gov.uscourts.nysd.447706.555.0.pdf

Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 1 of 21 I I UNITED STATES DISTRICT COl)RT .-,fi lf\11\\ I SOUTHERN DISTRICT OF NEWff P~ :._.·__ '--·-\\ \J \ --------------------------------------------------X \~~\i \ \.) . I •t. '\U .lt ~ I VIRGINIA L. GIUFFRE, \ 11 ~c: J~ ~tl 'J / .. ~ Cfi, <' \) 1..1\:'IL V• --- - I V. Plaintiff, ----- 15-cv-07433-RWS GHISLAINE MAXWELL, I Defendant. I --------------------------------------------------X I DEFENDANT'S MOTION FOR SANCTIONS BASED ON I PLAINTIFF'S INTENTIONAL DESTRUCTION OF EVIDENCE I. I I I I Laura A. Menninger I Jeffrey S. Pagliuca HADDON, MORGAN , AND FOREMAN, P.C. 150 East I 0111 Avenue I Denver, CO 80203 303.831.7364 I I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 2 of 21 I I Defendant Ghislaine Maxwell ("Ms. Maxwell") hereby submits this Motion for Sanctions I Based on Plaintiffs Intentional Destruction of Evidence and further states as follows: I INTRODUCTION In 2013 , after Plaintiff was in the process of attempting to join the Crime Victims' Rights I Act litigation ("CVRA Litigation") represented by her current counsel , Plaintiff willfully and deliberately burned her long-ke tjoumal in a bonfire'in her backyard. According to Plaintiff, I the JOUma] contained her tlfoughts, merribries arid infohnatioh concerning the time she claims'she I I iwere '..'.evidence''~ evidence she. believeiJ would.be fi:i.yorable to the storY. she had . decided to tell I One can only assume then that Uiejoumal contained the opposite: evidence unfavorable to Plaintiff and inconsistent with the story she ultimately submitted to the Court in the CVRA case. I Presumably, the joumaf documented that the newest iteration of her story contained in the I CVRA litigation differed materially from her rior "memories" which were written wli'en she was riot planninglitigation and rlbt motivate<Ltq exaggerate and fabricate details abouthen I w emgries and events .. Rather than having her new story impeached by her own words, she destroyed the unfavorable evidence. Such willful and intentional destruction of evidence I warrants an adverse inference jury instruction, if not outright dismissal of Plaintiff s claims. I BACKGROUND FACTS As the Court is well aware, Plaintiff first decided to publicize her story concerning I Jeffery Epstein in 2011. In February 2011 , she participated for a substantial sum of money in a I week-long series of interviews with reporter Sharon Churcher in advance of a series of sensationalist articles published in February and March 2011 in the Daily Mail. Those articles I contain a series of stories that vary substantially from the accounts published by Plaintiff in late I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 3 of 21 I I 2014 as a part of her CVRA joinder motion. The Daily Mail articles state, for example, that (a) I Ms. Maxwell was not present during Mr. Epstein's first meeting with Plaintiff, nor did she participate in any alleged sexual encounters; (b) there is "no suggestion" that Plaintiff had any I sexual interaction with Prince Andrew at any time; and (c) there was no mention of Plaintiff ever I meeting, let alone having sexual encounters with, Professor Alan Dershowitz. After the publication of those articles, Sharon Churcher introduced Plaintiff to attorney I Brad Edwards. Edwards was then (and now) actively litigating his own personal civil case I against Mr. Epstein as well as pursuing the CYRA action in an attempt to void the non- prosecution agreement between Mr. Epstein and the Government. According to Plaintiffs I discovery responses: I Bra~ Edward~, . (alon~ wi!h. ot~~Faqper, Jaffe ~ttomeys) represents !v.1t~· Giuffr~ as a non-party' i1i the. Iitig~tion~styledt'as 'Jane Doe #land Jane Doe #2 v. United tat~s, G~e No. 08-807~$)-CIV-Marra, So.u them District of Florid~ startil"l 1 ' I ofii. ["the cvRA :Eitigation"J ~rad Edwards·.provided Ms. Giuffre with legal advice concerning media inguiries I 1s. Giuffre had received start.il"l . in 4.Q11 I Menninger Deel., Ex. A, at p. 9-10. I to the CVRA Action. As the Court is well aware, it was Plaintiffs Joinder Motion in the CVRA action (filed by Edwards and Paul Cassell), that I immediately preceded the purportedly defamatory denial by Ghislaine Maxwell three days later I that forms the statement at issue in this case. In 2013 , Plaintiff reJ.ocated her famitx to Florida for the QU[pose of progressing forward I :with joining the CRY A litigatio . 