gov.uscourts.nysd.447706.1201.20.pdf

Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 1 of 21  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 2 of 21 DC SDNY 1 l UNITED STATES DISTRICT COURT CUMENT \I ELECTRONJCALLY FP r('\ ' ~ SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x IDOC#: DATE FilED: ~2~ ,\ 1 VIRGINIA L. GUIFFRE, Plaintiff, 15 Civ. 7433 (RWS) - against - OPINION GHISLAINE MAXWELL, Defendant. ----------------------------------------x A P P E A R A N C E S: Counsel for Plaintiffs BOEIS, SCHILLER & FLEXNER LLP 401 East Las Olas Boulevard, Suite 1 2 00 Fort Lauderdale, FL 33301 By: Sigrid S. Mccawley, Esq. Meredith L. Schultz, Esq. Counsel for Defendants HADDON, MORGAN AND FOREMAN, P.C. 150 East Tenth Avenue Denver, CO 80203 By: Laura A. Menninger, Esq. Jeffrey S. Pagliuca, Esq. 1  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 3 of 21 Sweet, D.J. Eight discovery motions are current ly pending before this court. 1. Plaintiff Vir g ini a Gi uffre ("Giuffre" or " Plaintiff " ) has moved for an order o f f orensic examinat i on , ECF No. 96 . As set forth below, this motion is granted in part and denied in part. 2 . Defendant Ghislaine Maxwell ("Maxwell " ) or ("Defendant " ) has moved to compel Plaintiff to disclose a ll eged on - go in g criminal investigations by law enforcement , ECF No. 1 01 . As set for below, th is motion i s den i ed . 3 . Pla intiff has moved to compel Defendant to answer deposition questions , ECF No . 143. This motion is granted. 4 . Defendant has moved to compel non-privileged documents, ECF No. 155. As set forth below, this motion is den i ed . 5. Plaintiff has moved f or l eave to serve three deposit i on subpoenas by means other than personal service , ECF No. 160. As set forth below, this motion i s granted in part and denied in part. 6 . Defendant has moved to compe l attorney - client communications and work product, ECF No . 164. As set forth below , this motion denied. 2  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 4 of 21 7. Pl a i ntiff has moved to exceed the presump t ive ten deposition limit , ECF No . 172 . As set fort h be l ow , this motion is granted in part and denied in part . 8 . Pl aintiff has moved for leave to fi l e an opposit i on brief in excess of the 25 pages permitted under this Court ' s Individual Ru l es of Practice . This motion is granted . I. Prior Proceedings Familiarity with the prior proceedings and facts of this case as discussed in the Court's prior opinions is assumed . See Giuffre v . Maxwell , No . 1 5 Ci v . 7433 (RWS) , 2016 WL 83 1 949 (S . D. N. Y. Feb . 29 , 2016) ; Giuffre v . Maxwe ll, No. 15 Civ . 7433 (RWS) (S.D.N.Y . May 2 , 2016). Pl aint i ff filed her mot i on for clarification of the Court ' s March 17 , 2016 Order and for forensic examination on April 13 , 2 016 . By Order dated April 15 , 20 16, the motion for c l arification was denied on the basis that further c l ar i fication was unnecessary. Oral argument was held with respect to forensic examination on May 12 , 2016 , at which time the matter was deemed fully submitted. 3  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 5 of 21 Defendant filed her motion to compel Plaintiff to disclose ongoing criminal investigations by law enforcement , or in the alternative to stay proceedings, on April 18, 2016. Oral argument was heard and the motion granted in part and denied in part on April 21 , 20 16. Plaintiff was directed to submit the relevant materials for in camera review. Plaintiff did so on April 28, 2016. Plaintiff filed her motion to compel Defendant to answer deposition questions on May 5, 2016. Oral argument was held on May 12, 2016 , at which time the matter was deemed fully submitted. Defendant fil ed her motion to compel non-privileged documents on May 20, 2016 . By Order dated May 23, 2016 , the motion was set for argument on June 2, 2016 . The motion was taken on submission on that date. Defendant filed a reply on June 6, 2016 . Plaintiff filed her letter motion for l eave to serve three depositions subpoenas by means other than personal service. By Order dated May 27 , 2016, the motion was set for argument on June 2 , 2016. The motion was taken on submission on that date. 4  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 6 of 21 Defendant fi l ed her motion to compel attorney - c l ient communications and work product on May 26 , 2016 . By Order dated May 27 , 2016 , the motion was set for argument on June 2 , 2016. The motion was taken on submi ssion on that date . Defendant fi l ed a reply on June 6, 2016. Plaintiff fi l ed her motion to exceed the presumptive ten deposition limit on May 27 , 2016 . By Order dated June 6 , 2016 , the motion was set returnable on June 16 , 2016 , at which time the motion was deemed ful l y submitted . Plaintiff fi l ed her motion for leave to file excess pages on June 1 , 2016 . II . Applicable Standards Rule 26 "create[s] many options for the district judge . [to] manage the discovery process to facilitate prompt and efficient resolution of the lawsuit . " Crawford-El v . Britton , 523 U.S . 