gov.uscourts.nysd.447706.211.0.pdf

Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 1 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 2 of 16  Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 3 of 16 TABLE OF CONTENTS Page I. THE PROPOSED DEPOSITIONS ARE IMPORTANT TO THE FUNDAMENTAL CLAIMS AND DEFENSES IN THIS CASE, AND NONE ARE DUPLICATIVE. ........ 1 II. MS. GIUFFRE IS SEEKING HIGHLY RELEVANT TRIAL TESTIMONY. .................. 6 III. MS. GIUFFRE’S REQUEST IS TIMELY. ........................................................................ 9 i  Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 4 of 16 TABLE OF AUTHORITIES Page Cases Atkinson v. Goord, No. 01 CIV. 0761 LAKHBP, 2009 WL 890682 (S.D.N.Y. Apr. 2, 2009) ................................3 Gen. Elec. Co. v. Indem. Ins. Co. of N. Am., No. 3:06-CV-232 (CFD), 2006 WL 1525970 (D. Conn. May 25, 2006) ..................................9 LiButti v. United States, 107 F.3d 110 (2d Cir. 1997).......................................................................................................8 Rules Fed. R. Evid. 404(b).........................................................................................................................7 Fed. R. Evid. 415(a) .........................................................................................................................7 ii Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 5 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 6 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 7 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 8 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 9 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 10 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 11 of 16 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 12 of 16  Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 13 of 16 drawing of adverse inferences is admissible, court may consider the following nonexclusive factors: (1) nature of witness’ relationship with and loyalty to party; (2) degree of control which party has vested in witness in regard to key facts and subject matter of litigation; (3) whether witness is pragmatically noncaptioned party in interest and whether assertion of privilege advances interests of witness and party in outcome of litigation; and (4) whether witness was key figure in litigation and played controlling role in respect to its underlying aspects. Id. at 124-25. Ms. Giuffre will be able to establish that all these factors tip decisively in favor of allowing an adverse inference. Accordingly, her efforts to depose Epstein, Marcinkova, and Kellen seek important information that will be admissible at trial. III. MS. GIUFFRE’S REQUEST IS TIMELY. Defendant also argues that this motion is somehow “premature.” Defendant’s Resp. at 2-3. Clearly, if Ms. Giuffre had waited to file her motion until later, Defendant would have argued until the matter came too late. The motion is proper at this time because, as of the date of this filing, fact discovery closes in 17 days (although Ms. Giuffre has recently filed a motion for a 30-day extension of the deadline). In order to give the Court the opportunity to rule as far in advance as possible – thereby permitting counsel for both side to schedule the remaining depositions – Ms. Giuffre brings the motion now. She also requires a ruling in advance so that she can make final plans about how many depositions she has available and thus which depositions she should prioritize. 10 10 Defendant tries to find support for her prematurity argument in Gen. Elec. Co. v. Indem. Ins. Co. of N. Am., No. 3:06-CV-232 (CFD), 2006 WL 1525970, at *2 (D. Conn. May 25, 2006). However, in that case, the Court found a motion for additional depositions to be premature, in part, because “[d]iscovery has not even commenced” . . . and the moving party “ha[d] not listed with specificity those individuals it wishes to depose.” Of course, neither of these points applies in this case at hand: the parties are approaching the close of fact discovery, and Ms. Giuffre has provided detailed information about each individual she has deposed already and still seeks to depose. 9 Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 14 of 16  Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 15 of 16 333 Main Street Armonk, NY 10504 Bradley J. Edwards (Pro Hac Vice) FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Paul G. Cassell (Pro Hac Vice) S.J. Quinney College of Law University of Utah 383 University St. Salt Lake City, UT 84112 (801) 585-5202 11 11 This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation. 11  Case 1:15-cv-07433-LAP Document 211 Filed 06/14/16 Page 16 of 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 14th day of June, 2016, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CM/ECF. Laura A. Menninger, Esq. Jeffrey Pagliuca, Esq. HADDON, MORGAN & FOREMAN, P.C. 150 East 10th Avenue Denver, Colorado 80203 Tel: (303) 831-7364 Fax: (303) 832-2628 Email: [email protected] [email protected] /s/ Sigrid S. McCawley Sigrid S. McCawley 12