EFTA00619558.pdf
Case 1:15-cv-07433-RWS Document 228 Filed 06/20/16 Page 1 of 29
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
Plaintiff,
v.
15-cv-07433-RWS
GHISLAINE MAXWELL
Defendant.
X
DEFENDANT'S COMBINED MEMORANDUM OF LAW
IN OPPOSITION TO EXTENDING DEADLINE TO COMPLETE DEPOSITIONS AND
MOTION FOR SANCTIONS FOR VIOLATION OF RULE 45
Laura A. Menninger
Jeffrey S. Pagliuca
HADDON, MORGAN, AND FOREMAN. P.C.
East 10th Avenue
Denver, CO 80203
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TABLE OF CONTENTS
INTRODUCTION 1
BACKGROUND 3
LEGAL AUTHORITY 5
I. PLAINTIFF'S LACK OF DILIGENCE 6
6
B. Ross Gow 9
C. Jean Luc Brunel 10
D. Jeffrey Epstein 12
E. MI and 14
II. FIFTH AMENDMENT BY EPSTEIN, OR NOT ADMISSIBLE
IN THIS CASE AGAINST MS. MAXWELL 15
III. PLAINTIFF'S BAD DISCOVERY TACTICS SHOULD NOT BE REWARDED
WITH EXTRA TIME 18
1. Plaintiff's Rule 26 Revolving Door 18
2. Plaintiff's Recurrent Rule 45 Violations 19
IV. MS. MAXWELL'S GOOD EFFORTS TO CONDUCT DISCOVERY 20
V. GOOD CAUSE EXISTS TO TAKE RE-DEPOSE PLAINTIFF AND TO DEPOSE
SHARON CHURCHER EXISTS 23
VI. ALTERNATIVELY, ALL OTHER DEADLINES NEED TO BE EXTENDED 24
CERTIFICATE OF SERVICE 26
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TABLE OF AUTHORITIES
Carlson v. Geneva City School Dist., 277 F.R.D. 90 (W.D.N.Y. 2011); compare Reese v.
Virginia Intern. Terminals, Inc., 286 F.R.D. 282 (ED. Va. 2012) 6
Fox Industries, Inc. v. Gurovich, No. 03-CV-5166, 2006 WL 2882580, *11 (E.D.N.Y. Oct. 6,
2006) 19
Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.2003). 5
Iantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) 6
LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997) 16
Murphy v. Board ofEduc., 196 F.R.D. 220, 222 (W.D.N.Y.2000) 19
Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y.
2012) 5
Sokol Holdings, Inc. v. BMD Munai, Inc., 05 Civ. 3749 (KMW)(DF), 2009 WL 2524611 at *7
(S.D.N.Y. Aug. 14, 2009) 5
Usov v. Lazar, 13-cv-818 (RWS), 2014 WL 4354691, at *15 (S.D.N.Y. Sept. 2, 2014) 20
li
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Defendant Ghislaine Maxwell ("Ms. Maxwell") files this Combined Response
("Response") in Opposition to Plaintiff's Motion to Extend Deadline to Complete Depositions
("Motion") and Motion for Sanctions For Violation of Rule 45, and states as follows:
INTRODUCTION
Apparently, Plaintiff seeks to take six (6) depositions beyond the scheduling order
deadline of July I, yet has failed to demonstrate good cause or diligence as to any.' The
witnesses include (1) , a witness that Plaintiff initiated informal attempts to
depose on June 9, and (2) Ross Gow, who Plaintiff began steps to depose under the Hague
Convention in London last Friday, June 17. Plaintiff also seeks to untimely depose (3) Jean Luc
Brunel, a witness she had noticed for a mid-June deposition, who apparently did not appear on
that date with agreement and consent of Plaintiff's counsel.
The remaining three witnesses Plaintiff seeks to untimely depose are ones who repeatedly
have expressed their intention to take the Fifth Amendment as to all questions posed. Counsel
for (4) Jeffrey Epstein, offered to accept service on or about April 11 but Plaintiff ignored that
offer for more than six weeks. Plaintiff only began on June 12 any attempt to schedule that
deposition in the Virgin Islands. Last week, Mr. Epstein's counsel filed a Motion to Quash his
deposition subpoena. The final untimely depositions sought by Plaintiff are for witnesses
(5) and (6) about whom Plaintiff has made no public claims and
thus, have no testimony relevant to this defamation action concerning whether Plaintiff's public
In her Amended Corrected Reply In Support of Motion to Exceed Ten Depositions, Plaintiff represents that she
onl seeks to take three de ositions beyond the limit of ten and that she no longer seeks depositions of witnesses
JoJo Fontanilla, and . (Doc. #224 at 2 n.4) She does not state her
intentions with respect to other witnesses, like Alessi, that she noticed but never deposed. However,
comparing that Reply with her other motions, counsel has deduced the remaining witnesses from whom Plaintiff
apparently seeks to secure deposition testimony in July. Plaintiff has already taken 6 depositions and another
scheduled tomorrow. Thus by the close of discovery she will have taken 7 of her allotted 10 depositions.
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allegations about Ghislaine Maxwell are — or rather are not — true. The attempted service of
subpoenas on Epstein, and all violated Rule 45(a)(4) and should be
sanctioned by this Court.
As to all of these witnesses, Plaintiff has fallen far short of the "good cause" required by
Rule 16(b)(4) to modify the Scheduling Order. In fact, for the most part, her failures to actively
pursue depositions with these witnesses qualifies as in-excusable neglect: She frittered away
seven of the eight months of the discovery period and now has placed Ms. Maxwell, this Court,
and the witnesses in the untenable position of trying to accommodate her last-minute scramble.
In the absence of any acceptable excuses, and for the limited evidentiary value that most of the
requested witnesses can provide, this Court should deny the request for the extra time to take
these six depositions.
The only witnesses for whom depositions should be permitted following the discovery
cut-off are: (1) Ms. Sharon Churcher, Plaintiff's friend, advocate and former journalist with the
Daily Mail, who filed a Motion to Quash her subpoena on the day before her scheduled
deposition? and (2) Plaintiff, who refused to answer questions at her deposition concerning
highly relevant, non-privileged information.;
Alternatively, if the Court is to grant additional time for Plaintiff to take depositions, Ms.
Maxwell will be unduly prejudiced without sufficient additional time to (a) secure any witnesses
to rebut testimony gleaned from these witnesses, (b) conduct discovery of Plaintiff's retained
experts, (c) submit a summary judgment motion which includes facts learned from these late
depositions, and (d) prepare for trial. Thus, if the Court grants Plaintiff's motion, the remaining
deadlines in the Scheduling Order ought to be extended accordingly.
2
Ms. Churcher's motion to quash will be heard this Thursday by the Court.
Ms. Maxwell is filing simultaneously with this Response a Motion to Re Open Plaintiff's Deposition.
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BACKGROUND
To divert attention away from her own lack of diligence, Plaintiff characteristically
devotes much of her Motion blaming Ms. Maxwell and her counsel for her own problems with
depositions. Not only is Plaintiff's account factually inaccurate, none of it matters to whether
she could timely complete the six depositions at issue.
For example, the scheduling of Ms. Maxwell's deposition (which depended, among other
things, on an historic snowstorm, a disputed protective order, Plaintiff's failure to timely produce
documents, and counsel's conflicting calendars, all of which have been amply documented with
this Court)' does not inform any analysis regarding Plaintiff's lack of diligence in pursuing
depositions of these six witnesses. See Rule 26d)(3) ("Unless the parties stipulate or the court
orders otherwise for the parties' and witnesses' convenience and in the interests of justice: (A)
methods of discovery may be used in any sequence, and (B) discovery by one party does not
require any other party to delay its discovery."). Likewise, receipt of Ms. Maxwell's Rule 26
disclosures in February also had nothing to do with these witnesses. Id. Notably, each of the
witnesses who Plaintiff now seeks to depose were known to her from the outset; all but
were included in her initial Rule 26 disclosures served on November 11, 2015 and two of
the six were specifically mentioned in Plaintiff's Complaint.
Finally, the fact that witness Rinaldo Rizzo had a deposition re-scheduled from April
until June does not have any bearing on the issue presented by this motion. Mr. Rizzo was
deposed on June 14 and he has nothing to do with the remaining depositions. Mr. Rizzo, in fact,
was practically gleeful to be a witness:
Doc. #62 & Tr. of Hearing of Mar. 24 at 4.
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. Plaintiff's claim that Mr.
Rizzo is an "example of delay that has harmed [her] ability to obtain all depositions in a timely
manner" (Mot. at 3) is specious.
Contrary to Plaintiff's assertion, discovery began in this case on October 23, 2015,
following the parties' Rule 26(0 conferral. See Fed.R.Civ.P. 26(d)(1). At the Rule 16(b)
scheduling conference on October 28, 2015, this Court directed the parties to complete all fact
discovery by July 1, 2016. (Doc. #13) On November 30, 2015, contemporaneous with the filing
of her Rule 12(b) Motion to Dismiss, Ms. Maxwell also requested of this Court a stay of
discovery pursuant to Rule 26(c). (Doc. #17) That motion was denied on January 20, 2016, with
an additional two-week period granted to respond to Plaintiff's First Request for Production of
Documents.6 The discovery was thus never stayed.
