EFTA00612250.pdf

H3VOGIU1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 x 3 4 Plaintiff, 5 v. 15 Civ. 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. Oral Argument x New York, N.Y. 9 March 31, 2017 10:10 a.m. 10 Before: 11 HON. ROBERT W. SWEET, 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. (212) 805-0300 EFTA00612250  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. (212) 805-0300 EFTA00612251  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. (212) 805-0300 EFTA00612252  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. (212) 805-0300 EFTA00612253  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. (212) 805-0300 EFTA00612254  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. (212) 805-0300 EFTA00612255  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. (212) 805-0300 EFTA00612256  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 , 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. (212) 805-0300 EFTA00612257  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. (212) 805-0300 EFTA00612258  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. (212) 805-0300 EFTA00612259  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. (212) 805-0300 EFTA00612260  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. (212) 805-0300 EFTA00612261  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 ro 17 put in with respect to Mr. Clinton, they have whc 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. (212) 805-0300 EFTA00612262  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. (212) 805-0300 EFTA00612263  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. 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. (212) 805-0300 EFTA00612264  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. (212) 805-0300 EFTA00612265  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 prior sexual assault. 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. (212) 805-0300 EFTA00612266  H3VOGIU1 But prior sexual assault, it's irrelevant to this action. It doesn't come in under 401. It doesn't involve defendant. It predates even meeting defendant. 8 These are also classic examples of evidence that 9 should be excluded under Rule 412. The Rape Shield Law forbids 10 evidence concerning these unrelated events involving 11 Ms. . This rule should be strictly enforced, 12 particularly because these events happened 13 Rule 412(a) bars this evidence if it's offered 14 to prove that she engaged in any type of sexual behavior to 15 prove any type of disposition. 16 It should also be excluded under Rule 403. This is 17 extremely prejudicial, and because it is irrelevant, it would 18 only encourage the jury to view Ms. 19 20 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. (212) 805-0300 EFTA00612267  H3VOGIU1 1 she wasn't truthful about something, about being sexually 2 assaulted, but the documents themselves describe something 3 that's unequivocally sexual assault under Florida law, 4 something that is unequivocally nonconsensual. 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 And again, any minor probative value that's 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. (212) 805-0300 EFTA00612268  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, Ms. . 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. 22 Ms. concedes here that illegal or 23 nonprescription use of drugs during the years that she was with 24 defendant is admissible. However, 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612269  H3VOGIU1 21 1 2 3 4 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, taking drugs prescribed for various 24 mental health issues is not the same thing as emotional 25 distress. They're two different issues. So any marginal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612270  H3VOGIU1 22 1 probative value is outweighed by the prejudice. Again, this is 2 only seeking damages based on defendant's defamation. 3 I'm going to move on to point number 9. Ms. 4 seeks to exclude any alleged criminal history from coming into 5 this case. And the Federal Rules of Evidence bar the 6 introduction of this evidence, full stop. 7 As the Court is aware, the only criminal history 8 could come into evidence is through Rule 609, but that rule 9 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, especially a crime like this, which specifically 19 is 20 Knowing that this type of evidence is excluded, 21 counsel for defendant has put forth an unsupported argument 22 that 23 t That is, of course, false. 24 25 And moreover, the documentary evidence in this case, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612271  H3VOGIU1 23 1 which has been produced in discovery and submitted to this 2 Court, shows that it was 3 sending her with handwritten instructions about what to do when 4 she gets there. So if this unsupported argument that defendant 5 left the United States because of some 6 then that makes defendant an accessory after 7 the fact and implicates her in the wrongdoing. 8 So I don't -- basically, there's just -- this argument 9 is also undone by the fact that later, Ms. comes back 10 to the United States to live here. She's not fleeing 11 accusations, she was fleeing defendant. If she were worried 12 about criminal liability in the United States, she wouldn't 13 come back to live here. 14 But the overall point is any marginal probative value 15 from these allegations, which I don't think there is any, but 16 it's far vastly outweighed by the prejudice it would cause 17 Ms. and should be excluded under all those rules. 18 Moving now to point 10. Ms. has requested 19 that the Court exclude any evidence regarding special 20 schooling, truancy, and juvenile delinquencies. 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, so 25 please bear with me. In this case, Ms. -- well, school SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612272  H3VOGIU1 2.1 1 records have been part of discovery. They show a history of 2 rampant truancy and failed courses. 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 8 value and should be excluded under 403. 9 There's a huge remoteness issue here, your Honor. 10 These truancies and juvenile delinquencies took place many 11 years ago when she was a minor. 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 she was in school, and therefore, not abused by her client. 18 To the contrary, the records show that she was not in 19 school over half the time she was supposed to be and did not 20 complete her courses. 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. (212) 805-0300 EFTA00612273  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 ill, 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 So what the records actually show is rampant truancy, 15 years of absence from school while defendant was abusing her, 16 which show ample opportunity for abuse, and are, in fact, in 17 accord with the flight records, which have also been produced 18 in this case, which place Ms. on 23 flights with 19 defendant aboard Jeffrey Epstein's private plane. 20 So as these records actually show truancy, failed 21 grades, failure to complete courses, these should be excluded 22 under all the rules I cited earlier, or at a bare minimum, 23 instruction to the jury about what the codes mean and detailing 2.1 how many days of school Ms. actually attended, a number 25 that is conspicuously absent from defendant's brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612274  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, including characterizations of her as a bad child or 5 a runaway. Defendant's response to this tries to conflate two 6 separate things; prior bad acts, an assault on her character on 7 one hand, with a reputation for truthfulness of another. Prior bad acts she may have committed as a child, like 9 running away, is inadmissible and a defamation action where the 10 damages relate to her reputation. That she ran away from home 11 or was an ill-behaved child 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 in her 30s. This does not open the 17 door into evidence of Ms. generalized character, 18 particularly one from a troubled childhood. Occurrences, such 19 as running away from her home when she was a child, 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. (212) 805-0300 EFTA00612275  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. The alleged tax compliance of her 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 that Ms. organization is not tax compliant, which, in 20 fact, it is a fact that defendant does not acknowledge in her 21 briefing. 22 Proving whether or not Ms. is 23 tax compliant would 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. (212) 805-0300 EFTA00612276  H3VOGIU1 25 1 Ms. tax compliance are based on an 2 errant report by her purported expert, an expert who should be 3 excluded from testifying because his report lacked methodology 4 and he opined on topics far afield from his expertise. 5 Second, any allegations that her is not 6 tax compliant 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. 24 Second, there is no evidence in this case that any 25 government, believes that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612277  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 be