gov.uscourts.nysd.447706.1090.46.pdf

Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------X ............................................. VIRGINIA L. GIUFFRE, Plaintiff, v. 15-cv-07433-RWS GHISLAINE MAXWELL, Defendant. --------------------------------------------------X REPLY IN SUPPORT OF MOTION TO REOPEN DEPOSITION OF PLAINTIFF VIRGINIA GIUFFRE 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 1090-46 Filed 07/30/20 Page 2 of 14 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. PLAINTIFF’S PRODUCTION OF KEY DOCUMENTS AFTER HER DEPOSITION NECESSITATES ADDITIONAL EXAMINATION ............................................................. 2 A. Plaintiff failed to identify her health care providers and produce their records prior to her deposition, despite this Court’s order ........................................................................ 2 B. Plaintiff failed to produce emails from her iCloud and Hotmail accounts....................... 4 C. Plaintiff failed to address issue of her employment records ............................................ 5 D. Newly obtained education records and other witness testimony contradict Plaintiff’s deposition ......................................................................................................................... 5 E. Plaintiff identified new witnesses in her Rule 26 disclosures after her deposition .......... 6 II. PLAINTIFF’S COUNSEL INSTRUCTED PLAINTIFF NOT TO ANSWER RELEVANT, NON-PRIVILEGED QUESTIONS IN HER FIRST DEPOSITION ...................................... 7 III. PLAINTIFF CONCEDES THAT HER ERRATA SHEET IS PROPERLY THE SUBJECT FOR RE-OPENED DEPOSITION.......................................................................................... 9 IV. RESTRICTIONS TO TWO HOURS AND VIA VIDEOTAPE UNJUSTIFIED ................... 9 CERTIFICATE OF SERVICE ..................................................................................................... 12 i  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 3 of 14 Defendant Ghislaine Maxwell submits this Reply to Plaintiff’s Opposition (“Response”) to Motion to Reopen Deposition of Plaintiff (“Motion”), and as grounds therefore states as follows: INTRODUCTION1 Plaintiff concedes the reopening of her deposition based on (a) the late production of records concerning Plaintiff’s medical and mental health treatment, (b) her unjustifiable refusal to answer questions related to statements the media “got wrong,” (c) material edits to her deposition testimony through her errata sheet. Plaintiff did not address her newly disclosed employment records and thus it should be deemed admitted. Apparently, she still contests questions regarding other items not disclosed until after her deposition, including (a) iCloud and Hotmail emails, (b) school records from Forest Hills High School, Wellington High School and Survivors Charter school, and (c) witnesses newly identified in her Third and Fourth Revised Rule 26 disclosures. There is no legally principled reason to exclude these topics during Plaintiff’s reopened deposition and Ms. Maxwell should be permitted to examine Plaintiff based on this information produced after her deposition although requested before. The other limitations proposed by Plaintiff are not appropriate. Due to the quantity of documents and the number of topics, two hours will be insufficient to appropriately inquire. Moreover, Plaintiff’s deposition should be in person; she chose to move to Australia from Colorado during the pendency of this case and has been in the US for weeks attending witness depositions and other litigation matters by her own choosing. Deposition by videoconference will be extremely cumbersome to accomplish given the hundreds of pages of documents to be 1 Defendant conferred with counsel for Plaintiff regarding this Motion prior to its filing. By email of May 8, 2016, Mr. Pagliuca requested conferral regarding Plaintiff’s refusal to answer questions at her deposition. That conferral was held on May 9 and May 10. Mr. Edwards offered, for example, to consider whether a verified representation by Plaintiff all of the statements that the media “got wrong” would suffice instead of a re-opened deposition. 1 Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 4 of 14 Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 5 of 14 Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 6 of 14  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 7 of 14 Plaintiff since the beginning of this case. Plaintiff concededly did not search that account for responsive documents but has represented to this Court that she will sign the release provided by Microsoft, obtain the records and search the account. Thus, any responsive emails from that account likewise will not have been available at the time of Plaintiff’s deposition. Plaintiff does not argue the responsive emails are not relevant, nor can she. Thus, Ms. Maxwell should be entitled to reopen Plaintiff’s deposition to inquire regarding those emails as well as any that are produced from the Hotmail account. C. Plaintiff failed to address issue of her employment records In her Response, Plaintiff did not address Ms. Maxwell’s request to reopen Plaintiff’s deposition regarding late-disclosed employment records. Accordingly, the issue should be deemed admitted and inquiry into Plaintiff’s employment based on the new records permitted. D. Newly obtained education records and other witness testimony contradict Plaintiff’s deposition Plaintiff testified at her deposition that she began working at Mar-a-Lago during a break from her GED classes, that she believed it was a summer job, and that while she cannot pinpoint the exact date, it was to the best of her recollection in or about June 2000 when she was still 16 years old. Menninger Decl., Ex. D at 57. This Court ordered Plaintiff to produce her education records and, mere days before her deposition, Plaintiff signed releases for some of the institutions she attended in Florida. Defendant obtained records pursuant to those releases after the deposition (despite having sought them by discovery request in February). The transcripts from Royal Palm Beach and Forest Hills High School directly contradict Plaintiff’s story. In fact, they are highly relevant because they show that Plaintiff was in school during the summer of 2000, finishing on August 15, 2000, when she was 17 years old. Appropriate areas of inquiry at a reopened deposition of Plaintiff would be matching her story up to the records and 5 Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 8 of 14  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 9 of 14 are almost entirely ones that were taken off Plaintiff’s list. Presumably, they have information relevant to this case and Ms. Maxwell is entitled to question Plaintiff on these disclosures to determine what, if any, relevant information these newly disclosed witnesses might have. II. PLAINTIFF’S COUNSEL INSTRUCTED PLAINTIFF