1 In the process of that move, she purposely destroyed I 2 I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 4 of 21 I I ies ofJler contract with Sharon Churcher and the Daily Mail showing I the payments she received for marketing her story,. Menninger Deel., Ex. B, 129: 15-130:6. I I [oumal containing between 85 and 300 a es of notes b f Plaintiff's thoughts, feel In sand emor.ies about her ast in a backyard bonfire. In her.de osition' in the Dershowitz litigation I lain tiff described her u osefiil destruction of this evidence as follows: I . The booklet iliat ~-Burned I When did ):'.OU burn it?- I In I thinK it was 2013. Me and m husband had a bonfire What did you ut in the bonfire?- I I ~- An .Kind of memories that I h~d written down about all the stuff going on . I ~- He could have been therei_,}'.es . I Q. A. I wanted to burn my memories.=I wanted to get rid of it. It was ver)'. r.ainful stuff. I Q. Other than what you had written down did you burn anything else? I don't mean the wood, when y,ou talk about burning your memories what were ou burning? I ~- I was burning like memories, thoughts, dreams that I had, just everything that was kind o · affiliated with the abuse Tendured, and there was a lot of it in there. My husband is 12rett)1 s iritual so he said tbe best thir;icr to do would be burn them •. I Is there an)'.!hing)'.ou decided to keen and not burn? I everything with me. Q. Why did you choose to move back to the United States at that time? I A. J mean, there's a couple good reasons why I moved back. You know, first and foremost I haven't seen my famil)! in a long time; and secondly, I wanted to see something happen with the -- I was trying to jo!11 the CVRA case so was hoping by moving back I would see that Rrogress. Menninger Deel., Ex. B, 130:4-14. I 3 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 5 of 21 I I I Q. Anyth.ing else that you can think ofl A. PhotograP.hs that's it. I . Ap..Qrox.imately when in 20 IJwas this bonfire? I A.. l don't know what month it wasJ I V\;; Yeah it was outsidej,J wasn't going0to do Jt in my lhdng room .. 0 o e fire . because itwas cold .out or was it as mmertime I ~. I beJieve I had just bought my house in Titusville, Florida.l fought my house in, I tlliiiK I : either got it OctoberorNovember of201'3. It would have.been around robabb:l ovember. I ~. They're evidence I Q. Did you ever look to see if)'.OU had an)'. P.ersonal notes in xour writing that.]ertain to I rofessorDershowitz? 1 Like from my old journal+the one that 1 burned? I . Dershowitz could have been inlt1Y journal, he could have been. We're talking about an 85 I page, if not more, you know, things that l had written to get my story out of my head an into pages; and yes . Dersb9wit~ could have been in there but that's uRJn the.d ouds now,, bonfire. I I A. Yes. Q. And you wrote that journal in order to collect your thoughts? I A. To get everything out of here and on to a er. I Menninger Deel., Ex. B 64:6-65:23 ; 194:2-21. 4 I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 6 of 21 I I In her first deposition in this action, Plaintiff described her purposeful destruction of this I I Q. Do you have any notes of all these _R_eo_,_ __ ~. No;"I don't. I . Where are your notes. 1\. I burned them. I W11en did you burn'them'?< I ~ : "ln a bonfire wlien llived,at·Titusville because · '!<! Did you have lawyers wl11Jiwef'ere t~senting· you at the time ou built a bonfire an i · urhed these riotes?i ·· I ~. I've been represented for a long time! but it was not under the instruction of my lawyer to do this:< My' hushand· ~alwere 'r,ettr sirituat eo le and we believed that thes I memories wefe worth burning_ So you burned. note§ of the men with whom ):'.OU had sex while you were reP.resented b I counsefin litigationllf corr~bt?i MR. EDWARDS: Object to the form'. · I 1\. This wasn't anything that was a' public doc'umefit. This was m):'. own Qrivate joum_a_I _ _ (iidn't want it anymore. So we burned it.. I Q. (!3):' MS. MENNINGER) When did you write that ·ournal?> 1 started writing it robably, in 1 don't know, I can't s I Q. So you did notwrite this journal at the time it liapRened? I You started writing this journaFarmroximately a decade after yqt! claim you finisheq I being sexually trafficked correct? I Q. And you started writing a journal after you had a lawyer correct? I A. Correct. I 5 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 7 of 21 I I Q. Including Mr. Edwards, who is sitting right here, correct? I !L_What did that ·ournal lo.QJ}like? I I . And what else? IA. lt was just a s iral noteb06k I l've, ..