gov.uscourts.nysd.447706.885.0.pdf

Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 1 of 7 United States District Court Southern District of New York Virginia L. Giuffre, Plaintiff, Case No.: 15-cv-07433-RWS v. Ghislaine Maxwell, Defendant. ________________________________/ PLAINTIFF MS. GIUFFRE’S MOTION TO EXCLUDE PHILIP BARDEN FROM TESTIFYING AT TRIAL, TO EXCLUDE DEFENSES BASED UPON CERTAIN DOCUMENTS AND TO EXCLUDE THEIR PRESENTATION AT TRIAL, FOR AN ADVERSE INFERENCE JURY INSTRUCTION, AND FOR ATTORNEYS’ FEES Sigrid McCawley BOIES, SCHILLER & FLEXNER LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011  Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 2 of 7 This Court recently issued an Order requiring that Defendant These documents are responsive to 2  Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 3 of 7 Ms. Giuffre’s previous Requests for Production,1 they contain Court-ordered search terms, and they are not protected by any privilege, work product or otherwise. Accordingly, they should have been produced pursuant to this Court’s previous Order, and Defendant willfully failed to produce them. It is well-settled law that once an attorney deliberately distributes her work product to an adverse party, it loses any privilege. Costabile v. Westchester, New York, 254 F.R.D. 160, 164 (S.D.N.Y. 2008) (“Work product may be shown to others when there is some good reason to show it; however, once a party voluntarily discloses work product to an adversary, the need for the privilege disappears.”); Grumman Aerospace Corp. v. Titanium Metals Corp. of America, 91 F.R.D. 84, 90 (D.C.N.Y., 1981) (“Disclosure to an adversary waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement.). 1 The Requests to which these documents are responsive include, but are not limited to, Ms. Giuffre’s Document Request No. 12 and Request No. 17 from Ms. Giuffre’s Second Request for Production. See McCawley Dec. at Exhibit 3. 3  Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 4 of 7 See August 9, 2016 Order. yet these responsive documents – that Defendant now claims are protected by the work product doctrine – do not appear on Defendant’s Privilege Log. See Accordingly, not only did Defendant improperly withhold these documents, she also improperly failed to disclose them on her privilege log. They were simply hidden. 3 The Requests to which these documents are responsive include, but are not limited to, Ms. Giuffre’s Document Request No. 12 and Request No. 17 from Ms. Giuffre’s Second Request for Production. See McCawley Dec. at Exhibit 3. 4  Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 5 of 7 This is yet another document wrongfully withheld by Defendant in contravention of this Court’s August 9, 2016 Order. The Court is now in possession of three additional documents that Defendant failed to produce in contravention of this Court’s Order, in addition to the emails (emails that included among them that Defendant wrongfully withheld. So, it is not simply the emails that Defendant withheld, it was also non-privileged, responsive These documents should have been gathered by the Court-ordered search terms and produced, but they were not, not until this Court ordered Finally, it is apparent REQUESTED RELIEF For the foregoing reasons, Ms. Giuffre respectfully asks this Court to give the jury an adverse inference instruction for failure to produce electronically stored information, exclude Barden from testifying at trial, forbid any use of the Barden documents at trial by Defendant, exclude any of Defendant’s defenses relating to these documents or the presentation of these documents to the jury, award attorneys’ fees to Ms. Giuffre for bringing the instant motion, and 5  Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 6 of 7 provide such other relief as the Court deems just and proper. Dated: May 1, 2017 Respectfully Submitted, BOIES SCHILLER FLEXNER LLP By: /s/ Sigrid McCawley Sigrid McCawley (Pro Hac Vice) Boies Schiller Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011 David Boies Boies Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 Bradley J. Edwards (Pro Hac Vice) FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Paul G. Cassell (Pro Hac Vice) S.J. Quinney College of Law University of Utah 383 University St. Salt Lake City, UT 84112 (801) 585-52024 4 This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation. 6  Case 1:15-cv-07433-LAP Document 885 Filed 05/02/17 Page 7 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 1, 2017, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CM/ECF. Laura A. Menninger, Esq. Jeffrey Pagliuca, Esq. HADDON, MORGAN & FOREMAN, P.C. 150 East 10th Avenue Denver, Colorado 80203 Tel: (303) 831-7364 Fax: (303) 832-2628 Email: [email protected] [email protected] /s/ Sigrid S. McCawley Sigrid S. McCawley 7