EFTA00803113.pdf

H3VOGIU1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 x 3 4 Plaintiff, 5 v. 6 GHISLAINE MAXWELL, 7 Defendant. Oral Argument x New York, N.Y. 9 March 31, 2017 10:10 a.m. 10 Before: 11 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. 16 MEREDITH L. SCHULTZ, ESQ. 17 S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH For Plaintiff 18 BY: PAUL G. CASSELL, ESQ. 19 HADDON, MORGAN AND FOREMAN, P.C. Attorneys for Defendant 20 BY: JEFFREY S. PAGLIUCA, ESQ. LAURA A. MENNINGER, ESQ. 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803113  H3VOGIU1 1 (Case called) 2 THE COURT: Like all of you, you woke up in the middle 3 of the night thinking about this case. I would like to see if 4 I can clarify my understanding. 5 In the motion to dismiss, I concluded, I think, that 6 what was at issue was the truth or falsity of the plaintiff's 7 allegations concerning sexual abuse and the activities of the 8 defendant. I think that's my sense of my own opinion. 9 Yesterday, we were discussing the redactions of the 10 intervention motion. I got the sense, perhaps wrongly, that 11 the plaintiff's position was that the defamation was the truth 12 or falsity of the statements relating to the defendant. 13 Period. Am I correct? 14 MS. McCAWLEY: You are, your Honor, in that the 15 statements about the defendant -- to be clear, because one of 16 the allegations is, of course, she was a madam and a 17 coconspirator with Epstein -- do involve Epstein. 18 THE COURT: Listen. Leave the pejorative out. Okay? 19 Please. 20 MS. McCAWLEY: Sure. 21 THE COURT: Simply because I'm trying to come to 22 grips, obviously, with the scope of this case, which is a real 23 issue, obviously. So is it you are restricting your claim to 24 the truth and falsity of the statements about Maxwell? 25 MS. McCAWLEY: Yes, that is the case, your Honor. The SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803114  H3VOGIU1 3 1 statements about Maxwell and her activities, without using any 2 description of what that is, but yes, as we've described in our 3 pleadings. 4 THE COURT: And whether or not the plaintiff was 5 subject to sexual abuse as a minor is not part of it. I mean, 6 yes, of course, whatever she was when whatever, but that issue 7 we don't have to deal with. MS. McCAWLEY: I'm sorry, your Honor. I think I lost 9 you there. I apologize. 10 So the allegations in the complaint are that when our 11 client came forward and said she was abused by the defendant 12 and Epstein, the defendant came out and said she was lying 13 about that abuse, and some of that abuse did occur when she was 14 a minor. 15 THE COURT: Yes. Well, okay. But there are other 16 things that she sets forth in the Churcher articles, in the 17 motion to intervene, there are a whole series of other things 18 that are -- I mean, there are things that have been said, and 19 my reading of the defendant's statement is, I read it to say 20 all those things are false. But those are not at issue, as far 21 as you're concerned. 22 MS. McCAWLEY: Yes, your Honor. In fact, the omnibus 23 motion we filed today -- and I think, if I'm following you 24 correctly, this may help -- we were trying to streamline the 25 case because there's other individuals, obviously, that my SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803115  H3VOGIU1 4 1 client made statements about. So we were trying to streamline 2 the case to the statements about Maxwell and her involvement 3 with Epstein. 4 So in the omnibus motion you'll see, for example, that 5 they have claimed she's made statements about other 6 individuals, and we say that that's not what's at issue, what's 7 at issue are the statements -- THE COURT: That may be an issue of credibility. That 9 may be an issue of credibility. I'm talking about what we're 10 going to go to the jury on. 11 MS. McCAWLEY: Yes. And that is the statements that 12 Maxwell made about my client. 13 THE COURT: And that's it. 14 MS. McCAWLEY: Yes, your Honor. 15 THE COURT: Let me ask the defense. Does that clarify 16 anything for you? 17 MS. MENNINGER: Could I have one second, your Honor? 18 THE COURT: Sure. Of course. 19 MS. MENNINGER: Your Honor, I think it's slightly more 20 nuanced. Plaintiff has claimed our client's statement is 21 false. Our client's statement is not just limited to the 22 little snippets that they included in their complaint, it's the 23 entire statement. That entire statement talks about 24 allegations against Ms. Maxwell have been proven 25 untrue. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803116  H3VOGIU1 5 1 THE COURT: Yes. But the statement wasn't limited to 2 those allegations. 3 MS. MENNINGER: That's exactly right, your Honor, 4 because right in the middle of that particular statement, the 5 one that's at issue in this case, our client said, "Now her 6 story has grown and evolved, and she's included allegations 7 about world leaders and Alan Dershowitz, which he denies." We can't just take that part out of her statement, that's what 9 Ms. Maxwell put in her statement. 