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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2
3
4 Plaintiff, New York, N.Y.
5 v. 15 Civ. 7433(RWS)
6 GHISLAINE MAXWELL,
7 Defendant.
8
9 March 17, 2016
2:18 p.m.
10
Before:
11
HON. ROBERT W. SWEET,
12
District Judge
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APPEARANCES
14
BOIES, SCHILLER & FLEXNER LLP
15 Attorneys for Plaintiff
BY: SIGRID S. McCAWLEY
16
HADDON MORGAN AND FOREMAN, P.C.
17 Attorneys for Defendant
BY: JEFFREY PAGLIUCA
18 LAURA A. MENNINGER
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20
21
22
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24
25
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1 THE COURT: Thank you all very much. I'm sorry for
2 the inconvenience that I have imposed upon you. I'm sorry
3 about the inconvenience that you have imposed upon me.
4 But having said all of that, this really is the first
5 time that we've had an opportunity, I think, to get together on
6 this case. And let me just say, I think -- I mean, I'm not
7 sure but I think I understand the difficulties of this case.
8 There is an emotional element, obviously, throughout the case
9 on both sides, and I understand that. Fortunately, we're
10 blessed by excellent counsel and it would be nice if they can
11 avoid adopting the emotional flavor of their clients, and I
12 presume that they will be able to do that, it certainly will
13 help, because these issues are going to be difficult and I'm
14 well aware of it.
15 Now, at the outset, there is some discussion in these
16 papers about meet and confer. Let me make clear what I would
17 like from this day forward. On any discovery issues, I would
18 like to have a meet and confer. Now, I understand that defense
19 counsel are living in God's country and they're not cursed with
20 the metropolitan residence. I salute their good judgment in
21 that. And so I will say that I will not require you to meet in
22 person, but I will require you to meet.
23 And I would say this. If you have a meet and confer,
24 I would like to have correspondence between the parties as to
25 what the subject is so that there is an agreed agenda that's
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1 written and we know that both sides know what it is, and that
2 will help me if, ultimately, the problem gets back to me. So I
3 would say exchange writing as to what it's going to be and have
4 a meeting. It doesn't have to be in person, but it certainly
5 has to be a significant meeting; it can't be just one
6 ten-minute telephone call.
7 So that's how I feel about the meet and confer.
8 Now, I'm not going to get into whether that's relevant
9 or not to the problems which we face today. That's just going
10 forward. As I say, I do hope that you all can -- it won't be
11 easy, but if you deal with these problems as the excellent
12 professionals that you are without the emotional implications,
13 having said that.
14 Now, how to go forward today? My thought is the
15 following. I have read your papers, and to say that I
16 understand the problems would be, I guess, a lie, but I'm
17 trying and you'll help me. I have a list of what I think our
18 issues are and I would like to go through this with you, and
19 then when I'm finished, if we have missed something, I'm sure
20 you will correct me. And I'd be pleased to hear if I determine
21 something, if you think that I'm wrong, that's fine, too. I
22 mean, you can tell me why you think I'm wrong.
23 Now, the first problem is the document -- the issue
24 about improper privilege claims. As I understand that issue,
25 it is the presence of Gow, Cohen and maybe somebody else as
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1 defeating the privilege, on the one hand. On the other hand,
2 the assertion by the defense that their participation as
3 whatever they are, managers, public relations people, whatever,
4 is necessary for the rendering of legal advice.
5 Parenthetically, there is a subtext there about whose
6 law applies. Let me say, I think we are going to apply New
7 York law in this case. British law may become relevant in some
8 way or other down the road, but for this privilege purpose, I
9 think that's where we are.
10 I think what I would like is I would like any
11 materials that -- the obligation to establish this privilege is
12 obviously Ms. Maxwell's, and I would like any materials that
13 she wants to present to me about these meetings to establish
14 that it was necessary for the rendering of legal advice, I'll
15 review those materials in camera and try to reach a decision.
16 I may need something further after I have looked at them, but I
17 think that's the way I ought to deal with that particular
18 privilege issue.
19 There is a list of documents as to which objections
20 have been made on a variety of bases. I will say probably a
21 catalog of every objection known to the mind of excellent
22 attorneys, and I think we will try to deal with those this
23 afternoon and maybe we'll fail, but let's put those aside just
24 for the moment.
25 The question about a protective order, of course there
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1 should be a protective order in this case. You are good
2 lawyers and you have been around this track more times than I
3 have and so you can prepare consensually a better protective
4 order than I can, and I urge you to do that. And, in fact, I
5 will give you two weeks to do that. Should you fail, you can
6 present whatever materials you wish to me and I will decide
7 what the protective order is going to be. That's not a good
8 idea because you know the case better than I do, obviously, and
9 so I urge you to resolve it by your litigation skills and not
10 leave it up to the ignorant district court judge who doesn't
11 really get into this kind of thing very often. So you run a
12 risk if you leave it to me.
13 Now, I would say two weeks, and then if you can't get
14 an agreement, maybe three weeks from now we wrestle with that.
15 Hopefully we won't. I have to do that.
16 The deposition -- the defendant of course will be
17 deposed, and we can work out right now when. Obviously, you
18 don't want that deposition until the protective order is
19 completed. So what do we do about that? Do you want to deal
20 with that today, the actual date of the deposition, or should
21 we pass that until we accomplish the protective order? What do
22 you all think about that?
23 MS. McCAWLEY: Can I be heard on that, your Honor?
24 This is Sigrid McCawley. I am counsel for Ms.
25 With respect to the deposition date, the 25th was the
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1 date that my opposing counsel proposed as possibly being
2 available. So we set it for that date, which is next Friday.
3 We also offered to hold that deposition transcript confidential
4 until such time as the protective order could be issued so that
5 there is no barrier to us being able to take this deposition.
6 THE COURT: How about that? Is that OK?
7 MR. PAGLIUCA: Frankly, it is not, your Honor, and the
8 reason is we, clearly from the papers submitted so far and the
9 exchange of counsel, we have a significant disagreement at this
10 point as to what the word "confidential" actually means, and we
11 have proposed to the plaintiff a protective order that we
12 believe is appropriate and neutral --
13 THE COURT: Well, maybe I can -- can we get over -- if
14 that's the primary issue on the protective order, can we deal
15 with that now?
16 MR. PAGLIUCA: I think there is a secondary -- well,
17 it may not even be secondary. There is another issue that is
18 directly related to that, your Honor, and that is the lack of
19 production of documents from the plaintiff. The Court has not
20 seen these papers yet, but there are in my view significant
21 deficiencies with the Rule 26 disclosures. There have been
22 failure to produce documents. And it is unfair at this point
23 to push these depositions forward without the required exchange
24 of discovery.
25 THE COURT: Let me ask the plaintiff. You really --
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1 MS. McCAWLEY: Could I be heard on that? Thank you,
2 your Honor. I'm sorry, I didn't mean to interrupt you.
3 THE COURT: What do you think?
4 MS. McCAWLEY: Right. The issue is so I issued my
5 deposition notice before they even served discovery requests.
6 THE COURT: OK. All right.
7 MS. McCAWLEY: I've done 3,000 pages. They've done
8 two emails.
9 THE COURT: Look, doesn't it make sense to resolve any
10 document discovery issues perhaps before the deposition?
11 MS. McCAWLEY: I don't think so, your Honor. I want
12 the testimony of this defendant in order to move this case
13 forward. Our discovery closes in July. I issued my discovery
14 requests in October. I have not gotten the deposition of the
15 defendant yet. This is a date she is available. She is not
16 leaving the country. She is not going anywhere. I have her in
17 town next Friday.
18 I'll even agree to their protective order if it means
19 I can get her deposition, your Honor. I just need to get this
20 case moving forward. I need one deposition, the deposition of
21 the defendant in this case, who has called my client a liar.
