dershowitz himself, who is always saying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 22 of 59 22 H3NSGIUC 1 what happens to lawyers when they don't do careful due 2 diligence. Well, we did the careful due diligence. 3 We did ascertain that she was speaking with 4 credibility, and then we produced her very quickly. This 5 happened, by the way, over the holiday season at the end of 6 December. So from November to December, we did our job. We 7 then went to Spain. We did the interviews with her. We 8 concluded that she was credible and we produced her. 9 Now we're up against things like a passport, a 10 passport now, a passport that she is using today as opposed to 11 10 years ago. We produced her passport from 10 years ago. 12 They have that. They have that in completion. We haven't 13 produced her passport that she uses today. What's the 14 relevance of that? 15 We have not produced her driver's license today. She 16 is fearful of what that may lead to. We have not produced 17 financial statements only because she says she doesn't have 18 them, not because we have them and we are sitting on them. 19 Modeling contracts? She doesn't have them. She 20 herself has said, I was not a top flight model, for a number of 21 reasons that she candidly explains. She doesn't have those. 22 She testified to that in 10 hours, your Honor; 10 hours of 23 sitting in a deposition. She came to this country from Spain 24 and sat for 10 hours, testified truthfully to each of these 25 questions, and yet we're now facing questions we want more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 23 of 59 23 H3NSGIUC 1 deposition, we want more documents, we want things like 2 paycheck records. She testified she doesn't have them. 3 We want her boyfriend's cell phone number. Why do 4 they want her boyfriend's cell phone number? She is very 5 nervous about that. So is her family. They want her parents' 6 current address information. 7 We covered the Dershowitz business. They want her 8 partner's occupation. They want to know what hotel she stayed 9 in four weeks ago, six weeks ago, when she was here in New York 10 to testify. They want to know what hotel. What hotel did you 11 stay in? 12 They want to know her stepmother's telephone number, 13 e-mail address, her physical address. That makes her and her 14 family extremely nervous. 15 They want to know when she provided her photographs to 16 her lawyers. I think it is a privileged matter, but, I mean, 17 these are the subjects that they want to go into and have her, 18 at her expense and the difficulty involved, fly from Spain back 19 to New York to answer those questions. I mean, at what 20 point -- look, I grant you, we are now representing her. If we 21 didn't represent her, where would she be? She is in Spain. If 22 they want to go to Spain with letters interrogatory, fine. We 23 are not trying to do that. 24 We acknowledge we represent her, and we are trying to 25 be as cooperative and fulsome and productive as we can be. At SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 24 of 59 24 H3NSGIUC 1 some point, enough is enough. I understand why they are 2 worried about this witness. It makes sense. I would be in 3 their shoes as well. 4 At some point, we have got to draw lines here. This 5 is someone who has come forward at great both personal and 6 other expense. I mean, 10 hours, 10 hours of sitting here 7 doing this, at some point, why are these additional points 8 raised other than to harass her? 9 Your Honor, I might add one other thing. One of the 10 things that they have been honest about, we appreciate the 11 honesty of defense counsel in saying that they do want to use 12 this proceeding in order to find out information in another 13 lawsuit. That's a problem for us. We cite your Honor's 14 Mademoiselle case as a reference point on that particular 15 point. 16 THE COURT: Thank you. 17 MS. MENNINGER: Your Honor, I would like to ask 18 counsel where any representation has been made by myself or my 19 co-counsel that we intend to use any of this in another matter. 20 That is not true. 21 Also not true, this witness did not sit for 10 hours 22 of deposition. It was just repeated three times. She sat for 23 six and a half hours of a deposition. Her lawyers took so many 24 breaks, that it took up 10 hours. I didn't leave the room. I 25 ate at the table. They took three and a half hours and then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 25 of 59 25 H3NSGIUC 1 brought a salad back and ate it during the deposition. 2 Another misrepresentation on the record just now made 3 by Mr. Pottinger, they want to stand here in open court and 4 say, We don't want to use her name. Then they say things that 5 are not true, like this woman was photographed with my client. 6 Not true. Look through the documents you were just handed in a 7 book. Find a photograph of the two of them together. You 8 won't. It doesn't exist. 9 He just stated to you on the record in open court that 10 this witness communicated with my client. Look through that 11 book. There is not a single communication between her and my 12 client. Not true. Stated in open court. 