574 , 599 , 1 18 S . Ct. 1584 , 1597 , 140 L . Ed . 2d 759 (1998). It "vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery. " Crawford- El v . Britton, 523 U.S. 574 , 598 , 118 S . 5  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 7 of 21 Ct . 1584 , 1597 , 140 L . Ed . 2d 759 (1998) . The District Court may expand or limi t the permi tted number and time limits of depositions , direct " the t i me , p l ace , and manner of discovery , or even bar discovery on certa i n s u bjects , " and may "set the timing and sequence of d i scovery . " Id . a t 598-99 ; Fed . R . Civ . P . 26(b)(2)(A) . Consequently , the Court has wide discretion in decid i ng motions to compel. See Grand Cent . P ' ship . Inc . v . Cuomo , 1 66 F . 3d 473 , 488 (2d Cir . 1999) . Federal Rule of Civil Procedure 26 states : Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party ' s claim or defense- including the existence , description , nature , custody , condition, and location of any documents or other tangib l e things and the identity and location of persons who know of any discoverable matter . For good cause , the court may order discovery of any matter relevant to the subject matter involved in the act i on. Fed . R. Ci v . P . 26 . If a party objects to discovery requests , that party bears the burden of showing why d i scovery should be denied . Freyd l v . Meringolo , 09 Civ . 07196 (BSJ) (KNF) , 2011 WL 256608-7 , at *3 (S . D.N . Y. June 16 , 20 11 ) . 6  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 8 of 21 III. The Motion For an Order of Forensic Examination Is Granted in Part and Denied in Part Federal Rule of Civil Procedure 2 6 ( f) ( 3) ( C) requires the parties to state their views and proposals as to preservat i o n of electronically stored information ("E SI") and the form of production of ESI. Fed. R. Civ . P. 26(f) (3) (C). Defendant having admitted to de l etion practices that indicate relevant documents and also refused to detail document search methods , good cause exists to warrant court supervised examination of her electronic devices. Accordingly, Plaintiff ' s motion is granted in part . Defendant is ordered to col l ect all ESI by imaging her computers and collecting all email and text messages on any devices in Defendant's possession or to which she has access that Defendant used between th e period of 2002 to present . Defendant is further directed to run mutua ll y - agreed upon search terms related to Plaintiff's requests for production over the aforementioned ESI and produce responsive documents within 21 days of distrib u tion o f this opinion . 7  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 9 of 21 IV. The Motion to Compel Plaintiff to Disclose Ongoing Criminal Investigations is Denied The public interest privilege " exists to encourage witnesses to come forward and provide information in crimina l investigations carried out by [law enforcement ] without fear that the information wi l l be disclosed ." Sanchez by Sanchez v. City of New York , 201 A. D. 2d 325 , 326 , 607 N. Y.S . 2d 321 (1994) . A party seeking disclosure of such information "first must demonstrate a compelling and particu l arized need for access " beyond "[g]eneral and conc l usory allegations . " Id . The Court then weighs application of the qualified privilege by balancing the need for production against the potentia l harm to the public from disclosure . I d. After rev i ew of the materials in camera , the qual i fied pub l ic interest privil ege as set forth in Sanchez has been established with respect to the submitted documents. Defendant has articulated no need for the documents . Accordingly , the balance weighs in favor of the pr i vilege, and the motion to compel is denied . To preserve the record, Pl aintiff is directed to file under seal a comprehensive copy of the log and documents within 21 days of distribution of this opin i on. 8 Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 10 of 21 9 Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 11 of 21 10  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 