NOT TO ANSWER RELEVANT, NON-PRIVILEGED QUESTIONS IN HER FIRST DEPOSITION Plaintiff’s counsel glosses over their instruction to Plaintiff not to answer questions at her deposition regarding non-privileged issues. During her deposition, the following exchange occurred: Q: You did not read the articles published by Sharon Churcher about your stories to Sharon Churcher? A: I have read some articles about what Sharon Churcher wrote. And a lot of the stuff that she writes she takes things from my own mouth and changes them into her own words as journalists do. And I never came back to her and told her to correct anything. What was done was done. There was nothing else I can do. Q: So even if she printed something that were untrue you didn't ask her to correct it, correct? A: There was things that she printed that really pissed me off, but there was nothing I could do about it. It's already out there. Q: She printed things that were untrue, correct? A: I wouldn't say that they were untrue. I would just say that she printed them as journalists take your words and turn them into something else. Q: She got it wrong? A: In some ways, yes. Q: Did she print things in her articles that you did not say to her? MR. EDWARDS: I object and ask that the witness be given the opportunity to see the document so that she can review it and answer that question accurately. Otherwise she's unable to answer the question. I'm not going to allow her to answer. Q: Did Sharon Churcher print things that you did not say? MR. EDWARDS: I'm going to instruct my client not to answer unless you give her what it is that you're talking about that was printed. And she will tell you the answer, the accurate answer to your question. Just without the document to refresh her recollection and see it, she's not going to answer the question. Q: Did Sharon Churcher print things that you did not say? MR. EDWARDS: Same objection. Same instruction not to answer. 7  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 10 of 14 Q: Did Sharon Churcher print things that you felt were inaccurate? MR. EDWARDS: Same objection. Same instruction. If she sees the document, she's going to answer every one of these questions. Q: Did any other reporter print statements that you believe are inaccurate? MR. EDWARDS: Same objection. Same instruction. Q: Did any reporter print statements about Ghislaine Maxwell that were inaccurate? MR. EDWARDS: Same objection. Same instruction. Menninger Decl., Ex. D at 220-23. At no time did Plaintiff say she “could not remember” what Churcher “got wrong.” Mr. Edwards refused to allow her to answer the question unless her recollection was “refreshed,” even though she never said she lacked a recollection. This is a patently improper instruction not to answer, as well as improper suggestion to his client that she needed to have a “refreshed” memory by looking at articles from Ms. Churcher. The instruction not to answer was improper and Plaintiff should be required to answer all questions regarding inaccuracies in the media reports of this case. Indeed, it is hard to conceive of an area more directly relevant to this single- count defamation case in which Ms. Maxwell has said that Plaintiff’s statements to the press were lies, and now even Plaintiff is saying that the press “got it wrong”. Plaintiff’s counsel similarly would not allow Plaintiff to answer questions regarding her communications with law enforcement, specifically regarding Ms. Maxwell. Ms. Maxwell respectfully disagrees that this area should be off limits. Efforts by a Plaintiff to have another party charged with a crime, including any statement made during the course of those efforts, are clearly relevant, reflect bias and motive, and may be used for impeachment. There is no privilege which attaches to a civil litigant’s prior statements to law enforcement and to the extent 8 Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 11 of 14  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 12 of 14 All of these are properly the subject of additional inquiry at a deposition and to address them will require more than two hours. While Ms. Maxwell does not believe that seven hours will be necessary, she did not use all of the first seven hours based on Plaintiff’s refusal to answer relevant non-privileged questions and believes that she will be able to finish her examination on these topics within a reasonable period of time, most likely between 4-5 hours. Further, such deposition should be done live and in person, not via videotape from Australia. Video conference depositions are exceedingly difficult and cumbersome when handling the number of records at issue here – medical records, school records, employment records and emails, as well as press statements, errata sheets and the like. Counsel will not have the ability to hand over documents to the witness as needed. Plaintiff argues that her childcare needs require her to be in Australia. Notably, Plaintiff has spent several weeks in the U.S. attending in person the depositions of her former fiancé and boyfriend in Florida (and calling them in advance of their testimony) and, upon information and belief, attending to other litigation and personal matters. Plaintiff lived in Colorado at the time she filed this litigation and made a decision to return to Australia after doing so. She and her counsel failed to disclose relevant doctors and medical records, emails, employment and school records in advance of her deposition, and she was instructed not to answer relevant, non- privileged questions. She chose to change her deposition testimony after the fact. WHEREFORE, Ms. Maxwell respectfully requests a reopened deposition of Plaintiff to include the topics of: 1. Any documents disclosed after May 3 regarding: a. Plaintiff’s medical and mental care b. Plaintiff’s employment c. Plaintiff’s education d. Plaintiff’s emails from her iCloud and Hotmail accounts 10  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 13 of 14 2. Any question she was instructed not to answer regarding: a. Inaccurate statements attributed to her in the press; b. Her communications with law enforcement about Ms. Maxwell; 3. Any changes to her deposition testimony as reflected on her errata sheet. Ms. Maxwell asks the Court to deny Plaintiff’s request that the reopened deposition be limited to two hours or occur via remote means. Finally, Ms. Maxwell requests costs incurred in bringing this Motion based on counsel’s improper instructions not to answer relevant and non- privileged questions. Dated: July 8, 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 11  Case 1:15-cv-07433-LAP Document 1090-46 Filed 07/30/20 Page 14 of 14 CERTIFICATE OF SERVICE I certify that on July 8, 2016, I electronically served this REPLY IN SUPPORT OF DEFENDANT’S MOTION TO REOPEN DEPOSITION OF PLAINTIFF VIRGINIA GIUFFRE via ECF on the following: Sigrid S. McCawley Paul G. Cassell Meredith 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 12