gov.uscourts.nysd.447706.1198.13_1.pdf

Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 1 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------X ............................................. VIRGINIA L. GIUFFRE, Plaintiff, v. 15-cv-07433-RWS GHISLAINE MAXWELL, Defendant. --------------------------------------------------X DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR RULE 37(b) &(c) SANCTIONS FOR FAILURE TO COMPLY WITH COURT ORDER AND FAILURE TO COMPLY WITH RULE 26(a) Laura A. Menninger Jeffrey S. Pagliuca HADDON, MORGAN, AND FOREMAN, P.C. East 10th Avenue Denver, CO 80203 303.831.7364  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 2 of 19 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND FACTS ............................................................................................................... 2 ARGUMENT .................................................................................................................................. 9 A. Plaintiff’s Cannot Avoid Sanctions through Belated Production of Documents and Information Improperly Withheld..................................................................................... 11 B. Ms. Maxwell has been Prejudiced, Although Prejudice Is Not Required for Imposition of Rule 37 Sanctions ........................................................................................................... 133 C. Preclusion of Plaintiff’s Claims for Emotional Distress and Physical and Psychological Damages is Warranted ...................................................................................................... 14 CERTIFICATE OF SERVICE ..................................................................................................... 17 i  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 3 of 19 Defendant Ghislaine Maxwell (“Ms. Maxwell”) files this Reply (“Reply”) to Plaintiff’s Response in Opposition to Defendant’s Motion for Rule 37(b) &(c) Sanctions for Failure to Comply with Court Order and Failure to Comply with Rule 26(a) (“Response”), as follows: INTRODUCTION Plaintiff filed this Complaint in September 2015 seeking $30 million of non-economic damages related to her psychological damage from a defamation which, she claims, occurred in January 2015. In her Rule 26 disclosures served November 11, 2015, she included not a single treating physician to support this claim. As she now admits, Plaintiff only began to request her own medical records on April 5, 2016 – 15 months after the supposed defamation, 8 months after filing suit, 8 weeks after the defense requested the records, 2 weeks after the Motion to Compel was filed, and 1 day after she informed the Court that she had “already sent releases to all of her medical care providers.” The records Plaintiff requested on April 5, and produced mere days before her deposition on May 3, omitted more than 15 treatment providers, including ones known specifically to Plaintiff’s counsel and other doctors Plaintiff clearly knew of because she had seen just them days earlier. Plaintiff’s Response is devoted to (a) extraneous, irrelevant and selective quotations from witnesses who know nothing about her medical records or treatment,1 and (b) incomplete and inaccurate representations that she has, since the Court’s Order, disclosed some of her providers and produced some of their records. Essentially, Plaintiff argues that her failure to identify her 1 In her own flagrant attempt to direct attention away from sanctionable litigation tactics, Plaintiff includes in her “Introduction” and her “Conclusion” inaccurate, incomplete, misleading deposition testimony from certain witnesses in this case. That testimony has no bearing on the issue of whether Plaintiff violated a Court Order to produce medical records (indeed none of the witnesses discussed know a single thing about Plaintiff’s medical conditions), and Plaintiff’s Introduction and Conclusions should be stricken as impertinent and scandalous. Similarly, Plaintiff devotes pages to inaccurate accounts of Ms. Maxwell’s productions and discovery, which also should be stricken as irrelevant and impertinent. 1 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 4 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 5 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 6 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 7 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 8 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 9 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 10 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 11 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 12 of 19 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 13 of 19  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 14 of 19 Plaintiff to identify all of her health care providers and provide a release for each of them. Menninger Decl. Ex. F, Interrogatories 12 and 13. Plaintiff failed to identify all of her health care providers in her Response and still has not done so; she only provided releases for specific providers discovered by defendant through independent investigation and specifically requested. Plaintiff cannot be permitted to hide the identity of treatment providers and then avoid sanctions by complying once caught in her improper conduct. “The sanctions imposed by Rule 37 for obstructing or failing to comply with discovery procedures would be hollow indeed if they could be imposed only on those whose efforts at concealment proved to be successful. Plaintiff may not properly escape the consequences of his own wrongful conduct because the defendants were diligent and persistent enough to overcome the obstacles which he placed in their path.” Nittolo v. Brand, 96 F.R.D. 672, 676-77 (S.D.N.Y. 1983); Penthouse Intl., Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 390 (2d Cir. 1981) (affirming dismissal pursuant to Rule 37 where plaintiff refused to produce certain records in violation of court discovery order and where false testimony, material misrepresentations by counsel and foot-dragging were used in an effort to prevent defendant from getting at the relevant records, despite subsequent production of the records); Radetsky v. Binney & Smith, Inc., No. 85 CIV. 4379 (PNL), 1989 WL 234026, at *35 (S.D.N.Y. Dec. 13, 1989) (recommending dismissal of the case under Rule 37, despite the fact than many of documents withheld had subsequently been produced based on the defense’s investigation, because “Plaintiff's continued obstreperous conduct has prejudiced defendant's ability to develop his case and resulted in additional expense to the litigants and the court system.”). 