12 of 21 VI . The Motion to Compel Non-Privileged Documents is Granted in Part and Denied in Part Defendant has sought to compel the following documents: (1) attorney-client communications regarding media advice; (2) pre- existing documents transmitted to counsel ; (3) documents shared with or communicated to unidentified third parti es ; (4) documents primarily for the purpose of providing business adv ice; (5) documents subject to an unidentified common interest or joint defense protection. Plaintiff has represent ed that all responsi ve "attachments" Defendant seeks to compel have been produced . Accordingly, this request is denied . Defendant seeks to compel attorney-client communications that include "third parties " on the basis that Plaintiff ' s privilege log is deficient for identifying individuals as "professionals retained by attorneys to aid in the rendition of legal advice . " A review of Plaintiff ' s privilege log shows Plaintiff has expressly claimed privilege , described the nature of the withheld documents , communications , and tangible things not produced, and generally logged communications in compliance with Federal Rule of Civil Procedure 2 6 (b) ( 5) (A) (ii) . " Unless 11  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 13 of 21 the client waives privilege , an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment , shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication." N. Y. C.P.L . R. 4503 (McKinney) (emphasis added) . The conduct expl i citly described by statute as privileged does not operate as waiver, and again Defendant has provided no factual basis to suggest Plaintiff has misrepresented the identity or role of the third-parties listed . Defendant ' s request is denied . Defendant ' s challenge to the common interest privilege claims is likewise unavailing . Regardless of whether Plaintiff has reflexively claimed the common interest privilege in each entry does not vitiate the otherwise applicable privilege claims made , and Defendant has provided no factual foundation to establish waiver or failure of the other claimed privileges . Finally, with respect to the media and business advice communications, Defendant has marshaled no evidence to support her speculation that the documents logged as privileged are improperly withheld other than the fact that one member of 12  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 14 of 21 Plaintiff ' s legal team is an author . Plaintiff has represented to the Court and via a detai l ed privilege log that the communications in question are privileged. Stan Pottinger , the author in question , is a barred attorney of record in this case , incomparable to Defendant ' s med i a agent (and non - attorney) Ross Gow . That Pottinger has written non - legal material , or e ve n whether his " primary occupation in the most recent years [is] as a nove l ist , " is irrelevant to whether his communication with Plaintiff as her counsel was for the purpose of providing legal advice . Similarly , Bradley Edwards , who Defendant has already challenged, is an attorney of record in this case , and Defendant has provided no evidence other than the fact of his representation of Plaintiff ' s non - profit to doubt that the communications logged are privi l eged. Having provided no grounds to doubt the sworn representations of Plaintiff ' s counsel , Defendant ' s moti on to compel these communications is denied . Defendant is granted leave to refile the motions with respect to media and business advice on the basis o f relevant and non - specious factual support . Court intervention should not be invoked to resolve routine discovery matters on the basis of a supposition of bad faith. Further filing of frivolous or vexatious motions lacking sufficient factual support to support a colorable argument (or 13  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 15 of 21 on the basis of misrepresented or false facts or law) will be met with sanctions. VII. The Motion for Leave to Serve Three Deposition Subpoenas By Means Other than Personal Service is Granted in Part and Denied in Part Pla i ntiff seeks to compel subpoenas to serve Nadia Marcinkova , Sarah Kellen , and Jeffrey Epstein . The request is denied wi th respect to Epstein as moot. No opposition having been f il ed and the testimony of Marcinkova and Kellen being relevant to falsity of the defamation at issue , the motion is granted with respect to Marc i nkova and Kellen . VIII. The Motion to Compel Attorney-Client Communications and Work Product is Denied Defendant argues