22 We are entitled to depose her and see if she is going to answer
23 the questions about why she was
24 THE COURT: All right. OK.
25 MS. McCAWLEY: I am entitled to answers.
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1 THE COURT: Well --
2 MR. PAGLIUCA: Your Honor, I think this is a good
3 meeting and it is a meeting that should have happened a long
4 time ago. Let me say to the Court that we proposed to meet
5 with plaintiff's counsel early on in this case to put together
6 a discovery schedule that made sense. We proposed that orally
7 and in writing. That proposal was ignored and rebuffed. And
8 counsel for the plaintiff then unilaterally scheduled a bunch
9 of depositions without conferring on dates. Unilaterally,
10 here's the dates, here are the depositions. We then tried to
11 work through that issue, at the same time trying to work
12 through the protective order issue and the document issue, and
13 we get no response. And I think the agenda here is to gain a
14 tactical advantage by not responding to these requests.
15 THE COURT: Well, I can't believe that lawyers would
16 seek a tactical advantage. I can't believe such a thing.
17 MR. PAGLIUCA: I am shocked.
18 THE COURT: OK. Tell you what we're going to do.
19 We'll -- three weeks, let's see. Her deposition -- this
20 question about document production, that hasn't been teed up,
21 so I don't know --
22 MS. McCAWLEY: And can I be heard on that really
23 quickly? I mean, If that were the standard, that they could
24 wait to --
25 THE COURT: No. It hasn't been teed up, I agree.
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1 (Pause)
2 OK. Then I think what we should do is I'm assuming we
3 will resolve the protective order problem we've sort of slug
4 over the -- can we resolve what's confidential? Is that
5 possible? Could we do that this afternoon, or is that too
6 complicated?
7 MS. McCAWLEY: Your Honor, I can have the deposition
8 of the defendant in this case and move this case forward. I
9 will agree to their protective order. I just want that
10 deposition.
11 THE COURT: Yes.
12 MS. McCAWLEY: It is that important to me.
13 THE COURT: I get your point. I understand that. But
14 at the same time, I think, given the nature of all that lies in
15 this, I think it is fair to say no side would like to have this
16 aired, and so we've got to have a protective order that
17 everybody feels comfortable with.
18 MS. McCAWLEY: Your Honor, you can today enter the
19 protective order that they submit. I will disregard my
20 objections if I get the deposition.
21 THE COURT: Will you agree now to the protective
22 order?
23 MS. McCAWLEY: Yes. If it means I can get her
24 deposition, yes, I will do that.
25 THE COURT: Oh, OK. Good. Well, that solved that.
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1 MR. PAGLIUCA: It is not as simple as that, your
2 Honor, because this quid pro quo, I'll agree to their
3 protective order if I can have the deposition on the 25th,
4 doesn't solve the problem.
5 THE COURT: At least we've separated it. She has
6 agreed to the protective order. OK? So that's done. OK?
7 Now, why can't we have her deposition upon, whatever
8 it is, a week from Friday?
9 MS. McCAWLEY: Friday, the 25th, this coming Friday, a
10 week from tomorrow.
11 THE COURT: Oh, a week from tomorrow, yes.
12 MS. McCAWLEY: Yes.
13 MS. MENNINGER: Your Honor, we served discovery
14 requests on plaintiff on February 12th.
15 THE COURT: Well, look, that's nice. That's good.
16 But I don't have that, and I think she's right that there is no
17 rule that says you have to get your discovery requests
18 satisfied before the deposition, so
19 MS. MENNINGER: Your Honor, the responses were due
20 last night yesterday, so that is prior to Ms. Maxwell for the
21 25th. However, as a part of producing that discovery response,
22 they have said they're going to take a month to roll out their
23 production, not just
24 THE COURT: Look. I'll tell you what let's do. I
25 don't have that, but let's -- we'll hold the deposition date.
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1 When we get through with the rest of this stuff, we'll find out
2 if there is something in particular that you want prior to next
3 Friday and see what that is and see if we can get it. How is
4 that?
5 (Pause)
6 OK. Who pays for what and counsel, all of that?
7 Those are interesting problems and who knows how they all come
8 out. I think all of that is best served by reserving them
9 until the conclusion of the case, which is what I shall do.
10 The plaintiff wants to produce on a rolling basis and
11 to amend or add to the privilege log as the production goes
12 forward. I don't see any problem with that.
13 MS. MENNINGER: Your Honor, that's actually the issue
14 I was just alluding to. I understand -- and I have said I
15 don't have a problem with plaintiff producing her documents
16 over the course of the month because she has said that it is a
17 hardship for her to produce them all last night, which is when
18 they were due. However, she's trying to take our client's
19 deposition in the middle of her rolling production, in other
20 words, show up at the deposition with the documents she happens
21 to get --
22 THE COURT: That's what I'm saying. Maybe what we'll
23 do is to deal with the document production issue separately.
24 MS. MENNINGER: OK.
25 THE COURT: And if there are some documents that
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1 really seem to be important and they cannot be produced, then
2 maybe we'll put over the -- we'll see how that works.
3 MS. McCAWLEY: Your Honor, I may be able to short
4 circuit this.
5 THE COURT: Pardon me?
6 MS. McCAWLEY: I may be able to short circuit this a
7 little bit. We produced 3,000 pages last night. We are
8 continuing that production. We are moving as fast as we can.
9 We produced a privilege log with over 134 entries on it. We
10 are continuing to move that forward as quickly as we can.
11 With respect to her deposition, your Honor, I'm happy
12 to provide them in advance every document I will be using at
13 her deposition. In other words, if that is their issue, if it
14 means I can get her deposition next Friday, I will share with
15 them any document I intend to use at that deposition.
16 THE COURT: That seems to solve the problem, don't you
17 think?
18 MS. MENNINGER: Your Honor, I have to disagree. I got
19 this responsive objection last night at 9:30 p.m., while I was
20 here in New York. I've taken a look at it, and I can give your
21 Honor a sense of the types of objections that plaintiff has
22 lodged to our document request. For example, their client sold
23 her diary to Radar Online. It was published on Radar Online.
24 This diary contains plaintiff's allegations against my client.
25 So I asked for the diary that was sold to Radar Online.
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1 THE COURT: You get it.
2 MS. MENNINGER: It is copyright and proprietary
3 protected. We're not going to produce it. So that's the kind
4 of example --
5 THE COURT: No. You get it.
6 MS. McCAWLEY: She doesn't have a diary. She might be
7 referring to something else. I mean, my client doesn't have a
8 diary to produce. She doesn't have one. Those were
9 handwritten notes that she gave a reporter. She doesn't have
10 one.
11 THE COURT: So you are saying --
12 MS. McCAWLEY: That request is broader. I mean
13 THE COURT: No.
14 MS. McCAWLEY: I didn't know we were going to be
15 addressing my requests today --
16 THE COURT: as to the diary, you say it doesn't
17 exist. There is no diary, there are no notes, and whatever
18 there is has been the subject of the printed material?
19 MS. McCAWLEY: Yes.
20 MS. MENNINGER: Excerpts -- excerpts, your Honor, with
21 my client's name on them in plaintiff's handwriting were sold
22 to Radar Online, not the entire document. And when I asked for
23 the entire document, I was told that it is proprietary and
24 copyright protected.
25 THE COURT: What is "proprietary"?
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1 MS. McCAWLEY: I think she's referring to a broader
2 request. My client doesn't have a diary, which is what she's
3 addressing right now. I don't have my requests in front of me,
4 your Honor. We were here on their requests. But if you want
5 to read the whole request, I can try and remember what
6 THE COURT: What are we talking --
7 MS. McCAWLEY: Did they say I was withholding
8 documents? I don't think I said I was withholding documents on
9 that request. But, again, I don't have it in front of me and I
10 apologize.
11 MS. MENNINGER: The request number 16 reads: "Any
12 diary, journal, or calendar concerning your activity between
13 '96 and '02."
14 Response: Ms. ejects to this request to the
15 extent it seeks proprietary- and copyright-protected material.
16 Ms. objects in that it seeks information protected by
17 the attorney-client privilege, the attorney work product
18 privilege, the joint defense, interest privilege, the agency
19 privilege, the investigative privilege, the spousal privilege,
20 the accountant/client privilege, and any other applicable
21 privilege."