12 Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 15 of 19  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 16 of 19 purposes may still justify the sanctions [of default judgment].” Id. To permit a party to avoid Rule 37 sanctions based on the purposeful avoidance and delay in providing key relevant and discoverable information would disserve the deterrence purpose of Rule 37. “[I]f parties are allowed to flout their obligations, choosing to wait to make a response until a trial court has lost patience with them, the effect will be to embroil trial judges in day-to-day supervision of discovery, a result directly contrary to the overall scheme of the federal discovery rules. . . . Under the deterrence principle of [National Hockey League], plaintiff’s hopelessly belated compliance should not be accorded great weight. Any other conclusion would encourage dilatory tactics, and compliance with discovery orders would come only when the backs of counsel and the litigants were against the wall.” Id. (quoting Cine Forty–Second St. Theatre, 602 F.2d at 1068). C. Preclusion of Plaintiff’s Claims for Emotional Distress and Physical and Psychological Damages is Warranted Plaintiff’s attempt to distinguish the authority warranting the preclusion of her damages claims for emotional distress and physical and psychological injury is unavailing. As proven by her most recent productions, her discovery abuses are equally as purposeful, prejudicial, and sanctionable as those in the cited cases where the Court has dismissed the cases entirely. Since this Court’s Order at the April 21, 2016 hearing, despite the Plaintiff’s counsel representation to undersigned counsel and this Court that the identities and all medical records for Plaintiff’s treatment providers after the alleged defamation had been provided, fifteen additional treatment providers have been disclosed, at least nine of them after Plaintiff’s deposition. This is not, as Plaintiff argues, a simple failure of memory related to treatment “years and years ago.” These treatment providers had all seen Plaintiff literally days, weeks, and 14  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 17 of 19 months before the Court hearing. These are treatment providers who all have discoverable information on alternate causes of Plaintiff’s alleged injuries. At a minimum, Plaintiff was and is capable of identifying the physicians and psychologists who have treated her; the matter is fully in her control. These were providers who she is currently seeing or has seen in the recent past, who have prescribed her medication, and who are treating her for emotional and mental issues, the very conditions for which she seeks damages. There can be no argument that the failure to identify and produce records from these doctors was anything but an intentional and willful violation of the discovery rules and this Court’s Order. This is but one example of Plaintiff’s discovery misconduct. Plaintiff repeatedly has produced requested documents only when the non-production of the documents had been or was about to be discovered. In addition to the examples discussed in the opening brief, most recently, the day prior to the deposition of Detective Joseph Recarey (noticed by Plaintiff), over 650 pages of previously undisclosed documents relating to his investigation of Jeffery Epstein were provided by Plaintiff. This late production occurred despite the fact that Defendant requested all documents relating to communications with or investigations by law enforcement, which Plaintiff claimed she had produced.4 Plaintiff’s pattern of discovery abuses and failure to disclose necessary and required information makes clear that no lesser sanction will deter Plaintiff’s continuing discovery abuses. The purpose of Rule 37 sanctions, “to ‘ensure that a party will not benefit from its own failure to comply,’ to ‘obtain compliance with a particular order issued,’ and to ‘serve a general deterrent 4 Plaintiff lodged an objection to communications regarding “ongoing” investigations, but did not object to production of documents regarding Det. Recarey’s 2006 investigation. Moreover, weeks prior to the deposition, Plaintiff amended her Rule 26 disclosures to include these as documents on which she planned to rely, yet failed to produce them until the day before the deposition, despite multiple requests for production of all newly listed Rule 26 documents. 15  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 18 of 19 effect on the case at hand and on other litigation, provided that the party against whom they are imposed was in some sense at fault.’” Szafrankowska v. AHRC Home Care Servs., Inc., 2008 WL 186206, *1 (S.D.N.Y. Jan. 22, 2008) (quoting Update Art, 843 F.2d at 71); see also S. New England, 624 F.3d at 149. Any action short of precluding Plaintiff’s recovery of claims for physical, psychological and emotional distress damages will fall short of serving Rule 37’s purpose to “ensure that a party will not benefit from its own failure to comply” with court orders. S. New England, 624 F.3d at 149. To permit Plaintiff to get away with her purposeful non-compliance would reward her by allowing her to conceal relevant discoverable information. Some of this information may be dispositive on the lack of causation between Ms. Maxwell’s alleged defamatory statement and Plaintiff’s alleged physical symptoms and emotional distress. WHEREFORE, for the forgoing reasons and those set forth in the Motion, Ms. Maxwell request that the relief requested in the Motion be granted. Dated: July 8, 2016 Respectfully submitted, /s/ Laura A. Menninger Laura A. Menninger (LM-1374) Jeffrey S. Pagliuca (pro hac vice) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Phone: 303.831.7364 Fax: 303.832.2628 [email protected] Attorneys for Ghislaine Maxwell 16  Case 1:15-cv-07433-LAP Document 1198-13 Filed 01/27/21 Page 19 of 19 CERTIFICATE OF SERVICE I certify that on July 8, 2016, I electronically served this REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR RULE 37(B) &(C) SANCTIONS FOR FAILURE TO COMPLY WITH COURT ORDER AND FAILURE TO COMPLY WITH RULE 26(A) via ECF on the following: Sigrid S. McCawley Paul G. Cassell Meredith Schultz 383 S. University Street BOIES, SCHILLER & FLEXNER, LLP Salt Lake City, UT 84112 401 East Las Olas Boulevard, Ste. 1200 [email protected] Ft. Lauderdale, FL 33301 [email protected] [email protected] J. Stanley Pottinger Bradley J. Edwards 49 Twin Lakes Rd. FARMER, JAFFE, WEISSING, EDWARDS, South Salem, NY 10590 FISTOS & LEHRMAN, P.L. [email protected] 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 [email protected] /s/ Nicole Simmons Nicole Simmons 17