Plaintiff erroneously asserts that that discovery "did not commence in this matter until"
February 8. What she means is that she neglected to seek any non-witness depositions until then;
nothing in the Rules of Civil Procedure, this Court's Orders, or the law prevented Plaintiff from
doing so at any point after October 23, 2015.7 Plaintiff has had over eight months to subpoena
5
See, Menninger Declaration, Ex. A (Rizzo deposition transcript excerpts). Of course, Plaintiff's counsel has
engaged in their own last-minute "unavailability" for a deposition scheduled by Ms. Maxwell, as to Plaintiff's
former fiancé, a witness who is hostile, required numerous service attempts at great cost and inconvenience, and
who then (because of Plaintiff's last minute unavailability) had to be re-served by a process server who swam
through a swamp to get to his home, at additional cost and inconvenience.
6
By agreement of the parties, the time to respond was extended an additional six days because defense counsel was
in a jury trial at the time the Court's Order was handed down.
7
See, e.g., MN Opp'n to Mot. to Stay (Doc. #20) at 17 n.8 ("As of the date of this filing, zero (0) disposition [sic]
notices have been propounded on the Defendant").
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witnesses, schedule depositions and conduct them. Instead, she waited until the last minute and
now complains of lack of time. Any lack of time is a product of her own bad ■ and negligent
litigation tactics and should not be sanctioned by this Court.
The failure to timely secure the depositions of the remaining six witnesses is through no
fault of Ms. Maxwell or her counsel. As to these witnesses, Ms. Maxwell and her counsel have
played no role in hindering Plaintiff's ability to depose the witnesses; in fact, as to four of the six
Plaintiff attempted to serve subpoenas on the witnesses before ever providing notice to the
defense, in clear violation of Rule 45(a)(4).
LEGAL AUTHORITY
Rule 16(b) permits modification of a scheduling order only upon a showing of "good
cause." To satisfy the good cause standard "the party must show that, despite its having
exercised diligence, the applicable deadline could not have been reasonably met." Sokol
Holdings, Inc. v. BMD Munai, Inc., 05 Civ. 3749 (KMW)(DF), 2009 WL 2524611 at *7
(S.D.N.Y. Aug. 14, 2009) (emphasis added) (citing Rent-A-Center Inc. v. 47 Mamaroneck Ave.
Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (McMahon, J.)); accord Parker v. Columbia
Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (" `[G]ood cause' depends on the diligence of
the moving party."); Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453,
457 (S.D.N.Y. 2012) (Engelmeyer, J.) ("To show good cause, a movant must demonstrate that it
has been diligent, meaning that, despite its having exercised diligence, the applicable deadline
could not have been reasonably met.").
Good cause depends on the diligence of the moving party in seeking to meet the
scheduling order. Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.2003). The Oxford
Dictionary defines "diligence" as "careful and persistent work or effort." See "diligence" at
http://www.oxforddictionaries.com/us/definition/american english/diligence (last accessed on
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June 18, 2016). "Good cause" and diligence were not shown when a party raised the prospect of
a deposition nine days prior to the discovery deadline. Carlson v. Geneva City School Dist, 277
F.R.D. 90 (W.D.N.Y. 2011); compare Reese v. Virginia Intern. Terminals, Inc., 286 F.R.D. 282
(E.D. Va. 2012) (depositions noticed very early in discovery period and movant engaged in
continuing meet-and-confer dialogue with defendants throughout five month discovery period);
lantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) (correspondence
indicated that the plaintiffs had tried on numerous occasions to schedule the depositions and to
extend the discovery schedule but that the defendants had either refused or failed to respond,
good cause found).
ARGUMENT
I. PLAINTIFF'S LACK OF DILIGENCE
Plaintiff has demonstrated an extreme lack of diligence in securing the remaining six
depositions that she seeks.
Plaintiff's Motion failed to mention any desire to take the deposition of
No Notice of Deposition has been served and no scheduling of his deposition has
commenced. Indeed, first appeared on Plaintiff's Third Revised Rule 26
Disclosures two weeks ago on June 1. Then, last week, in her Reply In Support of Motion to
Exceed Ten Depositions filed on June 13 ("Reply"), Plaintiff averred that
deposition is "necessary" because Ms. Maxwell "
" Reply at 3. This is utter
nonsense and nothing more than a transparent ploy by Plaintiff to increase media exposure for
her sensational stories through deposition side-show. This witness has nothing relevant to add
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to this case and Plaintiff has made no effort, much less one in good to timely secure his
testimony.
Plaintiff admits she has "made not allegations of illegal actions by " Id. But
Plaintiff has asserted that she
In one article. authored by Sharon Churcher. Plaintiff related:
See Sharon Churcher,
Similarly, in Plaintiff's
she writes:
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Menninger Decl. Ex. B at 110.
Each and every part of Plaintiff's claims regarding has conclusively
been proven false.
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The only purpose for seeking this deposition is for the calculated media
strategy that Plaintiff and her publicity-seeking attorneys have devised.
Accordingly, Plaintiff's leave to modify the scheduling order to permit his deposition
should be denied.
B. Ross Gow
As the Court likely recalls, Ross Gow actually issued the statement pertinent to this
defamation suit. Plaintiff has known about Ross Gow and his role in this lawsuit since the
outset: She referenced him repeatedly by name in the Complaint filed on September 21, 2015.
See, e.g., Complaint paragraph 29 ("As part of Maxwell's campaign, she directed her agent, Ross
Gow, to attack honesty and truthfulness and to accuse of lying."). Plaintiff also
has been well aware throughout that Mr. Gow resides in London. See, e.g., Plaintiff's Motion to
Compel Improper Privileges, at 8 (Doc. #33).
After filing that Complaint in September and litigating the Motion to Compel based on
privileges related to Mr. Gow in March, Plaintiff took exactly zero steps to depose Mr. Gow until
she filed this Motion. Now, nine months after filing her Complaint, Plaintiff contends there is
"not sufficient time" for her to "go through the Hague Convention for service on Mr. Gow" so as
to "complete this process before the June 30, 2016 deadline." Mot. at 4. Indeed, Plaintiff only
initiated that process three days ago, on Friday, June 17, two weeks shy of the discovery cut-off.
Plaintiff, once again, tries to blame Ms. Maxwell for her own lack of diligence by
misrepresenting to this Court that "Ms. asked that Defendant produce her agent, Mr.
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Gow, for a deposition but Defendant has refused...despite acknowledging that Defendant plans
to call Mr. Gow for testimony at trial." Id. In truth, Plaintiff sent a letter on May 23 which read
in its entirety, "This letter is to seek your agreement to produce Ross Gow for deposition, as the
agent for your client, Ms. Maxwell. We can work with Mr. Gow's schedule to minimize
inconvenience. Please advise by Wednesday, May 25, 2016, whether you will produce Mr. Gow
or whether we will need to seek relief from the Court with respect to his deposition." Menninger
Decl. Ex. E. That was the first communication regarding any deposition of Mr. Gow. Two days
later, defense counsel requested any "legal authority that would allow Ms. Maxwell to `produce'
Ross Gow for a deposition" or "any rule or case that would either enable or require her to do so."
Id. Plaintiff never responded. She also has not explained when or how Ms. Maxwell
"acknowledged" her "plans to call Mr. Gow for testimony at trial," nor why that is relevant to
whether Plaintiff has demonstrated good cause for her own failure to take steps to depose a
foreign witness deposition until June 17, for a witness she was aware before even filing the
Complaint.
During the hearing on March 24, this Court stated that it would consider expect to see
"good showing" of efforts to comply with the schedule and "an inability because of Hague
Convention problems," before it would consider changing the Scheduling Order. Ms. Maxwell
submits that waiting until June 17, two weeks before the end of discovery, to even begin the
Hague Convention process falls far short of any such good showing and the request for
leave to take Mr. Gow's testimony beyond July 1 should be denied.
C. Jean Luc Brunel
With regard to Jean Luc Brunel, Plaintiff simply asserts that he was "subpoenaed," and
"set for mid-June deposition[]," but "through counsel" has "requested we change the dates of
[his] deposition." Mot. at 4. That is her entire argument. She omits key facts that would,
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instead, demonstrate her lack of diligence in securing Mr. Brunel's testimony and also show that
she has waived any right to seek an out-of-time deposition.
Plaintiff first issued a Notice of a Rule 45 subpoena for documents from Mr. Brunel on
February 16, at an address "c/o" attorney, Joe Titone. No documents were ever produced
pursuant to that subpoena. Menninger Decl., Ex. F. Then, on May 23, 2016, Plaintiff issued a
new "Notice of Subpoena Duces Tecum," attached to which was actually a subpoena for
deposition testimony to occur on June 8, at 9:00 a.m. in New York. Id. Again, the subpoena was
addressed "c/o" attorney Robert Hantman. Then, on June 2, Plaintiff's counsel sent an email that
they had received "an email yesterday from Mr. Brunel's attorney saying he needs to reschedule.
I believe he is trying to get us new dates today or tomorrow." Id. The "scheduled date" of June
8 came and went without any indication of any new dates provided by Mr. Brunel's counsel.
The following week, Plaintiff's counsel stated in a phone conversation that Mr. Brunel's counsel
said his client had gone to France and it was unclear when he would be returning to the United
States.
Following the filing of the instant motion, counsel for Ms. Maxwell requested copies of
the certificates of service for all of Plaintiff's Rule 45 subpoenas in this case. Plaintiff's counsel
provided certificates on June 14. Notably absent was any certificate of service for Mr. Brunel.