22 THE COURT: Hot dog. I tell you, that's great.
23 MS. McCAWLEY: But did I say I didn't have --
24 THE COURT: Shall we use that as the standard
25 objection to every document request and then let's forget about
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1 it? OK, let's do this.
2 MS. McCAWLEY: Your Honor, may I be heard on just one
3 point on this issue?
4 If the standard were that someone could wait in a case
5 to request documents and then push off depositions by
6 continuing to file new requests, it's apparently --
7 THE COURT: Yes. I hear you. I understand that
8 point. Look, obviously if there are documents that are covered
9 by the privilege, they have to be identified and logged. So
10 that's the privilege.
11 I don't know, what is this proprietary thing? What is
12 that all about?
13 MS. McCAWLEY: To the extent she has commercially
14 valuable material that she has written, that's covered by --
15 it's covered by the protective order basically, that it would
16 be produced in a confidential format with a copyright-protected
17 format. So it is a general objection --
18 THE COURT: So she will produce that, she will produce
19 everything --
20 MS. McCAWLEY: If she has something like that, yes.
21 Like I said, we produced 3,000 pages yesterday.
22 THE COURT: And calendars and all of the rest of them?
23 MS. McCAWLEY: To the extent she has any of that, we
24 will produce it, your Honor.
25 THE COURT: All right. In other words, you are going
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1 to produce everything except anything that you have that you
2 claim privilege as to which you will log?
3 MS. McCAWLEY: Yes. We have been logging --
4 THE COURT: Well --
5 MS. MENNINGER: Your Honor, on this particular one,
6 she says her client does not have any nonprivileged documents
7 created during the time period responsive to this request, and
8 then there are no privileged documents related to this log on
9 the privilege log. So I don't have any way to read this
10 request in a privilege log and figure out whether there are
11 noncopyright materials that weren't withheld or there are
12 privileged because all of these privileges were raised --
13 THE COURT: I take it that what's being said is that
14 she has no privileged documents that would be covered by that
15 request?
16 MS. MENNINGER: That's not what the objection says.
17 And, your Honor, since she sold her handwritten notes about my
18 client to Radar Online, I know they exist because they were
19 excerpted on the Internet.
20 THE COURT: Yes, but she said she doesn't have them.
21 She said -- I mean, correct me if I am wrong.
22 MS. McCAWLEY: No, she doesn't have them. But, your
23 Honor, I am happy to have -- first of all, she hasn't conferred
24 on these issues that we are talking about here today. I am
25 happy to address them fully. I feel very comfortable with our
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1 discovery production in this case. We will continue to roll it
2 out; we have done it timely. Unlike like the defendants, who I
3 served their discovery requests October 27th, your Honor. We
4 are now in March. I received two emails, two emails in
5 response. I produced 3,000 pages --
6 MS. MENNINGER: Your Honor, she is --
7 (Unintelligible crosstalk)
8 THE COURT: Ladies, we're not going to get anywhere if
9 we "who struck John."
10 MS. McCAWLEY: I understand, your Honor.
11 I think I proposed something very fair by saying that
12 I would share with her any document I intend to use at that
13 deposition. I just need the deposition.
14 THE COURT: I understand. I got you. OK.
15 Now, you will identify any document -- I mean, you
16 tell them -- give them any documents that you are going to use
17 in the deposition.
18 MS. McCAWLEY: Yes.
19 THE COURT: OK. Now, is there -- the business of this
20 production on -- you are going to have to -- well, wait a
21 minute. Let me put it this way. The objections to this 16 are
22 overruled except for the privilege. OK?
23 MS. MENNINGER: Your Honor, I've proposed dates for my
24 client to be available in two or three weeks, once we have
25 received a complete document production, which was due last
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1 night, and I have been told we're not going to talk about dates
2 in two or three weeks. We haven't asked to set them out into
3 May or June. We've just asked for the documents that were due
4 last night to be produced to us before our client's deposition.
5 This isn't some kind of game. It's just she's been litigating
6 this case for seven years --
7 THE COURT: OK. Well, we've dealt with the first
8 objection. Now, is there another one?
9 MS. McCAWLEY: Right. So we're here on my motion to
10 compel production of documents. I am just getting a little
11 confused because I don't -- we are here -- my motion to compel
12 production of documents from her based on my request that --
13 THE COURT: Let's not worry about the --
14 MS. McCAWLEY: OK. I just wanted to be clear. I
15 don't have in front of me the request that she is referring to.
16 THE COURT: OK. Anything else that you think you need
17 besides the documents she is going to use, the response to 16?
18 Anything else --
19 MS. MENNINGER: Your Honor --
20 THE COURT: -- that is critical for the deposition?
21 MS. MENNINGER: Your Honor, these were filed last
22 night at 9:30 p.m., the 3,000 pages were produced to my office,
23 which is in Colorado. I haven't looked at the 3,000 pages that
24 were produced last night. I will have to ask leave of the
25 Court to go back, look at the documents that were produced and
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1 see what I am missing.
2 THE COURT: All right. If you want to, you can come
3 back on Thursday next week and we can argue about whether or
4 not the deposition should go forward on Friday.
5 MS. MENNINGER: OK.
6 THE COURT: That is all right with me.
7 MS. MENNINGER: That is acceptable, your Honor.
8 THE COURT: OK. So maybe we've solved that problem.
9 OK. Maybe.
10 Now, on the improper objections by the defendants. I
11 suppose I can assume that the defendants' objections are just
12 exactly the same as the plaintiff's objections.
13 MR. PAGLIUCA: No, your Honor. They are not.
14 MS. McCAWLEY: Oh, I'm sorry. This is my motion to
15 compel. Can I just address it initially so that I can lay out
16 for the Court what the issues are that we are raising on the
17 motion to compel?
18 THE COURT: I'm sorry.
19 MS. McCAWLEY: This is my motion to compel now. Can I
20 address -- am I able to address that?
21 THE COURT: Yes.
22 MS. McCAWLEY: So with respect to our motion to compel
23 the documents from the defendant, as you know, your Honor,
24 there are two main objections that I think have to be overcome
25 in order for us to get that production properly. The first
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1 main objection is the fact that they are objecting to the time
2 period. So we have sought requests from 1999, which is in
3 around the time when my client contends she was involved with
4 these individuals, to the present. They objected that that
5 time period is overly broad. They only agreed to produce for
6 the period of 1999 to 2002 and for one month, from December 31,
7 2014 to January 31, 2015. So they cut out all the years in
8 between and anything post January 31, 2015.
9 Now, with respect to your Honor maybe saying why would
10 that time period be relevant, the entire time period is
11 relevant for a number of reasons. First, in 1999, that's when
12 my client first recalls being --
13 THE COURT: We can agree think we can agree at
14 the outset that '99 to what is it?
15 MS. McCAWLEY: 2002.
16 THE COURT: 2002 is relevant.
17 MS. McCAWLEY: Right.
18 THE COURT: So what we're talking about is the what
19 happened in 2002?
20 MS. McCAWLEY: My client was sent to Thailand by
21 Mr. Epstein and Ms. Maxwell for a training and to pick up
22 another --
23 THE COURT: So she is no longer --
24 MS. McCAWLEY: And she left. She fled to Australia.
25 THE COURT: OK.
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1 MS. McCAWLEY: So with respect to these requests, I
2 just want to -- you know, because the Court has mentioned this
3 and it is worthy of referencing, that if you look at the
4 defendants' request to us, they actually request a longer time
5 period; they request from 1996 to the present. So while they
6 don't want us to -- they don't want to produce to us except for
7 that short window, they are requesting the entire period. In
8 some cases they request and I did a chart. Your Honor,
9 would you mind if I just pass this up to you for reference?
10 THE COURT: OK.
11 MS. McCAWLEY: I did a chart, I believe it is on page
12 10, and it has for you the various requests and what the time
13 periods are, and for many of the requests there is no time
14 period at all.