10 And your Honor, what we will ultimately be hearing 11 from Ms. Maxwell about what she believed were the obvious lies 12 that she was referring to and the allegations that she was 13 referring to when she issued that statement. 14 THE COURT: Now, one other question, and then we'll 15 get to the business of the day. I apologize for this 16 diversion. 17 Let me ask you both. Suppose the plaintiff proves 18 that she was sexually abused and that her story is 19 substantially true but she does not prove the role that Maxwell 20 had. Does she win? 21 MS. MENNINGER: No, she loses, your Honor. 22 THE COURT: I think she wins. 23 MS. MENNINGER: Your Honor, the very first -- 24 THE COURT: Other than what you've just said. 25 MS. MENNINGER: Your Honor, our client can only be SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803117  H3VOGIU1 1 alleged to have defamed someone based on facts, not opinions. 2 THE COURT: Agreed. Agreed. 3 MS. MENNINGER: And so she can -- the Davis v. Boeheim 4 case is a perfect example of that, your Honor. She can only 5 speak to facts about which she has personal knowledge. If 6 plaintiff goes and proves that plaintiff went and had sex with 7 Jeffrey Epstein at some point in time and our client wasn't 8 there, our client's statement about that would be opinion, it 9 would not be a fact based on personal knowledge. 10 THE COURT: I mean, okay. But that's an issue of 11 knowledge. That's a different -- 12 MS. MENNINGER: You just said -- 13 THE COURT: That's a different -- 14 MS. MENNINGER: The hypothetical was if our client 15 wasn't involved. If our client wasn't involved then it would 16 be an opinion. 17 THE COURT: Thanks very much. I'm glad for this 18 clarity, which frankly, at the moment, alludes me. 19 Okay, let's move on. Yes, I'll hear from the movant. 20 MS. McCAWLEY: Thank you, your Honor. 21 The first order of business we'd like to address, if 22 it's okay with the Court, is our filing, which was 691, which 23 is our omnibus motion in limine. And if it's okay with the 24 Court, we've split that up a bit. I'm going to start with 25 respect to that motion in limine. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803118  H3VOGIU1 7 1 What we attempted to do with our motion in limine was 2 streamline the trial. And your Honor, based on the comments 3 you've just made, if you want to give me guidance, I'll tell 4 you what I'm thinking with respect to this and what we put 5 forth in our filing. 6 But there are statements that are attributed to my 7 client in other articles and things. For example, there are statements about Bill Clinton being on the island, and the 9 defense wants to bring in those statements to show that -- they 10 believe they can show evidence that he wasn't on the island, so 11 therefore, my client is a liar or is lying about that. 12 Now, your Honor will remember, back in June we sought 13 to depose him because we were concerned about that fact, that 14 they were going to raise it, and we wanted to have him under 15 oath -- 16 THE COURT: Let's back up a little bit. 17 MS. McCAWLEY: Sure. 18 THE COURT: What and where was the statement made? 19 MS. McCAWLEY: The statement was made in a March 5th 20 article. So not the two articles we showed you yesterday -- 21 THE COURT: The Churcher article. 22 MS. McCAWLEY: Yes. But it was another article that 23 came out in March of 2011. 24 And the statement was with respect to my client saying 25 she saw him on Epstein's island. She was introduced to him SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803119  H3VOGIU1 8 1 there. Although no allegations of trafficking or anything of 2 that nature, just that she was there. And they are seeking to 3 introduce evidence through Louie Freeh, who we'll discuss in a 4 moment, they've proposed, and he's clearly an expert that was 5 undisclosed, and through a FOIA record, and through the 6 articles to allege that he wasn't on the island. 7 And so in your Honor's order in 264-1, which is one of 8 the sealed orders, you did not allow us to depose him because 9 you said it was irrelevant. 10 So we're now in a position where at trial they want to 11 put forth that information against my client, and I don't have 12 an under-oath statement from that individual saying whether or 13 not he actually was. 14 Now, what we know is he flew with Jeffrey Epstein at 15 the same time 19 different times internationally and 16 nationally, but we don't have him with respect to this 17 particular allegation under oath. So we would say it would be 18 highly prejudicial for them to be able introduce evidence 19 saying that he wasn't there or that they have some proof or 20 some expert saying he wasn't there when, in fact, we weren't 21 able to ask him directly, the person who is at issue, under 22 oath, whether or not he did, in fact, go there. 