that " Edwards and Cassell preemptively filed an action against Dershow i tz proclaiming they did not violate Rule 11 [and i ] n doing so , they voluntarily put at issue and relied on : a) their good faith reliance on information commun i cated to them by Plaint i ff , and b) their work product 14  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 16 of 21 show i ng that their filing was reasonably investigated and substantia ll y justified . " Def .' s Rep l y in Supp . Mot . to Compel all Att ' y-Client Comms. and Att ' y Work Product at 8 - 9 (Def .' s Reply on AC") . The Broward County , Fl orida Court ruled on this argument in Edwards and Cassell v . Dershowitz and Defendant argues in reply that this order is non - binding , and was issued pr i or to Plaintiff ' s testimony. I d . at 1 . Defendant was not a party to the Florida case. Nevertheless , Defendant ' s argument is nearly identica l to Dershowitz's. Defendant argues Plaintiff ' s testimony arose after the ruling in the Florida case , however , the principle of that argument is the same: Defendant placed her attorney-c l ient communications with Edwards and Cassel l at i ssue by relying on the content of those communications in Edwards and Cassell v . Dershowitz . The Florida Court ' s rul i ng is therefore h i ghly relevant privilege has not been waived. 2 The motion is accordingly denied . 2 The Court declines to address the choice of law issue , as application of Florida or New York at - issue doctrines are not outcome determinative in this instance and thus no determination is necessary . Compare Coates v . Akerman , Senterfitt & Eidson , P.A ., 940 So . 2d 504 , 510 (Fla . Dist . Ct . App . 2006) ("for waiver to occur under the at issue doctrine , the proponent of a privilege must make a claim or raise a defense based upon the privileged matter and the proponent must necessarily use the privileged information in order to establish its claim or defense ." ) with Chin v. Rogoff & Co. , P.C ., No. 05 CIV. 15 Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 17 of 21 16 Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 18 of 21 17  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 19 of 21 • X. The Motion for Leave to File Excess Pages is Granted Plaintiff sought leave to file excess pages in response to Defendant's motion to compel attorney - client communications and work product. To the extent the motion is not moot , leave is granted . XI. Conclusion As set forth above: the motion for an order of forensic examination is granted in part and denied in part; the motion to compel to compel Plaintiff to disclose alleged on - going criminal investigations by law enforcement is denied ; the motion to compel Defendant to answer deposition questions is granted ; the motion to compel non - privileged documents is denied ; the motion for leave to serve three deposition subpoenas by means other than personal service is granted in part and denied in part; the motion to compel attorney - client communications and work product is denied ; the motion to exceed the presumptive ten deposition limit is granted; the motion for l eave to file an opposition brief in excess of the 25 pages permitted under this Court's Individual Rules of Practice is granted. This opinion resolves ECF Nos . 96 , 101 , 143 , 155 , 160, 164 , 172 , and 182 . 18  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 20 of 21 .': For purposes of managing the filings in this case , the parties are further directed to comply with the Court 's Individual Rules of Practice by providing all future motion papers in their full non -redacted form, comp l ete with related dec l arat i ons and exhib it s , in a sing l e complete bound hard copy delivered to Ch ambers at the time of filing. All soft - cop i es must be provided by attachment of a single PDF in its full non- redacted form, including a ll related dec l arations and exhib it s irrespective of whether each attachment or declaration is intended to be filed under seal. Soft - copies must be provided in addit i o n to, not in li eu o f, hard-copies. This matter being sub j ect to a Protective Order , the parties are directed to meet and confer regarding redactions to this Opin i on cons i stent with that Order. The parties are further directed to jointly file a proposed redacted version of this Opinion or notify the Court that none are necessary with in two weeks of the date of receipt of this Opin i on . It is so ordered . 19  Case 1:15-cv-07433-LAP Document 1201-20 Filed 01/27/21 Page 21 of 21 New York, NY June 'J.,o , 2016 U.S.D.J. 20