15 MR. PAGLIUCA: I have it. I don't need it.
16 MS. McCAWLEY: Oh, you have that?
17 MR. PAGLIUCA: I do not need it.
18 MS. McCAWLEY: OK. I'm sorry.
19 So that time period shows that many of those requests
20 don't have a time period at all; so it is even broader, from
21 infancy to present. So, in fairness, our requests are 1999 to
22 the present, which we believe is the critical time period.
23 Now, what happens in 2002? So my client does flee to
24 Australia away from these individuals, but the conduct
25 continues. So we have, for example, the law enforcement trash
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1 pulls that show the message pads of the back and forth of
2 arranging these underaged minors to come for massages, things
3 of that nature. We have the flight logs that show Ms. Maxwell
4 flying 360 times with Jeffrey Epstein, 20 of which were with my
5 client when she was underage. We have the Palm Beach police
6 report, which shows over 30 minors who reported during that
7 time period, to up until now 2006, being abused in that
8 circumstance in Palm Beach. Then we have the arrest that
9 happens of Jeffrey Epstein in 2006.
10 Thereafter, my client in 2008 is -- I'm sorry, she
11 receives from the U.S. government a victim notification letter.
12 At that point, in 2009, Ms. Maxwell's deposition is sought in
13 underlying civil cases. She flees from that deposition, says
14 her mother is ill in England, she has to leave the country,
15 cannot be deposed. She then shows up three weeks later at
16 Chelsea Clinton's wedding. So clearly she was around, she was
17 able to do something, but she avoided that deposition. Her
18 testimony was never taken in that case.
19 So that's in 2009. Then we have in 2011 my client is
20 interviewed by the FBI about the issues that have happened.
21 Then we have in 2011 Ms. Maxwell starts issuing different
22 statements to the press. She continues that, issues a
23 statement in 2015, which is the statement that we are here
24 about in this case.
25 So I contend, your Honor, that all of those years have
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1 relevant information in them with respect to my client.
2 THE COURT: OK. I understand.
3 Let's hear from the defendant.
4 MR. PAGLIUCA: So, your Honor, I have tried to refrain
5 from responding in kind, but the problem here is all of this --
6 the agenda behind all of this is not really the issue in this
7 case but it is to make inflammatory statements like counsel
8 just made as fact when they are speculation, at best, your
9 Honor, and to pack into the record things that are demonstrably
10 not true but counsel says them like they are true and then
11 refers to her own declaration to support the fact of what she
12 is saying may or may not be true. So let's get to the issue
13 here in terms of the relevant timeframe.
14 First, the plaintiff goes to Thailand on her own
15 volition, gets married, and moves to Australia, where she
16 resides for some 12/13 years after, and has no contact with
17 Ms. Maxwell or Mr. Epstein. So everything that happens from
18 2002 forward has absolutely nothing to do with the plaintiff in
19 this case, and she has absolutely no personal knowledge about
20 what did or didn't happen in Florida or elsewhere from that
21 timeframe forward.
22 You know, I carefully, your Honor, read your ruling on
23 the motion to dismiss, and I believe that you characterized the
24 issue in this case very narrowly, and that is is what the
25 plaintiff said about Ms. Maxwell, and from 1999 to 2002, true
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1 or not. Those two individuals have the facts that relate to
2 that, and anything outside of that, quite frankly, is opinion
3 and not a subject matter of this litigation.
4 Now, you have to focus not only on this expansive
5 timeframe in which the plaintiff is not even in this
6 hemisphere, which is combined with the overbroad requests that
7 don't ask for things that might be arguably relevant under a
8 404(b) analysis -- you know, for example, did this happen with
9 Ms. Maxwell and someone else in 2005, let's say -- those aren't
10 what the requests are. The requests are for all communications
11 for 17 years with plug in the individual, all documents
12 relating to whatever you want to plug in there for 17 years.
13 And so those two things combined create a grossly overbroad and
14 unmanageable document request. Hence, the objections.
15 Now, had we had the ability to confer about this, we
16 may have been able to get down to, here, these are really the
17 relevant timeframes, or you need to modify your requests for
18 production to say things like any communication with Jeffrey
19 Epstein related to the plaintiff, any communication with this
20 person related to the plaintiff. But that's not what the
21 requests are. And so what you are left with is an unmanageable
22 pile of requests for production of documents.
23 I will note, your Honor, so the Court has this in
24 context, there are 39 requests that have been proposed to
25 Ms. Maxwell. She has no responsive documents, and I've so
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1 indicated to 17 of those requests. So we then winnow this down
2 to the ones that we are objecting to for very good reason. The
3 timeframe we have proposed is the appropriate timeframe. If
4 there are narrowly tailored requests for production for
5 something that may be relevant outside that timeframe, then
6 they should propose that and not what they are proposing
7 currently, which makes the entire process unwieldy and
8 unreliable.
9 MS. McCAWLEY: Your Honor, the underlying issue in
10 this case is whether or not Ms. Maxwell lied when she said my
11 client was not subject to the abuse that she said she was
12 subject to. So in order to prove that, for defamation with
13 malice, we have to prove that my client was abused by these
14 individuals, that these individuals did take advantage of her
15 in the way that she expressed.
16 What's relevant to that is the sexual trafficking
17 ring. If after my client left they are also trafficking other
18 underaged girls repetitively, that is relevant to prove the
19 truth of my client's allegations as well. We are entitled to
20 that in discovery, your Honor. One of the requests is the
21 documents relating to communications of Jeffrey Epstein. If
22 she is e-mailing Jeffrey Epstein about the girls she's going to
23 send over to him in 2004, before he is arrested, that's
24 relevant to my client's claim, your Honor. So we shouldn't be
25 told that we're not entitled to these documents or that we're
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1 only entitled to two emails out of all of our requests.
2 In addition, he says that there are 17 requests that
3 they have no documents for, your Honor, but, again, they have
4 restricted the time period to this very short window and then
5 they answered in their responses. OK. So --
6 MR. PAGLIUCA: That is not true. If you read --
7 actually read the response, there is no restriction because we
8 have looked and there are no documents. We're actually trying
9 to move this ball forward, your Honor, and what's happening
10 here is we keep getting sucked back into this morass of maybe
11 something happened. If you listen to the words that counsel is
12 saying, your Honor, it is very illustrative of the fishing
13 expedition. If there is this, then it is relevant. But that
14 is not what they are asking for. And you have to go back to
15 the request. "All documents" -- Request No. 1: "All documents
16 relating to communications with Jeffrey Epstein from 1990 to
17 present." Well, that's not all documents concerning
18 trafficking or underaged girls, that's all documents relating
19 to, which could be anything in the universe.
20 Those are the reasons why I objected.
21 Request No. 3: "All documents relating to
22 communications with Andrew Albert Christian Edward, Duke of
23 York, from 1990 to present." You know, what the heck does a
24 communication with the Duke in 2013, any old communication,
25 have to do with anything in this case? Nothing. If you
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1 said -- if you give me a request for production of documents
2 that said give me any documents that talk about your press
3 release with the Duke, well, that might be relevant and
4 discoverable, but these are grossly overbroad.
5 If they had conferred with us, we would have been able
6 to narrow this down, but they haven't because there is an
7 agenda here that, quite frankly, I don't understand, your
8 Honor. But what I think it is is to simply pack the record,
9 the written record and the oral record, with these very
10 specious, quite frankly, disgusting allegations about my
11 client, and that's not what we're here for. If they want
12 something, they should ask for it specifically. If they just
13 want to, you know, kind of throw things around -- if this, then
14 that -- then that's what we're about here.
15 MS. McCAWLEY: Your Honor --
16 THE COURT: All right. I think I understand this
17 issue.
18 What else do we have? We have the timeframe and the
19 specificity.