23 So one of the streamlining of this case is that 24 allegation has nothing to do with sexual abuse, it doesn't have 25 to do with the statements -- SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803120  H3VOGIU1 1 THE COURT: It has to do with credibility. 2 MS. McCAWLEY: Well, your Honor, I would say, if 3 you're inclined to think that that has -- 4 THE COURT: Well, look. I'm no genius. I don't claim 5 any -- but you know, that is precisely what the defense is 6 going to say. 7 MS. McCAWLEY: Right. I understand, your Honor. And 8 that's why we sought to depose him because it's inherently 9 unfair -- 10 THE COURT: Okay. So you would say I made a mistake. 11 MS. McCAWLEY: No, your Honor. I think it should be 12 excluded, and in my view, I think it's not relevant to the 13 issue at trial here. But they are, of course, going to argue 14 that it is and that they want to bring that in. In fact, like 15 I said, they've got lined up Mr. 16 THE COURT: Well, on the question of credibility, why 17 isn't it relevant? 18 MS. McCAWLEY: Because the statement -- so this case 19 is about whether or not she was sexually abused and 20 trafficked -- 21 THE COURT: Now, that's where I started out. Is it 22 about that? If that is your position, that's something else. 23 If it's a question about her sexual abuse, in addition to, then 24 that's something else. But you just said it isn't about that, 25 it's just about Maxwell and did she tell the truth about SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803121  H3VOGIU1 1 Maxwell. 2 Well, I suppose, I suppose -- I haven't heard the 3 other side and I haven't really thought it all out -- but I 4 suppose if she is untruthful in other instances, that may be 5 relevant to her credibility. 6 MS. McCAWLEY: Well, your Honor, if that's the Court's 7 position, again, we would be in a circumstance -- I mean, 8 there's a couple reasons why the evidence itself that they want 9 to put forth doesn't come in. 10 THE COURT: Well, that's a different thing. 11 MS. McCAWLEY: Sure. That's part of our motion, as 12 well, your Honor. 13 THE COURT: Sure. I read that. I understand that. 14 MS. McCAWLEY: Right. So on the same note, since 15 we're talking about this, I'll just tick off the few that fall 16 within this category, if you don't mind. I understand, your 17 Honor's position, so -- 18 THE COURT: Well, I'm not sure what my position is 19 right now. 20 MS. McCAWLEY: Okay. So with respect to -- there's 21 another category where there's been statements where my client 22 said that she was trafficked to foreign presidents and world 23 leaders that they want to bring into evidence. And in order to 2.1 streamline the case, we've said, well, there's none of those 25 people on the witness list, and just statements in an article SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803122  H3VOGIU1 1 of that nature shouldn't be able to come in. Because when we 2 talk about a character issue, what's at issue here is 3 reputation, and reputation to show the truthfulness of that 4 would not be able to be proven in that circumstance because we 5 don't have the other individuals there to make that statement, 6 so there's no substantive evidence on that point that would be 7 coming in. 8 And the third category is with respect to 9 Mr. Dershowitz, who is on the defendant's witness list for 10 trial, and we have a few points there to raise. I mean, one is 11 obviously that if that were allowed to come in, that causes the 12 trial to become a mini trial about whether or not he, for 13 example, was in the places where she says he was, his 14 calendars, his credit card receipts, his telephone records, all 15 of that. It gets into the issue, you know, obviously we have 16 another witness who says that they were in a similar 17 circumstance with respect to him. So it takes the trial away 18 from whether or not the allegations relating to Maxwell are 19 true or false and turns it into a trial about another 20 individual who we have not made a claim against who comes in. 21 There's also a problem with respect to that because he 22 is also -- he has claimed attorney/client privilege as to his 23 conversations and his advice with respect to Epstein which 2.1 relates to the issues with Maxwell. So in other words, he 25 would be able to testify what he says he didn't do, but then. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803123  H3VOGIU1 12 1 any questions we wanted to ask him about Epstein or Maxwell he 2 says he's got an attorney/client privilege. So we're hand-tied 3 because we can't ask about the issues that we need to ask about 4 with respect to that witness. So in my view, it's highly 5 prejudicial to have him as a witness at trial when, again, our 6 claims are not against him, and we have those issues. 