~9ne ~Qf()~gll.tiots o~J.hingsi ou know. can't tell you I . . .v' '. : ·ag¢$ in tHat book. I ~. No I ou show thatbook tc>' an one?i I i\ . No. I . Did you tear out ~ges ang give them to Sharon Churcher? I i\. No, I wrote -- those pages that you're talking about, l wrote for hers ecifically. She wanted to know about the Prince Andrew incident. I I So you had a green spiral notebook that you began sometime in 2011 · or 2012 .in w hidl_ >'ou wrote down your recollections about what had ha11 ened to you, and you burned that ·n a bonfire in 2013. Did I get that right? I A. You got that rjghJi I I I 6 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 8 of 21 I I Additionally, in the Dershowitz litigation, Plaintiff also described a: second notebook, a I I litigation desP.ite reguest2 ; and Plaintiff has now claimed that she does not have any diaries 011 I journals other than what she had destro):'.ed. SP.ecifically, Plaintiff testified Have you made an other notes though sincethen to hel Y.OU when you think of things? I 'l\. Yes, sometimes like I said,·sometimes when I read my affidavits and stuff like that, y() know, and I think ~!so112~thin li~~';a de~.~riptio~:pf s?~ethin~ thatlforget about , I !YOU khow what l IT!ean; tfien y , ·n ·~d' bac~;and ·J 1l~J1\vrit~~it in·th~ journal, you know . for instance, you know, what aQother gfrl would have looked like. Even though lean'~ , de11tjfy her;name,Qr qet age oranythingJike,th~t, b4~~l.~o r~me"J;q~rS ashes"o i I blonde, little things like that, but nothing -- I don't have any morejourna s I . Sometimes ..I'm a ve. visual yerison And theY. help..,_you with )'.our affid;ivits :i I I What do you do with those notes? I A. Nothing, literally nothing. They're in a notebook that if l need to write it down.1 have a C:lream notebook as well where I'll just :w.rite down mxdream~nd stuff. l do noth.ing, ng one is seeing it. I I I A. No . . Okay. You continue to make entries into it? I I 2 Menninger DecL Ex. D, Pl aintiff s Second Amended Supplemental Response And Objections To Defendant 's First Set Of Di scovery Requests To Plaintiff, RFPs I 6, 28 and 34. 7 I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 9 of 21 I I A. Not so much about Dersbowitz. It's mostly like feelings, dreams, you know, pasphings I that I've gone through. Uke I said not so much 12ertaining to Dershowitz himself. I I I Menninger Deel. Ex. B at 194:22.'.. 196: 10 M'ith res ect to the dreanfbook either Plaintiff has also destroyed this evidence after the I initiation of the litigation, or is willfully and improperly withholding it from production in the matter. I LEGAL STANDARD I Each litigant has an obligation to take reasonable measures to preserve all potentially relevant documents. That obligation arises even pre-suit, if "the party 'should have known that I the evidence may be relevant to future litigation ."' MASTR Adjustable Rate Mortgages Trust I 2006- 0A 2 v. UBS Real Estate Secs. , Inc. , 295 F.R.D. 77, 82 (S.D.N.Y.2013) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)); accord University ofMontreal Pension Plan I v. Bank ofAmerica Secs. , LLC, 685 F.Supp.2d 456, 465- 66 (S.D.N.Y.2010) abrogated on other I grounds, Chin v. Port Auth. ofN.Y. & New Jersey, 685 F.3d 135 , 162 (2d Cir. 2012). " Spoliation is 'the destruction of evidence, or the failure to preserve property for I another's use as evidence in pending or reasonably foreseeable litigation."' MASTR Adjustable I Rate Mortgages Trust, 295 F.R.D. at 82 (quoting Byrnie v. Town of Cromwell Board of Educ. , 243 F.3d 93 , I 07 (2d Cir.200 I)). A party seeking sanctions based on the destruction of evidence I must demonstrate: (I) that the party having control over the evidence had an obligation to preserve it I at the time it was destroyed; (2) that the records were destroyed with a culpable I 8 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 10 of 21 I I state of mind; and (3) that the destroyed evidence was relevant to the party's claim I or defense such that a reasonable trier of fact could find that it would support that claim or defense. Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002) 3 (quotations I omitted). The Second Circuit has held that the requisite "culpable state of mind" may encompass I simple negligence as gross negligence and most certainly covers deliberate misconduct. The degree of culpability affects the choice of remedies. See Sekisui American Corp. v. Hart, 945 I F.Supp.2d 494, 503- 04 (S.D.N.Y. 2013); MASTR Adjustable Rate Mortgages Trust, 295 F.R.D. I at 84; Orbit One Communications, Inc. v. Numerex Corp., 271 F. R.D.2d 429, 438 (S.D.N.Y. 2010). I The moving party has the burden to demonstrate both that the destroyed materials meet I the relevance standard of Rule 26(b)(l), and that such evidence would have been favorable to the discovering party. See MASTRAdjustable Rate Mortgages Trust, 295 F.R.D. at 85- 86 (citing I cases). The burden is "not onerous," id. at 86, since it is difficult to prove what is contained in I documents that have been destroyed . To require a detailed showing in such circumstances poses the danger that "the spoliator [may] profit from its" own misconduct. Id. (quoting Orbit One, I 271 F.R.D. at 440). Jfthe destruction of evidence was done in bad faith (i.e., willfully or I intentionally), that alone justifies a finding that the material that was lost was relevant to claims or defenses in the case. Residential Funding, 306 F.3d at I 09. I If the moving party meets the burden to demonstrate destruction of relevant evidence, the court has broad discretion in choosing appropriate sanctions to remedy the injury to the I 3 Residential Funding has been superseded by statute with respect Electronicall y Stored Information I ("ESI") in the 2015 amendments to 37(e) of the Federal Rules of Civil Procedure, which now require willful or purposeful destruction of ES I, as opposed to negligence or gross negligence, to impose terminating sanctions or adverse inference instruction s. Because this matter concerns the destruction ofa physical journal , not ES I that might be recoverable or avail able through other sources, Rule 37(e) is instructive but not controlling. Regardl ess, because I the destruction at issue was willful and intentional (not merely negligent or grossly negli gent), Residen1ial Funding and its progeny remain good law respectin g the willful destruction of ev idence. I 9 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 11 of 21 I I discovering party. See, Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423 , 436 (2d Cir.2001); I Zebulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N .Y.2004). The goal of the remedy is I to "(l) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore 'the prejudiced party to the same I position [she] would have been in absent the wrongful destruction of evidence by the opposing party. "' University of Montreal Pension Plan, 685 F.Supp.2d at 469 (quoting West v. Goodyear I Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)); accord Chen, 685 F.3d at 162 (quoting I Byrnie, 243 F .3d at 107). The court should determine the remedy "based on the relative fault of the party against I whom sanctions are sought and the prejudice suffered by the party seeking sanctions." Treppel, I 249 F.R.D. at 123- 24 (quoting Klezmer v. Buynak, 227 F.R.D. 43 , 51 (E.D.N.Y.2005)). The available remedies, from "least harsh to most harsh," start with ordering more discovery, and I range to cost-shifting, to adverse-inference instructions, to preclusion and, finally, to entry of a I default or dismissal ("terminating remedies"). University ofMontreal Pension Plan, 685 F.Supp.2d at 469 (citing cases). Tenninating remedies are justified "in only the most egregious I cases" for example, when "a party has engaged in perjury, tampering with evidence, or intentionally destroyed evidence by burning, shredding, or wiping out computer hard drives." I Id. at 469- 70 & n.48. I ARGUMENT I I. PLAINTIFF ADMITTED EACH ELEMENT OF INTENTIONAL SPOLIATION Plaintiff admitted at her depositions to each factor required for a finding of spoliation . .I First Plaintiff, t~arty having control over the evidence had an obli ation to Qreserve the I journal at the time it was destroyed. As Plaintiff has confessed~ she was represented by Bradley I 10 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 12 of 21 I I Edwards and Paul Cassell in 2013 at the time she burned the journal. One QUrpose of that I reQresentation was to artici ate in the then- ending CVRA Liti ation, which was filed by I Edwards and Cassell to void the non-Qrosecution agreement between Mr. EQstein and th~ Government. As fJ.&ntiff admit~;~journal aJ.i§.§lle included all of her memories, thoughts and I eelings about the time she was associated with E stein, the ve!)'