20 MS. McCAWLEY: Right. So, your Honor, there is the
21 timeframe for the request, and then, right, I assume that they
22 are alleging that these are overbroad in some way as
23 THE COURT: I would rather think I just heard that.
24 MS. McCAWLEY: Right. Exactly. So, your Honor, just
25 to touch on that very quickly. Not only -- and you will see it
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1 in our papers, but we also give specific examples of why these
2 are relevant, for example, and not overbroad. For example, two
3 of the people we asked for documents and communications with,
4 and , when they were asked in
5 their depositions about Ms. Maxwell sexually trafficking
6 underaged girls, both of those individuals took the Fifth. If
7 there are documents between Ms. Maxwell and
8 discussing those issues at any time from 1990 to present, we
9 want those documents, your Honor. And while they say that
10 day-to-day communications with Jeffrey Epstein wouldn't be
11 relevant, they would. If they're communicating on a daily
12 basis, that's relevant.
13 THE COURT: I understand that point.
14 MS. McCAWLEY: So, your Honor, those are the two key
15 issues as I understand it, the time period and then the
16 overbreadth of the request, that they have been objecting to.
17 And, your Honor, we just obviously want discovery in
18 this case to move it forward.
19 THE COURT: All right. So we've got that. I
20 understand that. Is there any other broad category?
21 MS. McCAWLEY: No. Those are the two issues, as I
22 understand it, the date range which they've limited --
23 THE COURT: If we resolve those two, have we resolved
24 the objections to the document demand?
25 MS. McCAWLEY: That's my understanding, that they
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1 should be produc
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2
3
4 Plaintiff, New York, N.Y.
5 v. 15 Civ. 7433(RWS)
6 GHISLAINE MAXWELL,
7 Defendant.
8
9 March 17, 2016
2:18 p.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
16
HADDON MORGAN AND FOREMAN, P.C.
17 Attorneys for Defendant
BY: JEFFREY PAGLIUCA
18 LAURA A. MENNINGER
19
20
21
22
23
24
25
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1 THE COURT: Thank you all very much. I'm sorry for
2 the inconvenience that I have imposed upon you. I'm sorry
3 about the inconvenience that you have imposed upon me.
4 But having said all of that, this really is the first
5 time that we've had an opportunity, I think, to get together on
6 this case. And let me just say, I think -- I mean, I'm not
7 sure but I think I understand the difficulties of this case.
8 There is an emotional element, obviously, throughout the case
9 on both sides, and I understand that. Fortunately, we're
10 blessed by excellent counsel and it would be nice if they can
11 avoid adopting the emotional flavor of their clients, and I
12 presume that they will be able to do that, it certainly will
13 help, because these issues are going to be difficult and I'm
14 well aware of it.
15 Now, at the outset, there is some discussion in these
16 papers about meet and confer. Let me make clear what I would
17 like from this day forward. On any discovery issues, I would
18 like to have a meet and confer. Now, I understand that defense
19 counsel are living in God's country and they're not cursed with
20 the metropolitan residence. I salute their good judgment in
21 that. And so I will say that I will not require you to meet in
22 person, but I will require you to meet.
23 And I would say this. If you have a meet and confer,
24 I would like to have correspondence between the parties as to
25 what the subject is so that there is an agreed agenda that's
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1 written and we know that both sides know what it is, and that
2 will help me if, ultimately, the problem gets back to me. So I
3 would say exchange writing as to what it's going to be and have
4 a meeting. It doesn't have to be in person, but it certainly
5 has to be a significant meeting; it can't be just one
6 ten-minute telephone call.
7 So that's how I feel about the meet and confer.
8 Now, I'm not going to get into whether that's relevant
9 or not to the problems which we face today. That's just going
10 forward. As I say, I do hope that you all can -- it won't be
11 easy, but if you deal with these problems as the excellent
12 professionals that you are without the emotional implications,
13 having said that.
14 Now, how to go forward today? My thought is the
15 following. I have read your papers, and to say that I
16 understand the problems would be, I guess, a lie, but I'm
17 trying and you'll help me. I have a list of what I think our
18 issues are and I would like to go through this with you, and
19 then when I'm finished, if we have missed something, I'm sure
20 you will correct me. And I'd be pleased to hear if I determine
21 something, if you think that I'm wrong, that's fine, too. I
22 mean, you can tell me why you think I'm wrong.
23 Now, the first problem is the document -- the issue
24 about improper privilege claims. As I understand that issue,
25 it is the presence of Gow, Cohen and maybe somebody else as
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1 defeating the privilege, on the one hand. On the other hand,
2 the assertion by the defense that their participation as
3 whatever they are, managers, public relations people, whatever,
4 is necessary for the rendering of legal advice.
5 Parenthetically, there is a subtext there about whose
6 law applies. Let me say, I think we are going to apply New
7 York law in this case. British law may become relevant in some
8 way or other down the road, but for this privilege purpose, I
9 think that's where we are.
10 I think what I would like is I would like any
11 materials that -- the obligation to establish this privilege is
12 obviously Ms. Maxwell's, and I would like any materials that
13 she wants to present to me about these meetings to establish
14 that it was necessary for the rendering of legal advice, I'll
15 review those materials in camera and try to reach a decision.
16 I may need something further after I have looked at them, but I
17 think that's the way I ought to deal with that particular
18 privilege issue.
19 There is a list of documents as to which objections
20 have been made on a variety of bases. I will say probably a
21 catalog of every objection known to the mind of excellent
22 attorneys, and I think we will try to deal with those this
23 afternoon and maybe we'll fail, but let's put those aside just
24 for the moment.
25 The question about a protective order, of course there
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1 should be a protective order in this case. You are good
2 lawyers and you have been around this track more times than I
3 have and so you can prepare consensually a better protective
4 order than I can, and I urge you to do that. And, in fact, I
5 will give you two weeks to do that. Should you fail, you can
6 present whatever materials you wish to me and I will decide
7 what the protective order is going to be. That's not a good
8 idea because you know the case better than I do, obviously, and
9 so I urge you to resolve it by your litigation skills and not
10 leave it up to the ignorant district court judge who doesn't
11 really get into this kind of thing very often. So you run a
12 risk if you leave it to me.
13 Now, I would say two weeks, and then if you can't get
14 an agreement, maybe three weeks from now we wrestle with that.
15 Hopefully we won't. I have to do that.
16 The deposition -- the defendant of course will be
17 deposed, and we can work out right now when. Obviously, you
18 don't want that deposition until the protective order is
19 completed. So what do we do about that? Do you want to deal
20 with that today, the actual date of the deposition, or should
21 we pass that until we accomplish the protective order? What do
22 you all think about that?
23 MS. McCAWLEY: Can I be heard on that, your Honor?
24 This is Sigrid McCawley. I am counsel for Ms.
25 With respect to the deposition date, the 25th was the
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1 date that my opposing counsel proposed as possibly being
2 available. So we set it for that date, which is next Friday.
3 We also offered to hold that deposition transcript confidential
4 until such time as the protective order could be issued so that
5 there is no barrier to us being able to take this deposition.
6 THE COURT: How about that? Is that OK?
7 MR. PAGLIUCA: Frankly, it is not, your Honor, and the
8 reason is we, clearly from the papers submitted so far and the
9 exchange of counsel, we have a significant disagreement at this
10 point as to what the word "confidential" actually means, and we
11 have proposed to the plaintiff a protective order that we
12 believe is appropriate and neutral --
13 THE COURT: Well, maybe I can -- can we get over -- if
14 that's the primary issue on the protective order, can we deal
15 with that now?
16 MR. PAGLIUCA: I think there is a secondary -- well,
17 it may not even be secondary. There is another issue that is
18 directly related to that, your Honor, and that is the lack of
19 production of documents from the plaintiff. The Court has not
20 seen these papers yet, but there are in my view significant
21 deficiencies with the Rule 26 disclosures. There have been
22 failure to produce documents. And it is unfair at this point
23 to push these depositions forward without the required exchange
24 of discovery.
25 THE COURT: Let me ask the plaintiff. You really --
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1 MS. McCAWLEY: Could I be heard on that? Thank you,
2 your Honor. I'm sorry, I didn't mean to interrupt you.
3 THE COURT: What do you think?
4 MS. McCAWLEY: Right. The issue is so I issued my
5 deposition notice before they even served discovery requests.