7 Now, you did have -- in your February 2nd order, you also precluded us from asking questions that we contended were 9 non-Fifth Amendment questions of Jeffrey Epstein about 10 Dershowitz, holding that those were not relevant. So we're in 11 a situation where we have another witness that we are not able 12 to elicit all of the information we need to be able to prove 13 the truth or falsity of that, and again, it would be subject to 14 a number of mini trials on that issue of Mr. Dershowitz. 15 So with respect to those three categories -- and it 16 also allows them to use the attorney/client privilege as a 17 sword and a shield in the midst of a trial, which is inherently 18 unfair to my client, as well. 19 So in our view, it's highly prejudicial under 403. 20 Those groupings should not come in. It should not be about, 21 for example, Clinton and whether or not he was on an island, or 22 Mr. Dershowitz or these other world leaders, it should be about 23 the defendant and her statements that my client was lying when 24 she claimed to be abused and trafficked in those statements. 25 THE COURT: Just a second. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803124  H3VOGIU1 1 MS. McCAWLEY: Sure. 2 THE COURT: What you just said, could you repeat what 3 you just said? 4 MS. McCAWLEY: Yes. So the statements that 5 Ms. Maxwell denied were statements that my client made that 6 defendant and Epstein trafficked her, brought her in, had her 7 participate in the sexual abuse of her and other females, she was in that circumstance, she lived that circumstance for a 9 period of time, and so Maxwell came out and called my client a 10 liar, said she was lying about those statements that she made, 11 and said that, obviously, as you know, to the international 12 press about my client and what her experience was with them. 13 So with respect to that, your Honor, those are the 14 categories that we believe would help streamline the case, and 15 again, that those witnesses would be highly prejudicial. 16 On the issue of the information that they'd like to 17 put in with respect to Mr. Clinton, they have Louie Freeh who 18 they've identified. This is a former FBI director. 19 THE COURT: I know. 20 MS. McCAWLEY: You know, yes. So they've put him in 21 without giving us a Rule 26 expert report. He was never 22 disclosed during the time period. His report or what he's 23 going to say, as we understand it, is that he's reviewed the 24 FOIA response and that there's no evidence in his view that 25 Clinton was on this island, again, even though he flew SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803125  H3VOGIU1 1 regularly with Mr. Epstein to other places. 2 So again, we didn't get to depose him as an expert in 3 this matter. We didn't know that he was going to be called as 4 an expert. They're saying he's a lay opinion because he's a 5 private investigator, your Honor. The case law says otherwise. 6 He's been certified as an expert in these exact kind of cases. 7 We put those in our brief. So your Honor, he is really a wolf 8 in sheep's clothing. They're trying to put him on as a lay 9 opinion when he's really an expert witness in this case with 10 sufficient and sophisticated knowledge, that the jury will 11 recognize him as someone who has expertise in this area so, 12 your Honor, we believe he should be precluded from testifying. 13 He has no personal knowledge, it's simply his reliance, as we 14 understand it, on the one FOIA response letter. 15 So your Honor, with respect to the FOIA response 16 letter that's at issue that they are going to try to get into 17 evidence, we've put forth in our papers, again, that's a 18 hearsay document. It's highly prejudicial under 403. They say 19 that it meets self-authentication, but unlike the documents 20 that we showed, for example the 302 that have the seal on it, 21 it has none of those qualifications. 22 They cite to two cases, the Zamara case and the Gary 23 case. Both of those involve getting into evidence underlying 24 records that were produced by the government, not a FOIA 25 letter. So what they're trying to produce is a letter that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803126  H3VOGIU1 15 1 says we've looked and we can't find these records that you've 2 requested. 3 Now, it doesn't address the fact that the government 4 only typically retains records for a few years when they were 5 requesting records from 15 years ago, so it doesn't have the 6 indicia of trustworthiness to be able to say that this is 7 actually the fact because, of course, as we know, the 8 government regularly has to get rid of records. 9 So to use this letter to say, 'Ah-hah, he was never on 10 the island,' when we never got to examine him under oath and 11 say, 'You traveled with him a bunch. Did you also go to the 12 island? My client says she met you there.' We didn't get to 13 ask those questions, so we're in a situation now where that 14 letter coming in would be highly prejudicial because the jury 15 will wonder, well, what does he have to say about this? And we 16 haven't been in a position to be able to do that. 17 So your Honor, for all those reasons we believe that 18 Mr. Freeh should be excluded, the FOIA letter should not come 19 into evidence, and again, we believe that the issue of 20 Mr. Clinton should not be an issue relevant to this trial. 