13 Your Honor, I'm sorry, but I am offended when 14 misrepresentations are made to the court, especially when 15 they're done under the guise of I want some protection, I am 16 just going to say things and you can't respond to them. 17 Your Honor, related to this discussion about the 18 reporter, the witness testified that she tried to sell her 19 story about my client to a New York Post reporter. She did 20 that after she read the New York Post reporter's claim that 21 Mr. Epstein often settles lawsuits out of court. She has 22 testified that she read that statement and decided to approach 23 the reporter to try to sell her story. She did that just a 24 couple weeks before she called plaintiff's counsel. That 25 New York Post reporter refused, apparently, to publish her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 26 of 59 26 H3NSGIUC 1 story, and the fact that she refused to publish her story was 2 what then led her to just voluntarily, after 10 years, give a 3 call to plaintiff's counsel over here and see if she could get 4 joined up in this lawsuit. So to say that the e-mails that she 5 testified directly -- 6 THE COURT: But that is not relevant to this case. 7 MS. MENNINGER: Absolutely, your Honor. The reason 8 why she decided to come forward as a witness in this case is 9 highly relevant. If she came forward because she has a money 10 motive to be a witness in this case, that is motive and that is 11 cross-examination material, your Honor. She testified the 12 e-mails with the reporter existed within two weeks of when she 13 had a signed fee agreement with these lawyers, so it's not like 14 we're talking about e-mails from 10 years ago. We are talking 15 about e-mails from two weeks before she signed a fee agreement 16 with these lawyers. 17 So you can't say someone trying to sell their story, 18 getting shut down, giving a call to plaintiff's counsel when 19 you've read that Mr. Epstein settles lawsuits is somehow 20 irrelevant to her testimony as a biased financially motivated 21 witness in this case. 22 Then I asked her, where are those e-mails with the 23 reporter? Well, they're in my Yahoo on my computer sitting 24 right there. Did you produce them? No. Was there a request 25 that asked for you to produce any e-mails where you're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 27 of 59 27 H3NSGIUC 1 discussing my client? Yes, I do have that request, I just 2 didn't produce them. 3 There's been no basis presented to your Honor for why 4 she can't produce an e-mail she just testified is sitting in 5 her Yahoo inbox with a reporter she tried to peddle her story 6 to, her story she plans to tell here on the stand here in this 7 case. 8 MR. POTTINGER: Your Honor. I'm sorry, I beg your 9 pardon. 10 THE COURT: Anything else? 11 MS. MENNINGER: No, your Honor. 12 THE COURT: OK. 13 MR. POTTINGER: May I? 14 THE COURT: Let's produce the statement of the 15 journalist. 16 Let me ask the relevance of the stepmother and the 17 boyfriend's occupation. 18 MS. MENNINGER: Yes, your Honor. She has made claims 19 that my client called her parents back in 2007, called them on 20 the phone and had a conversation with them about her and about 21 my client. So she has described these people as percipient 22 witnesses to what she claims was her sex trafficking. 23 She said she had those conversations with my client, 24 she said my client had those conversations with her mother, her 25 father and/or her stepmother back in 2007. So I asked, OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 28 of 59 28 H3NSGIUC 1 What is their phone number? Where do they live? Can I give 2 them a call to ask whether or not they really had a 3 conversation with my client or not? 4 She testified at first that she doesn't have a 5 relationship with those parents anymore. She doesn't speak to 6 them anymore. So I'm not sure where the fear that is being 7 generated about her stepparents is coming from when she hasn't 8 spoken to them in years. But simply asking where someone lives 9 in South Africa, where these stepparents were, you know, I 10 can't exactly go down the street and try to find them in the 11 phone book. I just asked for their phone number and their 12 address so I can give them a call and see if they had a 13 conversation with my client. 14 With regard to her partner's cell phone, your Honor, 15 what she testified is that she had originally contacted this 16 reporter using her own cell phone, and she claims that after 17 she contacted the reporter in October using her cell phone, 18 that she got followed around Spain by some unknown people. She 19 saw them a few times. She would go out on her normal route, 20 and she saw the same people. She thought they were following 21 her, so she got rid of her cell phone and started using her 22 partner's cell phone to have conversations with all of these 23 attorneys, your Honor. Specifically, Mr. Cassell. 24 She said she spoke on that cell phone to Ms. McCawley 25 for over 11 hours. She said she spoke to Mr. Pottinger on that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 831 Filed 04/05/17 Page 29 of 59 29 H3NSGIUC 1 cell phone number. She said she spoke to Mr. Edwards on that 2 cell phone number. Mr. Edwards and Mr. Pottinger flew to Spain 3 to have a meeting with her and showed her some unknown 4 documents while they were there with her. So the relevance of 5 her partner's cell phone number directly relates to whether or 6 not these attorneys have helped her, in my opinion, concoct a 7 story to come and testify in this trial about my client. 8 MR. POTTINGER: Your Honor, may I have one moment? 9 THE COURT: Sure. 10 MR. POTTINGER: Since we're talking about statements 11 made before your Honor that may not be supported by the record, 12 our client, I should say our client, a non-witness party, has 13 never said that she was attempting to sell her story to the 1