. basis for her attempt to join the CVRA action. Knowing that the liti ation was ,Rending and,inoving to Florida with a I I un- e licatedj ourna satisfies the definition of destruction with a culpable state of mind. " Where a I party seeks to demonstrate intent, that intent need not be directed at spoliation of evidence to the I other party's detriment. Rather, any intentional destruction suffices." Hawley v. Mphasis Corp., 302 F.R.D. 37, 47 (S.D.N .Y. 2014); Byrnie, 243 F.3d at 107- 09 (noting that "intentional I destruction of documents in the face of a duty to retain those documents is adequate" to show a I "culpable state of mind"); Congregation Rabbinical Coll. of Tartikov, inc. v. Vil/. of Pomona, 138 F. Supp. 3d 352, 388 (S.D.N.Y. 2015). I The relevance of the documents to the pending litigation need not be proven in this case, I but nevertheless has been admitted by Plaintiff. "When evidence is destroyed in bad faith (i.e. , intentionally or willfully), that fact alone is sufficient to demonstrate relevance." Zubulake v. I UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y . 2003); Byrnie, 243 F.3d at 109; compare Fed R. Civ. P. 37(e)(2) (permitting adverse inference or dismissal of claims for intentional for I destruction of ES I, noting that "Subdivision (e)(2) does not include a req uirem ent that the court I find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivi sion can support not only an inference that the lost information was I I 1I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 13 of 21 I I unfavorable to the party that intentionally destroyed it, but also an inference that the opposing I party was prejudiced by the loss of information that would have favored its position. Subdivision I torching evidence is the definition of intentional and willful destruction with the intent to deprive I its use in known pending litigation. Plaintiffs testimony only solidifies that the presumption of relevance is proper. The I alleged defamatory statement that is central to this case is important in this context. The alleged I defamatory press release states: Each time the story is re told it changes with new salacious details about public I figures and world leaders and now it is alleged by Ms Roberts that Alan Derschowitz [sic] is involved in having sexual relations with her, which he denies. I Ms Roberts claims are obvious lies and should be treated as such and not publicised as news, as they are defamatory. I By Plaintiffs own admission, , hejournal containing her memories ke t between 201 J and 2013 that she burned ma or maY. not have mentioned Mr. Dershowitz. If it djd not it is I fil2ecific evidence that the ,claim ofsexual interactions with Ms.Dershowitz wasJabrfoated at a. I later date - in other words, an obvious lie. Likewise . any different or contrary "memories" I claims to have had sexual interactions with.go to the defense of truth - that Plaintiff's stqry changes each time it is told. Inde,ed based on information and allegations from the Dershowitz I I attorne:xs to embellish her story, including the inclusion of Mr. Dershowitz in her story. If this occurred, there is reason to suspect that Plaintiffs "thoughts and feelings" regarding these I pressures were also included in her journal I I 12 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 14 of 21 I I There is no way to recreate this journal or to reveal what Plaintiff was thinking or her I memories as contained ill ajourrfal she ke 't for herself, notto be made ublic. It clearly I contained relevant information - information that would support a claim or defense in thi s matter. Of course, we will never know because, in Plaintiffs own words, 'that's up in the clouds I now.'i It was purposefully and willfully destroyed . II. SEVERE SANCTIONS ARE APPROPRIATE I When deciding appropriate sanctions for this purposeful destruction, one must bear in I mind the three goals of sanctions for spoliation: (l) deterring the parties from engaging in spoliation; (2) placing the risk of an erroneous judgment on the party who wrongfully created the I risk; and (3) restoring the prejudiced party to the same position she would have been in absent I the wrongful destruction of evidence by the opposing party. As is apparent by the recent amendments to Fed. R. Civ. P. 37(e)(2)(B)&(C), where there has been intentional destruction of I evidence, the proper sanctions for consideration in a jury context are instructing the jury that it I may or must presume the information was unfavorable to the party orb) di smi ssing the action or enterin g a default judgment. I A. Terminating Sanctions are Appropriate "A terminating sanction is justified in only the