21 Next, your Honor, they also seek to include 22 statements, hearsay statements and newspaper articles about 23 Prince Andrew, and it's actually not his denial, as I 24 understand it, Buckingham Palace's denial of the allegation of 25 my client. But again, Prince Andrew is not on the witness SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803127  H3VOGIU1 16 1 list, we're not able to cross examine him, so what they want to 2 do is introduce triple hearsay of Buckingham Palace saying what 3 Prince Andrews said in a news article without the reporter 4 against my client without our ability to cross examine him on 5 that. 6 So your Honor, they've tried to argue a little bit of 7 a securitous way, I think that it's a verbal act on behalf of Prince Andrew, it doesn't meet that criteria, there's been no 9 statement by -- there's been no action by my client against 10 him, and what's at issue in this case is, again, Maxwell's 11 statements against my client. 12 The case that they cite actually, the Minemyer case, 13 goes against them. It actually talks about how you would have 14 to call the reporter, that that couldn't come into evidence. 15 And so, your Honor, for those reasons, we believe that, again, 16 that's a distraction, it's highly prejudicial to allow a triple 17 hearsay document like that to come in without our ability to be 18 able to cross examine that individual. So for those reasons, 19 your Honor, we believe that that should not come in. 20 They also made an argument that it's somehow an 21 intervening cause or that, you know, it goes to the issue of 22 she should be seeking damages from Prince Andrew, things of 23 that nature. But as we know, because your Honor reviewed the 24 case law with respect to the summary judgment, each individual 25 is responsible for their own defamation, so it doesn't come SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803128  H3VOGIU1 17 1 into consideration whether she could have sued six people for 2 it, 20 other people for it, this case is about Maxwell and her 3 defamation against my client. 4 So again, your Honor, if you look at Sack on 5 Defamation, it addresses that directly, and we believe that 6 that should not come into evidence. 7 So your Honor, that's the first chunk of the omnibus 8 motion that I was addressing. I'm not sure how you want to 9 take it, if you want to have opposing counsel speak on those 10 issues now and then move to the others, or if you want us to 11 keep moving through it? 12 THE COURT: What's your preference? 13 MS. McCAWLEY: I think keep moving through it would be 14 great. 15 THE COURT: What? 16 MS. McCAWLEY: To keep moving it through it, if that's 17 all right, so we can get through argument and then have them 18 address it? 19 THE COURT: Sure. 20 MS. McCAWLEY: Thank you, your Honor. 21 MS. SCHULTZ: Your Honor, this is Meredith Schultz for 22 the plaintiff. The next article in the omnibus motion is to 23 exclude testimony references to This is 24 an issue that I spoke on yesterday related to another motion 25 regarding the same, so I'll keep it brief. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803129  H3VOGIU1 18 1 2 3 4 5 7 21 This should also be excluded under 608(a), which 22 limits interaction of evidence for specific instances of 23 conduct in order to attack the witness' character for 24 truthfulness. Now, I spoke about this at length yesterday. 25 Defendant tries to offer two particular things to say that, oh, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803130  H3VOGIU1 1 she wasn't truthful about something, 2 3 4 So that would 5 honestly be another mini trial and would take us far afield of 6 what facts are relevant to this case. 7 8 9 10 MR. CASSELL: Your Honor, I think I'm the next one up. 11 For purposes of clarity, we're up to point number 7 in our 12 omnibus motion. 13 This one I think is just a very simple and 14 straightforward one. We move to exclude derogatory sexual 15 characterizations. This is a case that your Honor has been 16 framing this morning. It doesn't require use of a term from 17 defense counsel, for example, describing our client as a 18 prostitute or as a slut. We thought we would get agreement 19 when we saw the responsive papers from the defense, but as you 20 know, they objected in it's entirety to this motion, so we're 21 here asking that defense counsel not refer to our client as a 22 prostitute, not refer to her as a slut, and they also advise 23 their witnesses that such language would be inappropriate in a 24 federal trial dealing with a defamation issue. 