6 THE COURT: OK. All right.
7 MS. McCAWLEY: I've done 3,000 pages. They've done
8 two emails.
9 THE COURT: Look, doesn't it make sense to resolve any
10 document discovery issues perhaps before the deposition?
11 MS. McCAWLEY: I don't think so, your Honor. I want
12 the testimony of this defendant in order to move this case
13 forward. Our discovery closes in July. I issued my discovery
14 requests in October. I have not gotten the deposition of the
15 defendant yet. This is a date she is available. She is not
16 leaving the country. She is not going anywhere. I have her in
17 town next Friday.
18 I'll even agree to their protective order if it means
19 I can get her deposition, your Honor. I just need to get this
20 case moving forward. I need one deposition, the deposition of
21 the defendant in this case, who has called my client a liar.
22 We are entitled to depose her and see if she is going to answer
23 the questions about why she was
24 THE COURT: All right. OK.
25 MS. McCAWLEY: I am entitled to answers.
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1 THE COURT: Well --
2 MR. PAGLIUCA: Your Honor, I think this is a good
3 meeting and it is a meeting that should have happened a long
4 time ago. Let me say to the Court that we proposed to meet
5 with plaintiff's counsel early on in this case to put together
6 a discovery schedule that made sense. We proposed that orally
7 and in writing. That proposal was ignored and rebuffed. And
8 counsel for the plaintiff then unilaterally scheduled a bunch
9 of depositions without conferring on dates. Unilaterally,
10 here's the dates, here are the depositions. We then tried to
11 work through that issue, at the same time trying to work
12 through the protective order issue and the document issue, and
13 we get no response. And I think the agenda here is to gain a
14 tactical advantage by not responding to these requests.
15 THE COURT: Well, I can't believe that lawyers would
16 seek a tactical advantage. I can't believe such a thing.
17 MR. PAGLIUCA: I am shocked.
18 THE COURT: OK. Tell you what we're going to do.
19 We'll -- three weeks, let's see. Her deposition -- this
20 question about document production, that hasn't been teed up,
21 so I don't know --
22 MS. McCAWLEY: And can I be heard on that really
23 quickly? I mean, If that were the standard, that they could
24 wait to --
25 THE COURT: No. It hasn't been teed up, I agree.
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1 (Pause)
2 OK. Then I think what we should do is I'm assuming we
3 will resolve the protective order problem we've sort of slug
4 over the -- can we resolve what's confidential? Is that
5 possible? Could we do that this afternoon, or is that too
6 complicated?
7 MS. McCAWLEY: Your Honor, I can have the deposition
8 of the defendant in this case and move this case forward. I
9 will agree to their protective order. I just want that
10 deposition.
11 THE COURT: Yes.
12 MS. McCAWLEY: It is that important to me.
13 THE COURT: I get your point. I understand that. But
14 at the same time, I think, given the nature of all that lies in
15 this, I think it is fair to say no side would like to have this
16 aired, and so we've got to have a protective order that
17 everybody feels comfortable with.
18 MS. McCAWLEY: Your Honor, you can today enter the
19 protective order that they submit. I will disregard my
20 objections if I get the deposition.
21 THE COURT: Will you agree now to the protective
22 order?
23 MS. McCAWLEY: Yes. If it means I can get her
24 deposition, yes, I will do that.
25 THE COURT: Oh, OK. Good. Well, that solved that.
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1 MR. PAGLIUCA: It is not as simple as that, your
2 Honor, because this quid pro quo, I'll agree to their
3 protective order if I can have the deposition on the 25th,
4 doesn't solve the problem.
5 THE COURT: At least we've separated it. She has
6 agreed to the protective order. OK? So that's done. OK?
7 Now, why can't we have her deposition upon, whatever
8 it is, a week from Friday?
9 MS. McCAWLEY: Friday, the 25th, this coming Friday, a
10 week from tomorrow.
11 THE COURT: Oh, a week from tomorrow, yes.
12 MS. McCAWLEY: Yes.
13 MS. MENNINGER: Your Honor, we served discovery
14 requests on plaintiff on February 12th.
15 THE COURT: Well, look, that's nice. That's good.
16 But I don't have that, and I think she's right that there is no
17 rule that says you have to get your discovery requests
18 satisfied before the deposition, so
19 MS. MENNINGER: Your Honor, the responses were due
20 last night yesterday, so that is prior to Ms. Maxwell for the
21 25th. However, as a part of producing that discovery response,
22 they have said they're going to take a month to roll out their
23 production, not just
24 THE COURT: Look. I'll tell you what let's do. I
25 don't have that, but let's -- we'll hold the deposition date.
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1 When we get through with the rest of this stuff, we'll find out
2 if there is something in particular that you want prior to next
3 Friday and see what that is and see if we can get it. How is
4 that?
5 (Pause)
6 OK. Who pays for what and counsel, all of that?
7 Those are interesting problems and who knows how they all come
8 out. I think all of that is best served by reserving them
9 until the conclusion of the case, which is what I shall do.
10 The plaintiff wants to produce on a rolling basis and
11 to amend or add to the privilege log as the production goes
12 forward. I don't see any problem with that.
13 MS. MENNINGER: Your Honor, that's actually the issue
14 I was just alluding to. I understand -- and I have said I
15 don't have a problem with plaintiff producing her documents
16 over the course of the month because she has said that it is a
17 hardship for her to produce them all last night, which is when
18 they were due. However, she's trying to take our client's
19 deposition in the middle of her rolling production, in other
20 words, show up at the deposition with the documents she happens
21 to get --
22 THE COURT: That's what I'm saying. Maybe what we'll
23 do is to deal with the document production issue separately.
24 MS. MENNINGER: OK.
25 THE COURT: And if there are some documents that
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1 really seem to be important and they cannot be produced, then
2 maybe we'll put over the -- we'll see how that works.
3 MS. McCAWLEY: Your Honor, I may be able to short
4 circuit this.
5 THE COURT: Pardon me?
6 MS. McCAWLEY: I may be able to short circuit this a
7 little bit. We produced 3,000 pages last night. We are
8 continuing that production. We are moving as fast as we can.
9 We produced a privilege log with over 134 entries on it. We
10 are continuing to move that forward as quickly as we can.
11 With respect to her deposition, your Honor, I'm happy
12 to provide them in advance every document I will be using at
13 her deposition. In other words, if that is their issue, if it
14 means I can get her deposition next Friday, I will share with
15 them any document I intend to use at that deposition.
16 THE COURT: That seems to solve the problem, don't you
17 think?
18 MS. MENNINGER: Your Honor, I have to disagree. I got
19 this responsive objection last night at 9:30 p.m., while I was
20 here in New York. I've taken a look at it, and I can give your
21 Honor a sense of the types of objections that plaintiff has
22 lodged to our document request. For example, their client sold
23 her diary to Radar Online. It was published on Radar Online.
24 This diary contains plaintiff's allegations against my client.
25 So I asked for the diary that was sold to Radar Online.
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1 THE COURT: You get it.
2 MS. MENNINGER: It is copyright and proprietary
3 protected. We're not going to produce it. So that's the kind
4 of example --
5 THE COURT: No. You get it.
6 MS. McCAWLEY: She doesn't have a diary. She might be
7 referring to something else. I mean, my client doesn't have a
8 diary to produce. She doesn't have one. Those were
9 handwritten notes that she gave a reporter. She doesn't have
10 one.
11 THE COURT: So you are saying --
12 MS. McCAWLEY: That request is broader. I mean
13 THE COURT: No.
14 MS. McCAWLEY: I didn't know we were going to be
15 addressing my requests today --
16 THE COURT: as to the diary, you say it doesn't
17 exist. There is no diary, there are no notes, and whatever
18 there is has been the subject of the printed material?
19 MS. McCAWLEY: Yes.
20 MS. MENNINGER: Excerpts -- excerpts, your Honor, with
21 my client's name on them in plaintiff's handwriting were sold
22 to Radar Online, not the entire document. And when I asked for
23 the entire document, I was told that it is proprietary and
24 copyright protected.