most egregious cases, such as where a I party has engaged in perjury, tampering with evidence, or intentionally destroying evidence by I burning, shredding, or wiping out computer hard drives." Pension Comm. of Univ. of Montreal Pension Plan v. Banc ofAm. Sec., 685 F. Supp. 2d 456, 469- 70 (S.D.N.Y. 20 I 0), abrogated on I other grounds by Chin v. Port Auth. ofN.Y. & New Jersey, 685 F.3d 135 (2d Cir. 2012). I In 2013 , know ing that her goa l was to join the CYRA action by telling a story of allegedly being forced to be a "sex slave" at the age of 15, trafficked to "n umerous promi nent I American politicians, powerful business executives, foreign presidents, a well-known Prime 13 I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 15 of 21 I I Minister, and other world leaders," she Bestroxed her' rivate journal that would c9ntractict and I imReach the story she was about to tell. This type of intentional destruction of key evidence is I precisely the type of conduct that warrants the terminating sanction of dismissal of Plaintiffs claims. McMunn v. Memorial Sloan- Kettering Cancer Ctr., 191 F.Supp.2d 440, 446- 62 I (S.D.N.Y.2002) (dismissing plaintiffs claims for intentionally and in bad faith lying during depositions, destroying potentially critical evidence which could have harmed her case, I repeatedly lying and misleading defendant to prevent the deposition of key witnesses, editing I certain tapes before turning them over to defendant so that they would provide stronger evidence in plaintiffs favor, and engaging in a sham transaction to unfairly bolster her claim); Miller v. I Time- Warner Commc'ns, No. 97 Civ. 7286, 1999 WL 739528, at *2- *4 (S.D.N.Y. Sept. 22, I 1999) (granting dismissal where plaintiff deliberately erased a harmful handwritten notation and committed perjury in pre-trial proceedings); Regulatory Fundamentals Grp. LLC v. Governance I Risk Mgmt. Compliance, LLC, No. 13 CIV. 2493 KBF, 2014 WL 3844796, at *16 (S.D.N.Y. I Aug. 5, 2014) (ordering dismissal of suit and consideration of attorneys' fees and cost of entire suit for intentional spoliation finding any lesser sanction "would fail to account for the prejudice I or to sufficiently penalize [Plaintiff] or deter others from engaging in such misconduct"); Gutman v. Klein, No. 03CVI 570(BMC)(RML), 2008 WL 4682208, at* 12 (E.D.N .Y. Oct. 15, I 2008), report and recommendation adopted~ No. 03 CIV. 1570 (BMC), 2008 WL 5084182 I (E.D.N.Y. Dec. 2, 2008), affd, 515 F. App'x 8 (2d Cir. 2013) (granting default judgment for permanent deletion of files and noting "lesser sanctions such as adverse inferences are ill-suited I to a case like this, where the spoliator has, in bad faith , irretrievably deleted computer files that I likely contained important discovery information"). I 14 I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 16 of 21 I I B. Ms. Maxwell is entitled to an Adverse Inference Instruction I At a minimum , the purposeful destruction of the journal containing key impeachment evidence cou led with the destruction or withholding of the "dream book,' require the I imposition of an adverse inference instruction . An adverse inference instruction can take ma ny I forms , again ranging in degrees of harshness. "The harshness of the instruction should be determined based on the nature of the spoliating party's conduct- the more egregious the I conduct, the more harsh the instruction." Pension Comm. of Univ. of Montreal Pension Plan, 685 I F. Supp. 2d at 70. "When a spoliating party has acted willfully or in bad faith , a jury can be instructed that I certain facts are deemed admitted and must be accepted as true. At the next level, when a I spoliating party has acted willfully or recklessly, a court may impose a mandatory presumption." I : hredding document is the definition of willful conduct. In light of the admitted relevance of I the information contained in (or not contained in) the journal, the only way to place the risk of an erroneous judgment on the Plaintiff who wrongfully created the risk by burning key evidence, I and restoring Ms. Maxwell to the same position she would have been in absent the wrongful destruction of evidence is through mandatory adverse inference instructions. If the case is not I dismissed, the jury should be instructed that Plaintiff purposely aestroyed her journal, and that I the jury shou Id presume that the information contained in that journal would have supported Ms. Maxwell's contentions and be detrimental to Plaintiffs claims. I