25 On this particular point about prostitute, it's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803131  H3VOGIU1 2J 1 interesting. Am I conjuring up something that's not going tc 2 happen? No, your Honor. The defendant's own expert report 3 described our client as a prostitute. Your Honor has under 4 advisement the expert report from Dr. Esplin, and so I deposed 5 Dr. Esplin, and I said, "Are you sure that's an accurate term 6 in the context of this case? Because we have a child who 7 cannot consent to sexual activities." And he backed off 8 immediately and agreed that that was an inaccurate term for him 9 to use to describe my client, . So even the 10 defense's own expert says the term "prostitute" is 11 inappropriate. 12 Your Honor has authority, of course, under Rule 611 to 13 manage the trial, to avoid undue harassment or embarrassment. 14 Also Rule 403 allows you to restrict things that would be 15 substantially prejudicial with no probative value, which is 16 exactly what we have here. So we would ask you simply to reign 17 in derogatory language, both from witnesses and opposing 18 counsel. 19 MS. SCHULTZ: Your Honor, I'll be addressing the next 20 several points in the omnibus motion, starting with number 8. 21 I think I can narrow this issue a little bit at the outset. 2 2 2 2 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803132  H3VOGIU1 21 1 2 3 4 It is also, of course, highly prejudicial and should 5 be excluded under Rule 403. 6 7 8 9 10 11 12 13 14 THE COURT: And why do you have it in your expert's 15 report? 16 MS. SCHULTZ: Well, our expert is -- I'm assuming 17 you're referring to Dr. Kliman, who is a physician. He's a 18 medical doctor. He took a full -- 19 THE COURT: There's a whole thing about it. Are you 20 going to withdraw the -- 21 MS. SCHULTZ: No, your Honor. We're only claiming 22 damages with respect to the emotional distress suffered from 23 the defamation. And also, 24 25 They're two different issues. So any marginal SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803133  H3VOGIU1 22 probative value is outweighed by the prejudice. Again, this is only seeking damages based on defendant's defamation. I'm going to move on to point number 9. Ms. seeks to exclude any alleged criminal history from coming into this case. And the Federal Rules of Evidence bar the introduction of this evidence, full stop. As the Court is aware, the only way criminal history could come into evidence is through Rule 609, but that rule itself bars this evidence because, one, there's no conviction, 10 and two, the alleged crime does not go to truthfulness. 11 Of the two parties, your Honor, Ms. is the 12 only one who has not been convicted of a crime here, this is 13 merely an alleged prior bad act which is excluded under Rule 14 404. 15 And this alleged act, which Ms. denies, does 16 not go to truthfulness, and that's an important point here. An 17 accusation of a crime with no conviction does not go to 18 truthfulness, 19 20 21 22 23 24 25 And moreover, the documentary evidence in this case, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803134  H3VOGIU1 23 1 which has been produced in discovery and submitted to this 2 Court, shows that it was defendant who 10 11 12 13 14 15 16 17 18 Moving now to point 10. Ms. has requested 19 that the Court exclude any evidence regarding special 20 For this 21 argument, your Honor, I request that I approach the bench and 22 give you a few documents upon which these arguments are based. 23 I have four documents that I'm handing up. 24 I have to get a little bit into the weeds here, sc 25 please bear with me. In this case, Ms. -- well, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803135  H3VOGIU1 21 1 2 This constitutes prior bad 3 acts which are excluded under Rule 404, particularly since 4 these bad acts do not go to truthfulness, so they're also 5 excluded under Rule 608. 6 They should also be excluded because their prejudice 7 that it would cause Ms. greatly outweighs any probative value and should be excluded under 403. 9 There's a huge remoteness issue here, your Honor. 10 11 There's a lot of case law on 12 this that is in Mr. brief on page 22 to 23. But what 13 you should be aware of, your Honor, is that a close examination 14 of records, looking up what the number codes on these 15 transcripts actually mean, it shows the opposite of the 16 argument that defendant advances in her response brief; that 17 and therefore, not abused by her client. 