Thus, either Mr. Brunel was never served, or he was served and Plaintiff unilaterally extended
his compliance date to an unscheduled time in the future. Either way, the time to complain about
a witness's non-compliance is at or near the time it occurs. Failure to timely complain regarding
non-compliance with a subpoena constitutes a waiver. In any event, whether served or not, Mr.
Brunel apparently promised to provide new dates before his deposition date came and went, did
not do so, has left the country and not indicated a present intention to return. Given Plaintiff's
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role in failing to compel him to attend a deposition, no "good cause" has been demonstrated to
take the deposition of Mr. Brunel after July I.
D. Jeffrey Epstein
As with the other witnesses, Plaintiff has failed to demonstrate "good cause" for seeking
to depose Jeffrey Epstein out of time. Plaintiff claims that she was unable to secure service on
Mr. Epstein until May 27, 2016, because his counsel "refused to accept service" until she filed
her motion for alternative service. The documents reflect the opposite: Mr. Epstein's attorney
agreed to accept service on April 11, 2016, and it was only on May 27, 2016, that Plaintiff
agreed. See Poe Declaration in Support of Motion to Quash Epstein Deposition, Ex. 3 (Doc. #
223-3). Plaintiff fails to explain her strategic decision, or negligence, in failing to respond for
over six weeks to Mr. Weinberg's email offering to accept service. Indeed, in another failure of
candor, Plaintiff's counsel also neglected to tell this Court about the email offer from Mr.
Weinberg either in the instant motion or in her motion to serve Mr. Epstein by alternate means.
Mot. at 2; Doc. # 160.8
Plaintiff apparently now claims that she never received that email from Martin Weinberg.
All of the preceding communications, however, indicate that Mr. Weinberg promptly responded
to Ms. McCawley's inquiries. See, e.g., Poe Declaration, Ex. 2 (email of April 6 from Weinberg
to McCawley (offering to let her know regarding acceptance of service on April 7)); email of
McCawley in response ("That works fine — thank you.")). Thus, if Ms. McCawley received no
follow up response from Mr. Weinberg, as she now claims, when he had been corresponding
8 In another glaring omission from Plaintiff's submissions to the Court on the topic of the service of Mr. Epstein,
Plaintiff's own counsel have strenuously litigated in other cases that Mr. Epstein is a resident of Florida, over his
objection that he is a resident of the U.S. Virgin Islands. See. e.g.. Menninger Decl., Ex. G (Motion to Quash
Subpoena on Jeffrey Epstein, Broward County, Florida, 15.000072). Yet, all ofPlaintiff's purported attempts at
service on Mr. Epstein were in New York.
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with her previously theretofore, she had a duty to follow up on that inquiry. A failure to do so is
plain vanilla neglect.
Even after agreeing to the terms proposed by Epstein's counsel on May 27, that is,
location of the deposition in the U.S. Virgin Islands and subject to right to oppose the subpoena,
Plaintiff then waited an additional three weeks until June 12, to even attempt to schedule
Epstein's deposition. Epstein Memorandum in Support of Mot. to Quash at 2 (Doc. # 222).
Agreeing to take a deposition in the Virgin Islands on May 27, then waiting until June 12, to try
to schedule a date for that deposition, when numerous other depositions had already been
scheduled in New York, Florida, and California for the balance of June, is either neglect or
strategic posturing by Plaintiff. Either way, it does not amount to "good cause" for such a
deposition to take place beyond July 1.
Finally, Plaintiff suggests, without factual foundation, that Ms. Maxwell played some
role in Mr. Epstein's counsel's refusal to accept service. See Mot. at 2 ("forced to personally
serve the Defendant's former boyfriend, employer, and co-conspirator"). As the timeline and
documents now reveal, however, Plaintiff failed to provide notice to Ms. Maxwell that she was
attempting to serve a Rule 45 subpoena on Mr. Epstein for more than 7 weeks! Id. Plaintiff
states that she began her service attempts on March 7, 2016. The very first Notice of Subpoena
and Deposition served on Ms. Maxwell, however, is dated April 27. Menninger Decl. Ex. H.
Thus, between March 7 and April 27, Ms. McCawley engaged in repeated attempts to serve Mr.
Epstein a Rule 45 subpoena (including a request for documents) without providing the proper
notice to the parties pursuant to Rule 45(a)(4) ("If the subpoena commands the production of
documents... , then before it is served on the person to whom it is directed, a notice and a copy
of the subpoena must be served on each party.") (emphasis added). As detailed below, this was
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not an isolated incident and merits sanction. In any event, it is difficult to imagine how it is Ms.
Maxwell's fault that Plaintiff could not serve Mr. Epstein when she was never put on notice of
any attempt to do so.
Given that Plaintiff knew as of April 11 the conditions pursuant to which Mr. Epstein
would accept service through counsel, yet waited until May 27 to agree to those terms, and then
waited another nearly three weeks to attempt to schedule Mr. Epstein's deposition on a date
available for his counsel and Ms. Maxwell's counsel, Plaintiff has fallen far short of
demonstrating "good cause" for taking Mr. Epstein's deposition beyond the end of the fact
discovery cut-off.
E. and
Finally, Plaintiff seeks the depositions of two other witnesses — and
-- who, she complains, "despite being represented by counsel, have refused to accept
service."9 Mot. at 3. Plaintiff claims that her process servers tried for three weeks (from April
25 until May 18) to personally serve Ms. and Ms. with subpoenas duces
teem. She did not explain, however, why she waited until April to try to serve these two
witnesses, about whom her attorneys have known since 2008. She also has not explained to this
Court any legally relevant or admissible evidence that either possess, nor how she intends to
introduce that evidence in a trial of this defamation claim between Plaintiff and Ms. Maxwell.
Apart from these witnesses stated intent to take the Fifth Amendment which renders their
testimony inadmissible, as discussed more fully below, neither witness has any relevant
testimony to offer because Plaintiff never made a public statement about either one of them.
9 Actually, in Plaintiff's Motion for Leave to Serve Three Deposition Subpoenas by Means Other than Personal
Service, Plaintiff details that Ms. counsel stated he no longer represents her. (Doc. #161 at 5)
("counsel for Ms. reached out to Ms. former counsel but he indicated that he could not accept
service as he no longer represents her"). It is unclear then, why Plaintiff persists in representing to this Court that
Ms. instructed her counsel not to accept service, or why Plaintiff seeks to serve Ms.
through her former counsel.
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Plaintiff did not include either woman in her Sharon Churcher-paid interviews, nor were they
mentioned in Plaintiff's Joinder Motion of December 30, 2014. Thus, neither Plaintiff's
allegations about Ms. Maxwell, nor Ms. Maxwell's denial of the same based on her personal
knowledge, are implicated by anything that Ms. or Ms. may have done with
anyone else. Their testimony cannot corroborate Plaintiff's account, nor can it shed light on
whether Ms. Maxwell's denial of that account is accurate, because Plaintiff's account did not
mention either of them.
Finally as to these witnesses, Plaintiff once again documented her own failure to comply
with Rule 45 in regard to attempts to serve these two witnesses. Six of the service attempts
occurred on April 25 and April 26. Yet Plaintiff only provided Notice to Ms. Maxwell of her
intent to serve the subpoenas on April 27. Menninger Decl. Ex. I.
II. FIFTH AMENDMENT BY EPSTEIN, OR NOT
ADMISSIBLE IN THIS CASE AGAINST MS. MAXWELL
The depositions of Epstein, and do not constitute "good cause" to
modify the scheduling order in this case for the additional reason that they all have represented to
Plaintiff their intention to assert the Fifth Amendment protection as to all questions and such
assertion will not be admissible evidence in this trial. Indeed, counsel for Mr. Epstein recently
filed a Motion to Quash his subpoena based on the same legal principle that his deposition is
unduly burdensome in light of the fact that it will not lead to admissible evidence. (Doc. # 221,
222, 223) The Court should consider this additional factor to decline a finding of "good cause"
for extending the discovery deadline.
Plaintiff wrongfully contends that any assertion of the Fifth Amendment during the
depositions of Epstein, and will be admissible in the trial of this defamation
matter (where none of those individuals are parties) based on an "adverse inference" that can be
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drawn against Ms. Maxwell. See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997). In
fact, none of the LiButti factors support her argument. While noting that Ms. Maxwell
anticipates more extensive briefing on this issue in support of Mr. Epstein's Motion to Quash, a
few facts bear mentioning here:
• Ms. Maxwell was the employee of Mr. Epstein --in the 1990s -- not the other way
around. Mr. Epstein has never worked for or been in control of Ms. Maxwell.
• Ms. Maxwell and Mr. Epstein have had no financial, professional or employment
relationship in more than a decade, many years before 2015 when the purportedly
defamatory statement was published.
• Maxwell has not vested any control in Mr. Epstein "in regard to key facts and subject
matter of litigation." As the Court is well aware from review of emails submitted in
camera (and later produced to Plaintiff):
• Epstein is not "pragmatically a non-captioned party in interest" in this litigation nor has
he "played controlling role in respect to its underlying aspects." Epstein is not, despie
Plaintiff's suggestion, paying Ms. Maxwell's legal fees. Plaintiff sought by way of
discovery any "contracts," "indemnification agreements," "employment agreements"
between Ms. Maxwell and Epstein or any entity associated with Epstein, from 1999 to the
present. Ms. Maxwell responded under oath that there are no such documents. Epstein
played no role in the issuance of the January 2 statement, nor has he issued any public
statement regarding Plaintiff. Indeed, Plaintiff and Epstein fully resolved any claims
against one another by way of a confidential settlement in 2009, another action in which
Ms. Maxwell had no role.