WHEREFORE, Defendant Ghislaine Maxwell request that this Court 1) dismiss I Plaintiffs claim based on her intentional destruction of evidence, or, in the alternative, 2) tender to the jury an adverse inference instruction that it should presume the information contained in I I 15 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 17 of 21 I I the destroyed documents would have supported Ms. Maxwell's contentions and been detrimental I to Plaintiffs claims. Dated: December 9, 2016 I I Respectfully submitted, I Isl Laura A. Menninger Laura A. Menninger (LM-1374) I Jeffrey S. Pagliuca (pro hac vice) HADDON , MORGAN AND FOREMAN, P.C. 150 East 101h A venue I Denver, CO 80203 Phone: 303.831.7364 Fax: 303.832.2628 [email protected] I Attorneys for Ghislaine Maxwell I I I I I I I I 16 I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 18 of 21 I I CERTIFICATE OF SERVICE I I certify that on December 9, 20 I 6, I electronically served this DEFENDANT'S MOTION FOR SANCTIONS BASED ON INTENTIONAL DESTRUCTION OF EVIDENCE via ECF on the following: I Sigrid S. Mccawley Paul G. Cassell Meredith Schultz 383 S. University Street I BOI ES, SCHILLER & FL EXN ER, LLP 401 East Las Olas Boulevard, Ste. 1200 Salt Lake City, UT 84112 [email protected] Ft. Lauderdale, FL 33301 I smccawley@ bsfllp.com mschultz@ bsfllp.com J. Stanley Pottinger I Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, 49 Twin Lakes Rd . South Salem, NY I 0590 FISTOS & LEHRMAN, P.L. [email protected] I 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 brad@ pathtojustice.com I Isl Nicole Simmons Nicole Simmons I I I I I I I I I 17 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 19 of 21 I I I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK I -------------------------------------------------)( VIRGINIA L. GIUFFRE, I v. Plaintiff, 15-cv-07433-RWS I GHISLAINE MA)( WELL, Defendant. I --------------------------------------------------)( I Declaration of Laura A. Menninger in Support of Defendant's Motion For Sanctions Based On Plaintifrs Intentional Destruction Of Evidence I I, Laura A. Menninger, declare as follows: I 1. I am an attorney at law duly licensed in the State ofNew York and admitted to practice in the United States District Court for the Southern District of New York. I am a I member of the law firm Haddon, Morgan & Foreman, P.C., counsel of record for Defendant I Ghislaine Maxwell in this action. I respectfully submit this Declaration in Support of Defendant's Motion for Sanctions Based on Plaintiffs Intentional Destruction of Evidence. I 2. Attached as Exhibit A (filed under seal) is a true and correct copy of Plaintiff's I Second Amended Supplemental Response and Objections to Defendant's First Set of Discovery Requests to Plaintiff, Interrogatory Response 3, dated April 29, 2016. I 3. Attached as Exhibit B (filed under seal) are true and correct copies of excerpts from, I the Januarx 16, 2016 de osition of Virginia Rob{!rts Giuffre in the Edwards et. al v. Dershowitz, I I I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 20 of 21 I I I 4. Attached as Exhibit C (filed under seal) are true and correct copies of excerpts frs>m the May 3, 2016 deposition ofVirg!ttia Giuffre desi nated Con:(idential under the Protective I 5. Attached as Exhibit D (filed under seal) is a true and correct copy of Plaintiffs I Second Amended Supplemental Response and Objections to Defendant's First Set of Discovery I Request to Plaintiff, dated April 29, 2016. I declare under penalty of perjury that the foregoing is true and correct. I Dated: December 9, 2016. I sl Laura A. Menninger Laura A. Menninger I I I I I I I I I I 2 I  Case 1:15-cv-07433-LAP Document 555 Filed 01/19/17 Page 21 of 21 I I I CERTIFICATE OF SERVICE I certify that on December 9, 2016, l electronically served this Declaration of Laura A. Menninger in Support of Def endant's Motion For Sanctions Based on Plaintiff's Intentional I Destruction ofEvidence via ECF on the following: Sigrid S. Mccawley Paul G. Cassell I Meredith Schultz BOIES, SCHILLER & FLEXN ER, LLP 383 S. University Street Salt Lake City, UT 841 12 401 East Las Olas Boulevard, Ste. 1200 [email protected] I Ft. Lauderdale, FL 3330 I [email protected] [email protected] I Bradley J. Edwards J. Stanley Pottinger 49 Twin Lakes Rd. FARMER, JAFFE, WEISSING, EDWARDS, South Salem, NY I 0590 I FISTOS & LEHRMAN, P.L. 425 North Andrews Ave., Ste. 2 [email protected] Ft. Lauderdale, FL 33301 I [email protected] Isl Nicole Simmons Nicole Simmons I I I I I I I I I 3 I