18 19 20 These transcripts are not 21 self-explanatory. Indeed, looking at the face of them, it 22 seems like she was enrolled and attending school, but much of 23 the information in these records are number codes used by the 24 These school records could 25 not be placed into evidence for all the reasons above, but if SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803136  H3VOGIU1 25 1 you are inclined to do them, you could not place them into 2 evidence fairly without testimony regarding what all these 3 codes on the transcripts mean, or at a bare minimum, the 4 introduction of evidence and instruction that makes explicit 5 what all the codes on the transcripts mean. 6 Defendant either failed to do her due diligence on 7 this and looked at what the codes are before advancing this 8 argument, but either way, it's not a good faith argument 9 because, as you can see in the document I handed up, these 10 codes and their meanings were detailed at length in 11 Ms. opposition to the motion for summary judgment, 12 and I would ask the Court to refer to the facts at page 32 of 13 the statement of facts. 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803137  H3VOGIU1 25 1 Turning next to plaintiff's motion in limine number 2 11. This is a related issue. We ask that the Court exclude 3 characterizations of Ms. bad behavior during her 4 childhood, 5 6 prior bad acts, an assault on her character on one hand, with a reputation for truthfulness of another. Prior bad acts she may have committed as a child, like 9 is inadmissible and a defamation action where the 10 damages relate to her reputation. That she 11 or was an does not go to truthfulness. 12 These events also do not go to her reputation. Her 13 reputation for truthfulness as an adult prior to the defamation 14 is the only reputation that's at issue in this case. 15 Defendant's defamatory statements damaged Ms. 16 reputation when she was This does not open the 17 door into evidence of Ms. generalized character, 18 particularly one from a Occurrences, such 19 as are simply 20 prior bad acts under Rule 404 that should be excluded. They 21 should also be excluded under Rule 405 because this is 22 introduction of evidence to try to show her character. And 23 Rule 608(a) also limits evidence and testimony about a witness' 24 reputation for having a character for truthfulness or 25 untruthfulness, it doesn't come in under that rule. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803138  H3VOGIU1 27 1 Her reputation for truthfulness does not go to any bad 2 acts she may have committed 20 years ago. And your Honor, even 3 criminal convictions are generally not admissible 10 years 4 after the fact. So presentation of this type of evidence is 5 simply nothing more than a smear campaign, which is prescribed 6 by multiple Federal Rules of Evidence. 7 And finally, any marginal probative value of these bad acts as a child is vastly outweighed by the undue prejudice it 9 would cause Ms. before a jury. 10 Your Honor, now I'm turning to point number 12. We've 11 asked the Court to exclude evidence relating to the tax 12 compliance of Ms. 13 Rule 401 is the first rule under which this should be 14 excluded. 15 does not go to whether or not defendant defamed Ms. and 16 does not go to whether or not defendant abused Ms. 17 It should also be excluded under 403. It is highly 18 prejudicial. It would give the wrong impression to the jury 19 20 21 22 Proving whether or not Ms. 23 ould also be a mini trial and, frankly, a 24 sideshow to this case. 25 Furthermore, all of defendant's conclusions about SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803139  H3VOGIU1 28 1 Ms. 2 5 Second, any allegations that 6 is prejudicial, misleading, confusing to the jury 7 because it has nothing to do with the claim at issue in this 8 case. 9 Your Honor, we asked for defendant's tax returns in 10 this case. If they go to truthfulness, as defendant argues, 11 they also go to defendant's truthfulness. At this point, we're 12 not going to get them until the first day of trial, so we will 13 not be able to effectively cross examine defendant on those tax 14 returns, and we won't be able to see until then if she's paid 15 taxes on all the money and gifts and in-kind payments from 16 Epstein that she's received or has kept that away from the 17 government. Unlike Ms. tax information, defendant's 18 tax information goes to our case in chief and is relevant 19 evidence. 20 On point number 13, we move to exclude evidence 21 relating to Ms. alleged tax compliance. Your Honor, 22 this is a defamation action where reputation is at issue. Tax 23 compliance does not go to a reputation, it is a private matter. 2.1 Second, there is no evidence in this case that any 25 government, either United States or believes that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803140  H3VOGIU1 217 1 she is noncompliant with her taxes. Defendant's purported 2 expert's evaluation of this is wholly flawed, as explained in 3 Ms. motion in limine on the same. 4 Similarly, Ms. taxes are wholly irrelevant 5 to this case. Even actions brought by the government, your 6 Honor, where the cause of action is centered on nontax 7 compliance exclude evidence of prior tax noncompliance when it takes the case too far afield of the issue being tried. 