• Assertion of the privilege by Epstein does not advance any interest of Ms. Maxwell's.
Quite to the contrary, Epstein would be a key witness in her support, exonerating her
from Plaintiff's allegations regarding sex abuse, sexual trafficking and acting as his
"madam" to the stars. As proof, one need look no further than
16
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• Likewise,
Id.
I7
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These correspondences demonstrate that Ms. Maxwell has no control over Mr. Epstein in
regards to the alleged defamation statement, he had no role in issuance of the statement, he has
no benefit in the outcome of this litigation and he played no controlling role in its respect.
Similarly, there is not any evidence at all to support an adverse inference to be drawn
from either nor assertion of the Fifth. Ms. Maxwell hardly
knows either woman, never worked with them, they have had nothing to do with this litigation
and do not stand to benefit from it, especially as Plaintiff has never made any allegations about
her involvement with either of the two of them, they are simply irrelevant to this defamation
action.
III. PLAINTIFF'S BAD DISCOVERY TACTICS SHOULD NOT BE
REWARDED WITH EXTRA TIME
1. Plaintiff's Rule 26 Revolving Door
Plaintiff's army of lawyers (who collectively have been litigating matters related to
Jeffrey Epstein since 2008) served their Rule 26 initial disclosures on November 11, 2015.
Those disclosures listed 94 individual witnesses with knowledge regarding the facts of this case,
yet provided addresses (only of their counsel) as to just two, Jeffrey Epstein and Alan
Dershowitz. Plaintiff then also listed categories of witnesses such as "all other then-minor girls,
whose identities Plaintiff will attempt to determine" and "all pilots, chauffeurs, chefs, and other
employees of Ms. Maxwell or Jeffrey Epstein. Plaintiff claimed as to her Rule 26 disclosures
that "only a fraction of those individuals will actually be witnesses in this case, and as discovery
progresses, the list will be further narrowed." (Doc. #20 at 17) The opposite has happened.
Between November 11 and March 11, Plaintiff trimmed her Rule 26 list of persons with
knowledge from 94 to 69, inexplicably removing 34 names, but adding 12 more. She removed,
18
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for example, witnesses and but added Senators George Mitchell,
Bill Richardson and Les Wexner.
Then between March I I and June 1, a few weeks before the discovery cut-off, Plaintiff
added 20 more witnesses, including
As to several of these newly added witnesses,
, Plaintiff promptly scheduled their depositions in June, despite having just
disclosed their names on June 1.
Menninger Decl. Ex. K.
This is precisely the type of hide-and-seek that Rule 26 is designed to prevent. While
Ms. Maxwell anticipates filing in the near future a separate motion concerning Plaintiff's latest
Rule 26 violations and seeking sanctions for the same, this Court can and should consider this
behavior in determining whether Plaintiff has "good cause" to extend the discovery cut-off so
that she can continue her gamesmanship.
2. Plaintiff's Recurrent Rule 45 Violations
As this Court has previously held:
Rule 45(b)(1) requires a party issuing a subpoena for the production of documents
to a nonparty to "provide prior notice to all parties to the litigation," which has
been interpreted to "require that notice be given prior to the issuance of the
subpoena, not prior to its return date." Murphy v. Board of Educ., 196 F.R.D. 220,
222 (W.D.N.Y.2000). At least one court in this circuit has held that notice
provided on the same day that the subpoenas have been served constitutes
inadequate notice under Rule 45. See, e.g., Fox Industries, Inc. v. Gurovich, No.
03-CV-5166, 2006 WL 2882580, *11 (E.D.N.Y. Oct. 6, 2006). ... The
1° Rather than list his client's address in the custody of the U.S. Marshal's Office, Mr. Edwards said her address is
"do" himself.
19
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requirement that prior notice "must be given has important underpinnings of
fairness and efficiency." Cootes Drive LLC v. Internet Law Library, Inc., No. 01-
CV-9877, 2002 WL 424647, *2 (S.D.N.Y. Mar. 19, 2002). Plaintiff fails to
provide an adequate explanation or argument for how a same-day notification
satisfies Rule 45's requirements. See, e.g., id. ("[C]ounsel for the [offending party]
offered no explanation or excuse for their failure to comply with the rule's
strictures. They did not attempt to defend the timeliness of their notice. The
[offending party's] admitted violation ... cannot be countenanced.").
Usov v. Lazar, 13-cv-818 (RWS), 2014 WL 4354691, at *15 (S.D.N.Y. Sept. 2, 2014) (granting
motion to quash the subpoenas where notice given on the same day and served beyond 100 mile
limitation of Rule 45). In that case, Plaintiff had provided same day notice of the issuance of a
subpoena. Here, we have repeated attempts to serve a subpoena over the course of days before
any notice was given to Ms. Maxwell. As described previously, Plaintiff has amply documented
her own violations of the Rule by detailing her attempts to serve subpoenas duces tecum before
ever providing notice to Ms. Maxwell with regards to witnesses Epstein, and
Likewise, with respect to witness, aintiff served the subpoena prior to
providing notice. See Menninger Decl. Ex. L. Served subpoenas before providing Notice under
Rule 45. Accordingly, Plaintiff moves to quash the subpoenas on Epstein, and
as violations of Rule 45's notice provision. Ms. Maxwell further requests sanctions
pursuant to Rule 37 for these documented violations.
With respect to Ms. ■, who was deposed already earlier today, Ms. Maxwell believes
that she did not offer any admissible testimony at her deposition. If Plaintiff's seek to introduce
her testimony, the defense reserves the right to exclude such testimony both on evidentiary
grounds as well as in violation of Rule 45's notice provision."
IV. MS. MAXWELL'S GOOD EFFORTS TO CONDUCT DISCOVERY
Counsel for Ms. Maxwell only learned of the Rule 45 violation this past weekend after reviewing certificates of
service rovided by Plaintiff's counsel last week, without sufficient time to file a motion to quash the subpoena on
Ms.
20
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As already documented in previous pleadings, Ms. Maxwell's counsel has engaged in
significant and repeated efforts to conduct discovery in this case in a professional, civil manner,
especially as it relates to the depositions of non-parties. On February 25, 2016, counsel for Ms.
Maxwell requested that the lawyers confer by telephone to arrange a schedule for the non-party
depositions to occur in various states and countries.!'- Plaintiff ignored that request, and requests
of the same ilk made on at least 6 different occasions in March and April. It was only on two
and 'A months later, on May 5, 2016, when Plaintiff's counsel finally responded with "as is
becoming clear, both sides are going to be needing to be coordinating a number of
depositions.s13 She then proposed a calendar which scheduled 13 additional depositions for
Plaintiff and only 2 days (actually 12/ days) for defendant to depose her remaining witnesses. 14
Defendant provided a calendar which allowed for both sides to take remaining depositions, but
Plaintiff ignored it and continued to schedule depositions on dates for witnesses without
consulting defense counsel for their availability first. Menninger Decl., Ex. M.
Because of the breakdown in communications, defense counsel was left with little choice
but to (a) show up at each of Plaintiffs noticed depositions, in Florida and New York, and (b)
issue subpoenas for witness depositions on other dates in June. For example, Plaintiff issued a
12
McCawley Decl. in Support of Request to Exceed Ten Deposition Limit, Exhibit I (Doc. # 173.1) at 28 (Letter of
Menninger to McCawley (Feb. 25, 2015) ("I would suggest that rather than repeated entails on the topic of
scheduling the various depositions in this case, or the unilateral issuance of deposition notices and subpoenas, you
and I have a phone conference wherein we discuss which depositions are going to be taken, where, and a plan for
doing them in an orderly fashion that minimizes travel and inconvenience for counsel and the witnesses. As you are
well aware from your own practice of law, attorneys have other clients, other court dates and other commitments to
work around. The FRCP and Local Rules contemplate courtesy and cooperation among counsel in the scheduling
and timing of discovery processes. This rule makes even more sense in a case such as this spanning various parts of
the country where counsel must engage in lengthy travel and the attendant scheduling of flights, hotels and rental
cars.")).
13 Id. at 19.
10
Id. at 1.3.
21
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Notice of Deposition for Juan Alessi on May 31, 2016, without any conferral with counsel, in
Florida, fully aware that defense counsel would be traveling from Colorado. Defense counsel, in
fact, did have to travel on Memorial Day to Florida for the 9:00 a.m. May 31 deposition. Mr.
Alessi, however, did not appear on that date, believing that his deposition was for June 1, the
same day that his wife had been subpoenaed to appear and because he and his wife live an hour
away from Ft. Lauderdale. Thus, despite defense counsel's herculean efforts, no deposition
occurred on May 31. On June 1, Mr. Alessi appeared, but there was insufficient time to take his
wife's deposition, who presumably made the one hour drive for naught. Also, defense counsel
then had to travel to New York for the June 2 hearing and back to Florida for a deposition of
another witness, Mr. Rogers, that had been scheduled without input from defense counsel.
Counsel for Plaintiff makes much of her efforts to serve witnesses Epstein,
and =. She fails to advise the Court that Ms. Maxwell has been "forced" to expend great
time, money and resources to serve Plaintiff's own mother, father, formerfiancé andformer
boyfriend. As described before, the defense even re-scheduled the deposition of Pla
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
Plaintiff,
v.