25 THE COURT: What is "proprietary"?
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1 MS. McCAWLEY: I think she's referring to a broader
2 request. My client doesn't have a diary, which is what she's
3 addressing right now. I don't have my requests in front of me,
4 your Honor. We were here on their requests. But if you want
5 to read the whole request, I can try and remember what
6 THE COURT: What are we talking --
7 MS. McCAWLEY: Did they say I was withholding
8 documents? I don't think I said I was withholding documents on
9 that request. But, again, I don't have it in front of me and I
10 apologize.
11 MS. MENNINGER: The request number 16 reads: "Any
12 diary, journal, or calendar concerning your activity between
13 '96 and '02."
14 Response: Ms. ejects to this request to the
15 extent it seeks proprietary- and copyright-protected material.
16 Ms. objects in that it seeks information protected by
17 the attorney-client privilege, the attorney work product
18 privilege, the joint defense, interest privilege, the agency
19 privilege, the investigative privilege, the spousal privilege,
20 the accountant/client privilege, and any other applicable
21 privilege."
22 THE COURT: Hot dog. I tell you, that's great.
23 MS. McCAWLEY: But did I say I didn't have --
24 THE COURT: Shall we use that as the standard
25 objection to every document request and then let's forget about
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1 it? OK, let's do this.
2 MS. McCAWLEY: Your Honor, may I be heard on just one
3 point on this issue?
4 If the standard were that someone could wait in a case
5 to request documents and then push off depositions by
6 continuing to file new requests, it's apparently --
7 THE COURT: Yes. I hear you. I understand that
8 point. Look, obviously if there are documents that are covered
9 by the privilege, they have to be identified and logged. So
10 that's the privilege.
11 I don't know, what is this proprietary thing? What is
12 that all about?
13 MS. McCAWLEY: To the extent she has commercially
14 valuable material that she has written, that's covered by --
15 it's covered by the protective order basically, that it would
16 be produced in a confidential format with a copyright-protected
17 format. So it is a general objection --
18 THE COURT: So she will produce that, she will produce
19 everything --
20 MS. McCAWLEY: If she has something like that, yes.
21 Like I said, we produced 3,000 pages yesterday.
22 THE COURT: And calendars and all of the rest of them?
23 MS. McCAWLEY: To the extent she has any of that, we
24 will produce it, your Honor.
25 THE COURT: All right. In other words, you are going
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1 to produce everything except anything that you have that you
2 claim privilege as to which you will log?
3 MS. McCAWLEY: Yes. We have been logging --
4 THE COURT: Well --
5 MS. MENNINGER: Your Honor, on this particular one,
6 she says her client does not have any nonprivileged documents
7 created during the time period responsive to this request, and
8 then there are no privileged documents related to this log on
9 the privilege log. So I don't have any way to read this
10 request in a privilege log and figure out whether there are
11 noncopyright materials that weren't withheld or there are
12 privileged because all of these privileges were raised --
13 THE COURT: I take it that what's being said is that
14 she has no privileged documents that would be covered by that
15 request?
16 MS. MENNINGER: That's not what the objection says.
17 And, your Honor, since she sold her handwritten notes about my
18 client to Radar Online, I know they exist because they were
19 excerpted on the Internet.
20 THE COURT: Yes, but she said she doesn't have them.
21 She said -- I mean, correct me if I am wrong.
22 MS. McCAWLEY: No, she doesn't have them. But, your
23 Honor, I am happy to have -- first of all, she hasn't conferred
24 on these issues that we are talking about here today. I am
25 happy to address them fully. I feel very comfortable with our
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1 discovery production in this case. We will continue to roll it
2 out; we have done it timely. Unlike like the defendants, who I
3 served their discovery requests October 27th, your Honor. We
4 are now in March. I received two emails, two emails in
5 response. I produced 3,000 pages --
6 MS. MENNINGER: Your Honor, she is --
7 (Unintelligible crosstalk)
8 THE COURT: Ladies, we're not going to get anywhere if
9 we "who struck John."
10 MS. McCAWLEY: I understand, your Honor.
11 I think I proposed something very fair by saying that
12 I would share with her any document I intend to use at that
13 deposition. I just need the deposition.
14 THE COURT: I understand. I got you. OK.
15 Now, you will identify any document -- I mean, you
16 tell them -- give them any documents that you are going to use
17 in the deposition.
18 MS. McCAWLEY: Yes.
19 THE COURT: OK. Now, is there -- the business of this
20 production on -- you are going to have to -- well, wait a
21 minute. Let me put it this way. The objections to this 16 are
22 overruled except for the privilege. OK?
23 MS. MENNINGER: Your Honor, I've proposed dates for my
24 client to be available in two or three weeks, once we have
25 received a complete document production, which was due last
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1 night, and I have been told we're not going to talk about dates
2 in two or three weeks. We haven't asked to set them out into
3 May or June. We've just asked for the documents that were due
4 last night to be produced to us before our client's deposition.
5 This isn't some kind of game. It's just she's been litigating
6 this case for seven years --
7 THE COURT: OK. Well, we've dealt with the first
8 objection. Now, is there another one?
9 MS. McCAWLEY: Right. So we're here on my motion to
10 compel production of documents. I am just getting a little
11 confused because I don't -- we are here -- my motion to compel
12 production of documents from her based on my request that --
13 THE COURT: Let's not worry about the --
14 MS. McCAWLEY: OK. I just wanted to be clear. I
15 don't have in front of me the request that she is referring to.
16 THE COURT: OK. Anything else that you think you need
17 besides the documents she is going to use, the response to 16?
18 Anything else --
19 MS. MENNINGER: Your Honor --
20 THE COURT: -- that is critical for the deposition?
21 MS. MENNINGER: Your Honor, these were filed last
22 night at 9:30 p.m., the 3,000 pages were produced to my office,
23 which is in Colorado. I haven't looked at the 3,000 pages that
24 were produced last night. I will have to ask leave of the
25 Court to go back, look at the documents that were produced and
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1 see what I am missing.
2 THE COURT: All right. If you want to, you can come
3 back on Thursday next week and we can argue about whether or
4 not the deposition should go forward on Friday.
5 MS. MENNINGER: OK.
6 THE COURT: That is all right with me.
7 MS. MENNINGER: That is acceptable, your Honor.
8 THE COURT: OK. So maybe we've solved that problem.
9 OK. Maybe.
10 Now, on the improper objections by the defendants. I
11 suppose I can assume that the defendants' objections are just
12 exactly the same as the plaintiff's objections.
13 MR. PAGLIUCA: No, your Honor. They are not.
14 MS. McCAWLEY: Oh, I'm sorry. This is my motion to
15 compel. Can I just address it initially so that I can lay out
16 for the Court what the issues are that we are raising on the
17 motion to compel?
18 THE COURT: I'm sorry.
19 MS. McCAWLEY: This is my motion to compel now. Can I
20 address -- am I able to address that?
21 THE COURT: Yes.
22 MS. McCAWLEY: So with respect to our motion to compel
23 the documents from the defendant, as you know, your Honor,
24 there are two main objections that I think have to be overcome
25 in order for us to get that production properly. The first
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1 main objection is the fact that they are objecting to the time
2 period. So we have sought requests from 1999, which is in
3 around the time when my client contends she was involved with
4 these individuals, to the present. They objected that that
5 time period is overly broad. They only agreed to produce for
6 the period of 1999 to 2002 and for one month, from December 31,
7 2014 to January 31, 2015. So they cut out all the years in
8 between and anything post January 31, 2015.
9 Now, with respect to your Honor maybe saying why would
10 that time period be relevant, the entire time period is
11 relevant for a number of reasons. First, in 1999, that's when
12 my client first recalls being --
13 THE COURT: We can agree think we can agree at
14 the outset that '99 to what is it?
15 MS. McCAWLEY: 2002.
16 THE COURT: 2002 is relevant.
17 MS. McCAWLEY: Right.
18 THE COURT: So what we're talking about is the what
19 happened in 2002?