9 Courts also exclude this evidence under 403 if there's 10 no substantial nexus between the alleged tax noncompliance and 11 the matter at hand. Here, defendant fails to show any type of 12 substantial nexus to this defamation claim. None whatsoever. 13 Additionally, resolving Ms. tax compliance, 14 this is a point that's in dispute among the parties, and 15 resolving such an issue would also involve another mini trial 16 where Ms. would put on evidence of her tax compliance 17 and, at the end of that mini trial, the jury would have no more 18 information whether or not defendant defamed Ms. when 19 she called her a liar about being sexually abused. Trying to 20 make this an issue, this is simply a device for putting the 21 settlement agreement and the amount between Ms. and 22 Jeffrey Epstein into evidence. 23 As has been briefed extensively, such a settlement 24 payment is tax exempt under the United States law, but that's 25 all this is, it's a device to try to get an improper admission SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803141  H3VOGIU1 30 1 of a settlement amount between Ms. and Jeffrey Epstein. 2 Accordingly, this should be completely excluded because any 3 marginal probative value this has on the claims is greatly 4 outweighed by the prejudice to Ms. 5 I am not up for the next one, so I'm going to take a 6 break. Thank you. 7 MR. CASSELL: Again, your Honor, I'm up to number 14 now, the issue of Ms. being 9 This is not relevant or minimally relevant. It's 10 Ms. burden, of course, to show the emotional distress 11 damages that she suffered as a result of Ms. Maxwell's 12 defamatory statement, and the jury can agree or disagree with 13 whether she's carried her burden of proof. 14 If we understand the defendant's argument correctly, 15 they say, well, this would have been a distressing event in 16 your life and, therefore, we should be free to introduce it in 17 front of the jury. Of course, that argument would allow, if 18 accepted, essentially any bad thing that's happened in any 19 plaintiff's life to be introduced if they seek emotional 20 distress damages because, my goodness, this event here or there 21 had some emotionally distressing effect on you. So it has 22 minimal to low probative value, and the prejudice is very 23 substantial. 24 Your Honor, obviously, has a great deal of experience 25 and are well aware of the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803142  H3VOGIU1 31 1 attitude that has to be confronted in various cases. 2 Frequently, if there's that's at issue, an 3 expert witness comes in to explain to the jury, oh, why didn't 4 5 6 And there is a whole literature that I know 7 your Honor is familiar with and that we cited in our brief, as 8 well. 9 We don't want to get into that in front of the jury in 10 this particular case. This is a blame the victim tactic that 11 shouldn't be allowed. This has very marginal, if any, 12 probative value and a very significant prejudicial effect 13 because the jury will potentially blame the victim for staying 14 with her abusive spouse. 15 Now, in addition, you'll notice from the pleading that 16 the defendants aren't intent just on asking questions about 17 this, but they also want to go into the 18 19 That, 20 obviously, has even less probative value than the information I 21 was discussing a moment ago and should be independently 22 excluded. 23 The next issue up is item 15. And here, we ask to 24 have excluded any suggestions that sex with a 17-year-old is 25 permissible. You will recall that there's debate about exactly SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803143  H3VOGIU1 32 1 what years and what birthdays were in play and exactly what 2 Ms. said about whether she was 15, 16, or 17. Fair 3 enough. They can cross examine her about, 'Did you say 16 when 4 you were, in fact, 17,' or whatever it is. We're not trying to 5 exclude that. 6 The limited point that we're trying to address here is 7 that they shouldn't say, 'Ah-hah, she was 17, therefore, she's 8 fair game.' 9 Under Florida law that we've cited in our pleadings, 10 there is no possibility of a child under the age of 18 11 consenting to sexual activities of the nature that are at issue 12 here, and therefore, the defendant should be precluded from 13 making that kind of suggestion. And so that's item 15. 14 MS. SCHULTZ: Turning to item 16 in the omnibus 15 motion. Ms. has moved the Court to exclude medical 16 records. Here, I would actually like to direct the Court's 17 attention to defendant's response. Defendant here does not 18 cite a single case where a court allowed admission of unrelated 19 and irrelevant medical records into evidence at trial. 20 Defendant's brief also doesn't show how any medical 21 records are relevant here, and there are privacy issues at 22 stake. In fact, defendant does not cite to a single case in 23 which a court allows any medical records into evidence. 24 In defendant's entire response she cites two cases 25 only. Neith