15-cv-07433-RWS
GHISLAINE MAXWELL
Defendant.
X
DEFENDANT'S COMBINED MEMORANDUM OF LAW
IN OPPOSITION TO EXTENDING DEADLINE TO COMPLETE DEPOSITIONS AND
MOTION FOR SANCTIONS FOR VIOLATION OF RULE 45
Laura A. Menninger
Jeffrey S. Pagliuca
HADDON, MORGAN, AND FOREMAN. P.C.
East 10th Avenue
Denver, CO 80203
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Case 1:15-cv-07433-RWS Document 228 Filed 06/20/16 Page 2 of 29
TABLE OF CONTENTS
INTRODUCTION 1
BACKGROUND 3
LEGAL AUTHORITY 5
I. PLAINTIFF'S LACK OF DILIGENCE 6
6
B. Ross Gow 9
C. Jean Luc Brunel 10
D. Jeffrey Epstein 12
E. MI and 14
II. FIFTH AMENDMENT BY EPSTEIN, OR NOT ADMISSIBLE
IN THIS CASE AGAINST MS. MAXWELL 15
III. PLAINTIFF'S BAD DISCOVERY TACTICS SHOULD NOT BE REWARDED
WITH EXTRA TIME 18
1. Plaintiff's Rule 26 Revolving Door 18
2. Plaintiff's Recurrent Rule 45 Violations 19
IV. MS. MAXWELL'S GOOD EFFORTS TO CONDUCT DISCOVERY 20
V. GOOD CAUSE EXISTS TO TAKE RE-DEPOSE PLAINTIFF AND TO DEPOSE
SHARON CHURCHER EXISTS 23
VI. ALTERNATIVELY, ALL OTHER DEADLINES NEED TO BE EXTENDED 24
CERTIFICATE OF SERVICE 26
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TABLE OF AUTHORITIES
Carlson v. Geneva City School Dist., 277 F.R.D. 90 (W.D.N.Y. 2011); compare Reese v.
Virginia Intern. Terminals, Inc., 286 F.R.D. 282 (ED. Va. 2012) 6
Fox Industries, Inc. v. Gurovich, No. 03-CV-5166, 2006 WL 2882580, *11 (E.D.N.Y. Oct. 6,
2006) 19
Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.2003). 5
Iantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) 6
LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997) 16
Murphy v. Board ofEduc., 196 F.R.D. 220, 222 (W.D.N.Y.2000) 19
Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y.
2012) 5
Sokol Holdings, Inc. v. BMD Munai, Inc., 05 Civ. 3749 (KMW)(DF), 2009 WL 2524611 at *7
(S.D.N.Y. Aug. 14, 2009) 5
Usov v. Lazar, 13-cv-818 (RWS), 2014 WL 4354691, at *15 (S.D.N.Y. Sept. 2, 2014) 20
li
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Defendant Ghislaine Maxwell ("Ms. Maxwell") files this Combined Response
("Response") in Opposition to Plaintiff's Motion to Extend Deadline to Complete Depositions
("Motion") and Motion for Sanctions For Violation of Rule 45, and states as follows:
INTRODUCTION
Apparently, Plaintiff seeks to take six (6) depositions beyond the scheduling order
deadline of July I, yet has failed to demonstrate good cause or diligence as to any.' The
witnesses include (1) , a witness that Plaintiff initiated informal attempts to
depose on June 9, and (2) Ross Gow, who Plaintiff began steps to depose under the Hague
Convention in London last Friday, June 17. Plaintiff also seeks to untimely depose (3) Jean Luc
Brunel, a witness she had noticed for a mid-June deposition, who apparently did not appear on
that date with agreement and consent of Plaintiff's counsel.
The remaining three witnesses Plaintiff seeks to untimely depose are ones who repeatedly
have expressed their intention to take the Fifth Amendment as to all questions posed. Counsel
for (4) Jeffrey Epstein, offered to accept service on or about April 11 but Plaintiff ignored that
offer for more than six weeks. Plaintiff only began on June 12 any attempt to schedule that
deposition in the Virgin Islands. Last week, Mr. Epstein's counsel filed a Motion to Quash his
deposition subpoena. The final untimely depositions sought by Plaintiff are for witnesses
(5) and (6) about whom Plaintiff has made no public claims and
thus, have no testimony relevant to this defamation action concerning whether Plaintiff's public
In her Amended Corrected Reply In Support of Motion to Exceed Ten Depositions, Plaintiff represents that she
onl seeks to take three de ositions beyond the limit of ten and that she no longer seeks depositions of witnesses
JoJo Fontanilla, and . (Doc. #224 at 2 n.4) She does not state her
intentions with respect to other witnesses, like Alessi, that she noticed but never deposed. However,
comparing that Reply with her other motions, counsel has deduced the remaining witnesses from whom Plaintiff
apparently seeks to secure deposition testimony in July. Plaintiff has already taken 6 depositions and another
scheduled tomorrow. Thus by the close of discovery she will have taken 7 of her allotted 10 depositions.
1
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allegations about Ghislaine Maxwell are — or rather are not — true. The attempted service of
subpoenas on Epstein, and all violated Rule 45(a)(4) and should be
sanctioned by this Court.
As to all of these witnesses, Plaintiff has fallen far short of the "good cause" required by
Rule 16(b)(4) to modify the Scheduling Order. In fact, for the most part, her failures to actively
pursue depositions with these witnesses qualifies as in-excusable neglect: She frittered away
seven of the eight months of the discovery period and now has placed Ms. Maxwell, this Court,
and the witnesses in the untenable position of trying to accommodate her last-minute scramble.
In the absence of any acceptable excuses, and for the limited evidentiary value that most of the
requested witnesses can provide, this Court should deny the request for the extra time to take
these six depositions.
The only witnesses for whom depositions should be permitted following the discovery
cut-off are: (1) Ms. Sharon Churcher, Plaintiff's friend, advocate and former journalist with the
Daily Mail, who filed a Motion to Quash her subpoena on the day before her scheduled
deposition? and (2) Plaintiff, who refused to answer questions at her deposition concerning
highly relevant, non-privileged information.;
Alternatively, if the Court is to grant additional time for Plaintiff to take depositions, Ms.
Maxwell will be unduly prejudiced without sufficient additional time to (a) secure any witnesses
to rebut testimony gleaned from these witnesses, (b) conduct discovery of Plaintiff's retained
experts, (c) submit a summary judgment motion which includes facts learned from these late
depositions, and (d) prepare for trial. Thus, if the Court grants Plaintiff's motion, the remaining
deadlines in the Scheduling Order ought to be extended accordingly.
2
Ms. Churcher's motion to quash will be heard this Thursday by the Court.
Ms. Maxwell is filing simultaneously with this Response a Motion to Re Open Plaintiff's Deposition.
2
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BACKGROUND
To divert attention away from her own lack of diligence, Plaintiff characteristically
devotes much of her Motion blaming Ms. Maxwell and her counsel for her own problems with
depositions. Not only is Plaintiff's account factually inaccurate, none of it matters to whether
she could timely complete the six depositions at issue.
For example, the scheduling of Ms. Maxwell's deposition (which depended, among other
things, on an historic snowstorm, a disputed protective order, Plaintiff's failure to timely produce
documents, and counsel's conflicting calendars, all of which have been amply documented with
this Court)' does not inform any analysis regarding Plaintiff's lack of diligence in pursuing
depositions of these six witnesses. See Rule 26d)(3) ("Unless the parties stipulate or the court
orders otherwise for the parties' and witnesses' convenience and in the interests of justice: (A)
methods of discovery may be used in any sequence, and (B) discovery by one party does not
require any other party to delay its discovery."). Likewise, receipt of Ms. Maxwell's Rule 26
disclosures in February also had nothing to do with these witnesses. Id. Notably, each of the
witnesses who Plaintiff now seeks to depose were known to her from the outset; all but
were included in her initial Rule 26 disclosures served on November 11, 2015 and two of
the six were specifically mentioned in Plaintiff's Complaint.
Finally, the fact that witness Rinaldo Rizzo had a deposition re-scheduled from April
until June does not have any bearing on the issue presented by this motion. Mr. Rizzo was
deposed on June 14 and he has nothing to do with the remaining depositions. Mr. Rizzo, in fact,
was practically gleeful to be a witness:
Doc. #62 & Tr. of Hearing of Mar. 24 at 4.
3
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. Plaintiff's claim that Mr.
Rizzo is an "example of delay that has harmed [her] ability to obtain all depositions in a timely
manner" (Mot. at 3) is specious.
Contrary to Plaintiff's assertion, discovery began in this case on October 23, 2015,
following the parties' Rule 26(0 conferral. See Fed.R.Civ.P. 26(d)(1). At the Rule 16(b)
scheduling conference on October 28, 2015, this Court directed the parties to complete all fact
discovery by July 1, 2016. (Doc. #13) On November 30, 2015, contemporaneous with the filing
of her Rule 12(b) Motion to Dismiss, Ms. Maxwell also requested of this Court a stay of
discovery pursuant to Rule 26(c). (Doc. #17) That motion was denied on January 20, 2016, with
an additional two-week period granted to respond to Plaintiff's First Request for Production of
Documents.6 The discovery was thus never stayed.
Plaintiff erroneously asserts that that discovery "did not commence in this matter until"
February 8. What she means is that she neglected to seek any non-witness depositions until then;
nothing in the Rules of Civil Procedure, this Court's Orders, or the law prevented Plaintiff from
doing so at any point after October 23, 2015.7 Plaintiff has had over eight months to subpoena
5
See, Menninger Declaration, Ex. A (Rizzo deposition transcript excerpts). Of course, Plaintiff's counsel has
engaged in their own last-minute "unavailability" for a deposition scheduled by Ms. Maxwell, as to Plaintiff's
former fiancé, a witness who is hostile, required numerous service attempts at great cost and inconvenience, and
who then (because of Plaintiff's last minute unavailability) had to be re-served by a process server who swam
through a swamp to get to his home, at additional cost and inconvenience.
6
By agreement of the parties, the time to respond was extended an additional six days because defense counsel was
in a jury trial at the time the Court's Order was handed down.
7
See, e.g., MN Opp'n to Mot. to Stay (Doc. #20) at 17 n.8 ("As of the date of this filing, zero (0) disposition [sic]
notices have been propounded on the Defendant").
4
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witnesses, schedule depositions and conduct them. Instead, she waited until the last minute and
now complains of lack of time. Any lack of time is a product of her own bad ■ and negligent
litigation tactics and should not be sanctioned by this Court.
The failure to timely secure the depositions of the remaining six witnesses is through no
fault of Ms. Maxwell or her counsel. As to these witnesses, Ms. Maxwell and her counsel have
played no role in hindering Plaintiff's ability to depose the witnesses; in fact, as to four of the six
Plaintiff attempted to serve subpoenas on the witnesses before ever providing notice to the
defense, in clear violation of Rule 45(a)(4).
LEGAL AUTHORITY
Rule 16(b) permits modification of a scheduling order only upon a showing of "good
cause." To satisfy the good cause standard "the party must show that, despite its having
exercised diligence, the applicable deadline could not have been reasonably met." Sokol
Holdings, Inc. v. BMD Munai, Inc., 05 Civ. 3749 (KMW)(DF), 2009 WL 2524611 at *7
(S.D.N.Y. Aug. 14, 2009) (emphasis added) (citing Rent-A-Center Inc. v. 47 Mamaroneck Ave.
Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (McMahon, J.)); accord Parker v. Columbia
Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (" `[G]ood cause' depends on the diligence of
the moving party."); Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453,
457 (S.D.N.Y. 2012) (Engelmeyer, J.) ("To show good cause, a movant must demonstrate that it
has been diligent, meaning that, despite its having exercised diligence, the applicable deadline
could not have been reasonably met.").
Good cause depends on the diligence of the moving party in seeking to meet the
scheduling order. Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.2003). The Oxford
Dictionary defines "diligence" as "careful and persistent work or effort." See "diligence" at
http://www.oxforddictionaries.com/us/definition/american english/diligence (last accessed on
5
EFTA00619565
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June 18, 2016). "Good cause" and diligence were not shown when a party raised the prospect of
a deposition nine days prior to the discovery deadline. Carlson v. Geneva City School Dist, 277
F.R.D. 90 (W.D.N.Y. 2011); compare Reese v. Virginia Intern. Terminals, Inc., 286 F.R.D. 282
(E.D. Va. 2012) (depositions noticed very early in discovery period and movant engaged in
continuing meet-and-confer dialogue with defendants throughout five month discovery period);
lantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) (correspondence
indicated that the plaintiffs had tried on numerous occasions to schedule the depositions and to
extend the discovery schedule but that the defendants had either refused or failed to respond,
good cause found).
ARGUMENT
I. PLAINTIFF'S LACK OF DILIGENCE
Plaintiff has demonstrated an extreme lack of diligence in securing the remaining six
depositions that she seeks.
Plaintiff's Motion failed to mention any desire to take the deposition of
No Notice of Deposition has been served and no scheduling of his deposition has
commenced. Indeed, first appeared on Plaintiff's Third Revised Rule 26
Disclosures two weeks ago on June 1. Then, last week, in her Reply In Support of Motion to
Exceed Ten Depositions filed on June 13 ("Reply"), Plaintiff averred that
deposition is "necessary" because Ms. Maxwell "
" Reply at 3. This is utter
nonsense and nothing more than a transparent ploy by Plaintiff to increase media exposure for
her sensational stories through deposition side-show. This witness has nothing relevant to add
6
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to this case and Plaintiff has made no effort, much less one in good to timely secure his
testimony.
Plaintiff admits she has "made not allegations of illegal actions by " Id. But
Plaintiff has asserted that she
In one article. authored by Sharon Churcher. Plaintiff related:
See Sharon Churcher,
Similarly, in Plaintiff's
she writes:
7
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Menninger Decl. Ex. B at 110.
Each and every part of Plaintiff's claims regarding has conclusively
been proven false.
8
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The only purpose for seeking this deposition is for the calculated media
strategy that Plaintiff and her publicity-seeking attorneys have devised.
Accordingly, Plaintiff's leave to modify the scheduling order to permit his deposition
should be denied.
B. Ross Gow
As the Court likely recalls, Ross Gow actually issued the statement pertinent to this
defamation suit. Plaintiff has known about Ross Gow and his role in this lawsuit since the
outset: She referenced him repeatedly by name in the Complaint filed on September 21, 2015.
See, e.g., Complaint paragraph 29 ("As part of Maxwell's campaign, she directed her agent, Ross
Gow, to attack honesty and truthfulness and to accuse of lying."). Plaintiff also
has been well aware throughout that Mr. Gow resides in London. See, e.g., Plaintiff's Motion to
Compel Improper Privileges, at 8 (Doc. #33).
After filing that Complaint in September and litigating the Motion to Compel based on
privileges related to Mr. Gow in March, Plaintiff took exactly zero steps to depose Mr. Gow until
she filed this Motion. Now, nine months after filing her Complaint, Plaintiff contends there is
"not sufficient time" for her to "go through the Hague Convention for service on Mr. Gow" so as
to "complete this process before the June 30, 2016 deadline." Mot. at 4. Indeed, Plaintiff only
initiated that process three days ago, on Friday, June 17, two weeks shy of the discovery cut-off.
Plaintiff, once again, tries to blame Ms. Maxwell for her own lack of diligence by
misrepresenting to this Court that "Ms. asked that Defendant produce her agent, Mr.
9
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Gow, for a deposition but Defendant has refused...despite acknowledging that Defendant plans
to call Mr. Gow for testimony at trial." Id. In truth, Plaintiff sent a letter on May 23 which read
in its entirety, "This letter is to seek your agreement to produce Ross Gow for deposition, as the
agent for your client, Ms. Maxwell. We can work with Mr. Gow's schedule to minimize
inconvenience. Please advise by Wednesday, May 25, 2016, whether you will produce Mr. Gow
or whether we will need to seek relief from the Court with respect to his deposition." Menninger
Decl. Ex. E. That was the first communication regarding any deposition of Mr. Gow. Two days
later, defense counsel requested any "legal authority that would allow Ms. Maxwell to `produce'
Ross Gow for a deposition" or "any rule or case that would either enable or require her to do so."
Id. Plaintiff never responded. She also has not explained when or how Ms. Maxwell
"acknowledged" her "plans to call Mr. Gow for testimony at trial," nor why that is relevant to
whether Plaintiff has demonstrated good cause for her own failure to take steps to depose a
foreign witness deposition until June 17, for a witness she was aware before even filing the
Complaint.
During the hearing on March 24, this Court stated that it would consider expect to see
"good showing" of efforts to comply with the schedule and "an inability because of Hague
Convention problems," before it would consider changing the Scheduling Order. Ms. Maxwell
submits that waiting until June 17, two weeks before the end of discovery, to even begin the
Hague Convention process falls far short of any such good showing and the request for
leave to take Mr. Gow's testimony beyond July 1 should be denied.
C. Jean Luc Brunel
With regard to Jean Luc Brunel, Plaintiff simply asserts that he was "subpoenaed," and
"set for mid-June deposition[]," but "through counsel" has "requested we change the dates of
[his] deposition." Mot. at 4. That is her entire argument. She omits key facts that would,
10
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instead, demonstrate her lack of diligence in securing Mr. Brunel's testimony and also show that
she has waived any right to seek an out-of-time deposition.
Plaintiff first issued a Notice of a Rule 45 subpoena for documents from Mr. Brunel on
February 16, at an address "c/o" attorney, Joe Titone. No documents were ever produced
pursuant to that subpoena. Menninger Decl., Ex. F. Then, on May 23, 2016, Plaintiff issued a
new "Notice of Subpoena Duces Tecum," attached to which was actually a subpoena for
deposition testimony to occur on June 8, at 9:00 a.m. in New York. Id. Again, the subpoena was
addressed "c/o" attorney Robert Hantman. Then, on June 2, Plaintiff's counsel sent an email that
they had received "an email yesterday from Mr. Brunel's attorney saying he needs to reschedule.
I believe he is trying to get us new dates today or tomorrow." Id. The "scheduled date" of June
8 came and went without any indication of any new dates provided by Mr. Brunel's counsel.
The following week, Plaintiff's counsel stated in a phone conversation that Mr. Brunel's counsel
said his client had gone to France and it was unclear when he would be returning to the United
States.
Following the filing of the instant motion, counsel for Ms. Maxwell requested copies of
the certificates of service for all of Plaintiff's Rule 45 subpoenas in this case. Plaintiff's counsel
provided certificates on June 14. Notably absent was any certificate of service for Mr. Brunel.
Thus, either Mr. Brunel was never served, or he was served and Plaintiff unilaterally extended
his compliance date to an unscheduled time in the future. Either way, the time to complain about
a witness's non-compliance is at or near the time it occurs. Failure to timely complain regarding
non-compliance with a subpoena constitutes a waiver. In any event, whether served or not, Mr.
Brunel apparently promised to provide new dates before his deposition date came and went, did
not do so, has left the country and not indicated a present intention to return. Given Plaintiff's
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role in failing to compel him to attend a deposition, no "good cause" has been demonstrated to
take the deposition of Mr. Brunel after July I.
D. Jeffrey Epstein
As with the other witnesses, Plaintiff has failed to demonstrate "good cause" for seeking
to depose Jeffrey Epstein out of time. Plaintiff claims that she was unable to secure service on
Mr. Epstein until May 27, 2016, because his counsel "refused to accept service" until she filed
her motion for alternative service. The documents reflect the opposite: Mr. Epstein's attorney
agreed to accept service on April 11, 2016, and it was only on May 27, 2016, that Plaintiff
agreed. See Poe Declaration in Support of Motion to Quash Epstein Deposition, Ex. 3 (Doc. #
223-3). Plaintiff fails to explain her strategic decision, or negligence, in failing to respond for
over six weeks to Mr. Weinberg's email offering to accept service. Indeed, in another failure of
candor, Plaintiff's counsel also neglected to tell this Court about the email offer from Mr.
Weinberg either in the instant motion or in her motion to serve Mr. Epstein by alternate means.
Mot. at 2; Doc. # 160.8
Plaintiff apparently now claims that she never received that email from Martin Weinberg.
All of the preceding communications, however, indicate that Mr. Weinberg promptly responded
to Ms. McCawley's inquiries. See, e.g., Poe Declaration, Ex. 2 (email of April 6 from Weinberg
to McCawley (offering to let her know regarding acceptance of service on April 7)); email of
McCawley in response ("That works fine — thank you.")). Thus, if Ms. McCawley received no
follow up response from Mr. Weinberg, as she now claims, when he had been corresponding
8 In another glaring omission from Plaintiff's submissions to the Court on the topic of the service of Mr. Epstein,
Plaintiff's own counsel have strenuously litigated in other cases that Mr. Epstein is a resident of Florida, over his
objection that he is a resident of the U.S. Virgin Islands. See. e.g.. Menninger Decl., Ex. G (Motion to Quash
Subpoena on Jeffrey Epstein, Broward County, Florida, 15.000072). Yet, all ofPlaintiff's purported attempts at
service on Mr. Epstein were in New York.
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with her previously theretofore, she had a duty to follow up on that inquiry. A failure to do so is
plain vanilla neglect.
Even after agreeing to the terms proposed by Epstein's counsel on May 27, that is,
location of the deposition in the U.S. Virgin Islands and subject to right to oppose the subpoena,
Plaintiff then waited an additional three weeks until June 12, to even attempt to schedule
Epstein's deposition. Epstein Memorandum in Support of Mot. to Quash at 2 (Doc. # 222).
Agreeing to take a deposition in the Virgin Islands on May 27, then waiting until June 12, to try
to schedule a date for that deposition, when numerous other depositions had already been
scheduled in New York, Florida, and California for the balance of June, is either neglect or
strategic posturing by Plaintiff. Either way, it does not amount to "good cause" for such a
deposition to take place beyond July 1.
Finally, Plaintiff suggests, without factual foundation, that Ms. Maxwell played some
role in Mr. Epstein's counsel's refusal to accept service. See Mot. at 2 ("forced to personally
serve the Defendant's former boyfriend, employer, and co-conspirator"). As the timeline and
documents now reveal, however, Plaintiff failed to provide notice to Ms. Maxwell that she was
attempting to serve a Rule 45 subpoena on Mr. Epstein for more than 7 weeks! Id. Plaintiff
states that she began her service attempts on March 7, 2016. The very first Notice of Subpoena
and Deposition served on Ms. Maxwell, however, is dated April 27. Menninger Decl. Ex. H.
Thus, between March 7 and April 27, Ms. McCawley engaged in repeated attempts to serve Mr.
Epstein a Rule 45 subpoena (including a request for documents) without providing the proper
notice to the parties pursuant to Rule 45(a)(4) ("If the subpoena commands the production of
documents... , then before it is served on the person to whom it is directed, a notice and a copy
of the subpoena must be served on each party.") (emphasis added). As detailed below, this was
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not an isolated incident and merits sanction. In any event, it is difficult to imagine how it is Ms.
Maxwell's fault that Plaintiff could not serve Mr. Epstein when she was never put on notice of
any attempt to do so.
Given that Plaintiff knew as of April 11 the conditions pursuant to which Mr. Epstein
would accept service through counsel, yet waited until May 27 to agree to those terms, and then
waited another nearly three weeks to attempt to schedule Mr. Epstein's deposition on a date
available for his counsel and Ms. Maxwell's counsel, Plaintiff has fallen far short of
demonstrating "good cause" for taking Mr. Epstein's deposition beyond the end of the fact
discovery cut-off.
E. and
Finally, Plaintiff seeks the depositions of two other witnesses — and
-- who, she complains, "despite being represented by counsel, have refused to accept
service."9 Mot. at 3. Plaintiff claims that her process servers tried for three weeks (from April
25 until May 18) to personally serve Ms. and Ms. with subpoenas duces
teem. She did not explain, however, why she waited until April to try to serve these two
witnesses, about whom her attorneys have known since 2008. She also has not explained to this
Court any legally relevant or admissible evidence that either possess, nor how she intends to
introduce that evidence in a trial of this defamation claim between Plaintiff and Ms. Maxwell.
Apart from these witnesses stated intent to take the Fifth Amendment which renders their
testimony inadmissible, as discussed more fully below, neither witness has any relevant
testimony to offer because Plaintiff never made a public statement about either one of them.
9 Actually, in Plaintiff's Motion for Leave to Serve Three Deposition Subpoenas by Means Other than Personal
Service, Plaintiff details that Ms. counsel stated he no longer represents her. (Doc. #161 at 5)
("counsel for Ms. reached out to Ms. former counsel but he indicated that he could not accept
service as he no longer represents her"). It is unclear then, why Plaintiff persists in representing to this Court that
Ms. instructed her counsel not to accept service, or why Plaintiff seeks to serve Ms.
through her former counsel.
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Plaintiff did not include either woman in her Sharon Churcher-paid interviews, nor were they
mentioned in Plaintiff's Joinder Motion of December 30, 2014. Thus, neither Plaintiff's
allegations about Ms. Maxwell, nor Ms. Maxwell's denial of the same based on her personal
knowledge, are implicated by anything that Ms. or Ms. may have done with
anyone else. Their testimony cannot corroborate Plaintiff's account, nor can it shed light on
whether Ms. Maxwell's denial of that account is accurate, because Plaintiff's account did not
mention either of them.
Finally as to these witnesses, Plaintiff once again documented her own failure to comply
with Rule 45 in regard to attempts to serve these two witnesses. Six of the service attempts
occurred on April 25 and April 26. Yet Plaintiff only provided Notice to Ms. Maxwell of her
intent to serve the subpoenas on April 27. Menninger Decl. Ex. I.
II. FIFTH AMENDMENT BY EPSTEIN, OR NOT
ADMISSIBLE IN THIS CASE AGAINST MS. MAXWELL
The depositions of Epstein, and do not constitute "good cause" to
modify the scheduling order in this case for the additional reason that they all have represented to
Plaintiff their intention to assert the Fifth Amendment protection as to all questions and such
assertion will not be admissible evidence in this trial. Indeed, counsel for Mr. Epstein recently
filed a Motion to Quash his subpoena based on the same legal principle that his deposition is
unduly burdensome in light of the fact that it will not lead to admissible evidence. (Doc. # 221,
222, 223) The Court should consider this additional factor to decline a finding of "good cause"
for extending the discovery deadline.
Plaintiff wrongfully contends that any assertion of the Fifth Amendment during the
depositions of Epstein, and will be admissible in the trial of this defamation
matter (where none of those individuals are parties) based on an "adverse inference" that can be
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drawn against Ms. Maxwell. See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997). In
fact, none of the LiButti factors support her argument. While noting that Ms. Maxwell
anticipates more extensive briefing on this issue in support of Mr. Epstein's Motion to Quash, a
few facts bear mentioning here:
• Ms. Maxwell was the employee of Mr. Epstein --in the 1990s -- not the other way
around. Mr. Epstein has never worked for or been in control of Ms. Maxwell.
• Ms. Maxwell and Mr. Epstein have had no financial, professional or employment
relationship in more than a decade, many years before 2015 when the purportedly
defamatory statement was published.
• Maxwell has not vested any control in Mr. Epstein "in regard to key facts and subject
matter of litigation." As the Court is well aware from review of emails submitted in
camera (and later produced to Plaintiff):
• Epstein is not "pragmatically a non-captioned party in interest" in this litigation nor has
he "played controlling role in respect to its underlying aspects." Epstein is not, despie
Plaintiff's suggestion, paying Ms. Maxwell's legal fees. Plaintiff sought by way of
discovery any "contracts," "indemnification agreements," "employment agreements"
between Ms. Maxwell and Epstein or any entity associated with Epstein, from 1999 to the
present. Ms. Maxwell responded under oath that there are no such documents. Epstein
played no role in the issuance of the January 2 statement, nor has he issued any public
statement regarding Plaintiff. Indeed, Plaintiff and Epstein fully resolved any claims
against one another by way of a confidential settlement in 2009, another action in which
Ms. Maxwell had no role.
• Assertion of the privilege by Epstein does not advance any interest of Ms. Maxwell's.
Quite to the contrary, Epstein would be a key witness in her support, exonerating her
from Plaintiff's allegations regarding sex abuse, sexual trafficking and acting as his
"madam" to the stars. As proof, one need look no further than
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• Likewise,
Id.
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These correspondences demonstrate that Ms. Maxwell has no control over Mr. Epstein in
regards to the alleged defamation statement, he had no role in issuance of the statement, he has
no benefit in the outcome of this litigation and he played no controlling role in its respect.
Similarly, there is not any evidence at all to support an adverse inference to be drawn
from either nor assertion of the Fifth. Ms. Maxwell hardly
knows either woman, never worked with them, they have had nothing to do with this litigation
and do not stand to benefit from it, especially as Plaintiff has never made any allegations about
her involvement with either of the two of them, they are simply irrelevant to this defamation
action.
III. PLAINTIFF'S BAD DISCOVERY TACTICS SHOULD NOT BE
REWARDED WITH EXTRA TIME
1. Plaintiff's Rule 26 Revolving Door
Plaintiff's army of lawyers (who collectively have been litigating matters related to
Jeffrey Epstein since 2008) served their Rule 26 initial disclosures on November 11, 2015.
Those disclosures listed 94 individual witnesses with knowledge regarding the facts of this case,
yet provided addresses (only of their counsel) as to just two, Jeffrey Epstein and Alan
Dershowitz. Plaintiff then also listed categories of witnesses such as "all other then-minor girls,
whose identities Plaintiff will attempt to determine" and "all pilots, chauffeurs, chefs, and other
employees of Ms. Maxwell or Jeffrey Epstein. Plaintiff claimed as to her Rule 26 disclosures
that "only a fraction of those individuals will actually be witnesses in this case, and as discovery
progresses, the list will be further narrowed." (Doc. #20 at 17) The opposite has happened.
Between November 11 and March 11, Plaintiff trimmed her Rule 26 list of persons with
knowledge from 94 to 69, inexplicably removing 34 names, but adding 12 more. She removed,
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for example, witnesses and but added Senators George Mitchell,
Bill Richardson and Les Wexner.
Then between March I I and June 1, a few weeks before the discovery cut-off, Plaintiff
added 20 more witnesses, including
As to several of these newly added witnesses,
, Plaintiff promptly scheduled their depositions in June, despite having just
disclosed their names on June 1.
Menninger Decl. Ex. K.
This is precisely the type of hide-and-seek that Rule 26 is designed to prevent. While
Ms. Maxwell anticipates filing in the near future a separate motion concerning Plaintiff's latest
Rule 26 violations and seeking sanctions for the same, this Court can and should consider this
behavior in determining whether Plaintiff has "good cause" to extend the discovery cut-off so
that she can continue her gamesmanship.
2. Plaintiff's Recurrent Rule 45 Violations
As this Court has previously held:
Rule 45(b)(1) requires a party issuing a subpoena for the production of documents
to a nonparty to "provide prior notice to all parties to the litigation," which has
been interpreted to "require that notice be given prior to the issuance of the
subpoena, not prior to its return date." Murphy v. Board of Educ., 196 F.R.D. 220,
222 (W.D.N.Y.2000). At least one court in this circuit has held that notice
provided on the same day that the subpoenas have been served constitutes
inadequate notice under Rule 45. See, e.g., Fox Industries, Inc. v. Gurovich, No.
03-CV-5166, 2006 WL 2882580, *11 (E.D.N.Y. Oct. 6, 2006). ... The
1° Rather than list his client's address in the custody of the U.S. Marshal's Office, Mr. Edwards said her address is
"do" himself.
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requirement that prior notice "must be given has important underpinnings of
fairness and efficiency." Cootes Drive LLC v. Internet Law Library, Inc., No. 01-
CV-9877, 2002 WL 424647, *2 (S.D.N.Y. Mar. 19, 2002). Plaintiff fails to
provide an adequate explanation or argument for how a same-day notification
satisfies Rule 45's requirements. See, e.g., id. ("[C]ounsel for the [offending party]
offered no explanation or excuse for their failure to comply with the rule's
strictures. They did not attempt to defend the timeliness of their notice. The
[offending party's] admitted violation ... cannot be countenanced.").
Usov v. Lazar, 13-cv-818 (RWS), 2014 WL 4354691, at *15 (S.D.N.Y. Sept. 2, 2014) (granting
motion to quash the subpoenas where notice given on the same day and served beyond 100 mile
limitation of Rule 45). In that case, Plaintiff had provided same day notice of the issuance of a
subpoena. Here, we have repeated attempts to serve a subpoena over the course of days before
any notice was given to Ms. Maxwell. As described previously, Plaintiff has amply documented
her own violations of the Rule by detailing her attempts to serve subpoenas duces tecum before
ever providing notice to Ms. Maxwell with regards to witnesses Epstein, and
Likewise, with respect to witness, aintiff served the subpoena prior to
providing notice. See Menninger Decl. Ex. L. Served subpoenas before providing Notice under
Rule 45. Accordingly, Plaintiff moves to quash the subpoenas on Epstein, and
as violations of Rule 45's notice provision. Ms. Maxwell further requests sanctions
pursuant to Rule 37 for these documented violations.
With respect to Ms. ■, who was deposed already earlier today, Ms. Maxwell believes
that she did not offer any admissible testimony at her deposition. If Plaintiff's seek to introduce
her testimony, the defense reserves the right to exclude such testimony both on evidentiary
grounds as well as in violation of Rule 45's notice provision."
IV. MS. MAXWELL'S GOOD EFFORTS TO CONDUCT DISCOVERY
Counsel for Ms. Maxwell only learned of the Rule 45 violation this past weekend after reviewing certificates of
service rovided by Plaintiff's counsel last week, without sufficient time to file a motion to quash the subpoena on
Ms.
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As already documented in previous pleadings, Ms. Maxwell's counsel has engaged in
significant and repeated efforts to conduct discovery in this case in a professional, civil manner,
especially as it relates to the depositions of non-parties. On February 25, 2016, counsel for Ms.
Maxwell requested that the lawyers confer by telephone to arrange a schedule for the non-party
depositions to occur in various states and countries.!'- Plaintiff ignored that request, and requests
of the same ilk made on at least 6 different occasions in March and April. It was only on two
and 'A months later, on May 5, 2016, when Plaintiff's counsel finally responded with "as is
becoming clear, both sides are going to be needing to be coordinating a number of
depositions.s13 She then proposed a calendar which scheduled 13 additional depositions for
Plaintiff and only 2 days (actually 12/ days) for defendant to depose her remaining witnesses. 14
Defendant provided a calendar which allowed for both sides to take remaining depositions, but
Plaintiff ignored it and continued to schedule depositions on dates for witnesses without
consulting defense counsel for their availability first. Menninger Decl., Ex. M.
Because of the breakdown in communications, defense counsel was left with little choice
but to (a) show up at each of Plaintiffs noticed depositions, in Florida and New York, and (b)
issue subpoenas for witness depositions on other dates in June. For example, Plaintiff issued a
12
McCawley Decl. in Support of Request to Exceed Ten Deposition Limit, Exhibit I (Doc. # 173.1) at 28 (Letter of
Menninger to McCawley (Feb. 25, 2015) ("I would suggest that rather than repeated entails on the topic of
scheduling the various depositions in this case, or the unilateral issuance of deposition notices and subpoenas, you
and I have a phone conference wherein we discuss which depositions are going to be taken, where, and a plan for
doing them in an orderly fashion that minimizes travel and inconvenience for counsel and the witnesses. As you are
well aware from your own practice of law, attorneys have other clients, other court dates and other commitments to
work around. The FRCP and Local Rules contemplate courtesy and cooperation among counsel in the scheduling
and timing of discovery processes. This rule makes even more sense in a case such as this spanning various parts of
the country where counsel must engage in lengthy travel and the attendant scheduling of flights, hotels and rental
cars.")).
13 Id. at 19.
10
Id. at 1.3.
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Notice of Deposition for Juan Alessi on May 31, 2016, without any conferral with counsel, in
Florida, fully aware that defense counsel would be traveling from Colorado. Defense counsel, in
fact, did have to travel on Memorial Day to Florida for the 9:00 a.m. May 31 deposition. Mr.
Alessi, however, did not appear on that date, believing that his deposition was for June 1, the
same day that his wife had been subpoenaed to appear and because he and his wife live an hour
away from Ft. Lauderdale. Thus, despite defense counsel's herculean efforts, no deposition
occurred on May 31. On June 1, Mr. Alessi appeared, but there was insufficient time to take his
wife's deposition, who presumably made the one hour drive for naught. Also, defense counsel
then had to travel to New York for the June 2 hearing and back to Florida for a deposition of
another witness, Mr. Rogers, that had been scheduled without input from defense counsel.
Counsel for Plaintiff makes much of her efforts to serve witnesses Epstein,
and =. She fails to advise the Court that Ms. Maxwell has been "forced" to expend great
time, money and resources to serve Plaintiff's own mother, father, formerfiancé andformer
boyfriend. As described before, the defense even re-scheduled the deposition of Pla