20 MS. McCAWLEY: My client was sent to Thailand by
21 Mr. Epstein and Ms. Maxwell for a training and to pick up
22 another --
23 THE COURT: So she is no longer --
24 MS. McCAWLEY: And she left. She fled to Australia.
25 THE COURT: OK.
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1 MS. McCAWLEY: So with respect to these requests, I
2 just want to -- you know, because the Court has mentioned this
3 and it is worthy of referencing, that if you look at the
4 defendants' request to us, they actually request a longer time
5 period; they request from 1996 to the present. So while they
6 don't want us to -- they don't want to produce to us except for
7 that short window, they are requesting the entire period. In
8 some cases they request and I did a chart. Your Honor,
9 would you mind if I just pass this up to you for reference?
10 THE COURT: OK.
11 MS. McCAWLEY: I did a chart, I believe it is on page
12 10, and it has for you the various requests and what the time
13 periods are, and for many of the requests there is no time
14 period at all.
15 MR. PAGLIUCA: I have it. I don't need it.
16 MS. McCAWLEY: Oh, you have that?
17 MR. PAGLIUCA: I do not need it.
18 MS. McCAWLEY: OK. I'm sorry.
19 So that time period shows that many of those requests
20 don't have a time period at all; so it is even broader, from
21 infancy to present. So, in fairness, our requests are 1999 to
22 the present, which we believe is the critical time period.
23 Now, what happens in 2002? So my client does flee to
24 Australia away from these individuals, but the conduct
25 continues. So we have, for example, the law enforcement trash
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1 pulls that show the message pads of the back and forth of
2 arranging these underaged minors to come for massages, things
3 of that nature. We have the flight logs that show Ms. Maxwell
4 flying 360 times with Jeffrey Epstein, 20 of which were with my
5 client when she was underage. We have the Palm Beach police
6 report, which shows over 30 minors who reported during that
7 time period, to up until now 2006, being abused in that
8 circumstance in Palm Beach. Then we have the arrest that
9 happens of Jeffrey Epstein in 2006.
10 Thereafter, my client in 2008 is -- I'm sorry, she
11 receives from the U.S. government a victim notification letter.
12 At that point, in 2009, Ms. Maxwell's deposition is sought in
13 underlying civil cases. She flees from that deposition, says
14 her mother is ill in England, she has to leave the country,
15 cannot be deposed. She then shows up three weeks later at
16 Chelsea Clinton's wedding. So clearly she was around, she was
17 able to do something, but she avoided that deposition. Her
18 testimony was never taken in that case.
19 So that's in 2009. Then we have in 2011 my client is
20 interviewed by the FBI about the issues that have happened.
21 Then we have in 2011 Ms. Maxwell starts issuing different
22 statements to the press. She continues that, issues a
23 statement in 2015, which is the statement that we are here
24 about in this case.
25 So I contend, your Honor, that all of those years have
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1 relevant information in them with respect to my client.
2 THE COURT: OK. I understand.
3 Let's hear from the defendant.
4 MR. PAGLIUCA: So, your Honor, I have tried to refrain
5 from responding in kind, but the problem here is all of this --
6 the agenda behind all of this is not really the issue in this
7 case but it is to make inflammatory statements like counsel
8 just made as fact when they are speculation, at best, your
9 Honor, and to pack into the record things that are demonstrably
10 not true but counsel says them like they are true and then
11 refers to her own declaration to support the fact of what she
12 is saying may or may not be true. So let's get to the issue
13 here in terms of the relevant timeframe.
14 First, the plaintiff goes to Thailand on her own
15 volition, gets married, and moves to Australia, where she
16 resides for some 12/13 years after, and has no contact with
17 Ms. Maxwell or Mr. Epstein. So everything that happens from
18 2002 forward has absolutely nothing to do with the plaintiff in
19 this case, and she has absolutely no personal knowledge about
20 what did or didn't happen in Florida or elsewhere from that
21 timeframe forward.
22 You know, I carefully, your Honor, read your ruling on
23 the motion to dismiss, and I believe that you characterized the
24 issue in this case very narrowly, and that is is what the
25 plaintiff said about Ms. Maxwell, and from 1999 to 2002, true
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1 or not. Those two individuals have the facts that relate to
2 that, and anything outside of that, quite frankly, is opinion
3 and not a subject matter of this litigation.
4 Now, you have to focus not only on this expansive
5 timeframe in which the plaintiff is not even in this
6 hemisphere, which is combined with the overbroad requests that
7 don't ask for things that might be arguably relevant under a
8 404(b) analysis -- you know, for example, did this happen with
9 Ms. Maxwell and someone else in 2005, let's say -- those aren't
10 what the requests are. The requests are for all communications
11 for 17 years with plug in the individual, all documents
12 relating to whatever you want to plug in there for 17 years.
13 And so those two things combined create a grossly overbroad and
14 unmanageable document request. Hence, the objections.
15 Now, had we had the ability to confer about this, we
16 may have been able to get down to, here, these are really the
17 relevant timeframes, or you need to modify your requests for
18 production to say things like any communication with Jeffrey
19 Epstein related to the plaintiff, any communication with this
20 person related to the plaintiff. But that's not what the
21 requests are. And so what you are left with is an unmanageable
22 pile of requests for production of documents.
23 I will note, your Honor, so the Court has this in
24 context, there are 39 requests that have been proposed to
25 Ms. Maxwell. She has no responsive documents, and I've so
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1 indicated to 17 of those requests. So we then winnow this down
2 to the ones that we are objecting to for very good reason. The
3 timeframe we have proposed is the appropriate timeframe. If
4 there are narrowly tailored requests for production for
5 something that may be relevant outside that timeframe, then
6 they should propose that and not what they are proposing
7 currently, which makes the entire process unwieldy and
8 unreliable.
9 MS. McCAWLEY: Your Honor, the underlying issue in
10 this case is whether or not Ms. Maxwell lied when she said my
11 client was not subject to the abuse that she said she was
12 subject to. So in order to prove that, for defamation with
13 malice, we have to prove that my client was abused by these
14 individuals, that these individuals did take advantage of her
15 in the way that she expressed.
16 What's relevant to that is the sexual trafficking
17 ring. If after my client left they are also trafficking other
18 underaged girls repetitively, that is relevant to prove the
19 truth of my client's allegations as well. We are entitled to
20 that in discovery, your Honor. One of the requests is the
21 documents relating to communications of Jeffrey Epstein. If
22 she is e-mailing Jeffrey Epstein about the girls she's going to
23 send over to him in 2004, before he is arrested, that's
24 relevant to my client's claim, your Honor. So we shouldn't be
25 told that we're not entitled to these documents or that we're
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1 only entitled to two emails out of all of our requests.
2 In addition, he says that there are 17 requests that
3 they have no documents for, your Honor, but, again, they have
4 restricted the time period to this very short window and then
5 they answered in their responses. OK. So --
6 MR. PAGLIUCA: That is not true. If you read --
7 actually read the response, there is no restriction because we
8 have looked and there are no documents. We're actually trying
9 to move this ball forward, your Honor, and what's happening
10 here is we keep getting sucked back into this morass of maybe
11 something happened. If you listen to the words that counsel is
12 saying, your Honor, it is very illustrative of the fishing
13 expedition. If there is this, then it is relevant. But that
14 is not what they are asking for. And you have to go back to
15 the request. "All documents" -- Request No. 1: "All documents
16 relating to communications with Jeffrey Epstein from 1990 to
17 present." Well, that's not all documents concerning
18 trafficking or underaged girls, that's all documents relating
19 to, which could be anything in the universe.
20 Those are the reasons why I objected.
21 Request No. 3: "All documents relating to
22 communications with Andrew Albert Christian Edward, Duke of
23 York, from 1990 to present." You know, what the heck does a
24 communication with the Duke in 2013, any old communication,
25 have to do with anything in this case? Nothing. If you
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1 said -- if you give me a request for production of documents
2 that said give me any documents that talk about your press
3 release with the Duke, well, that might be relevant and
4 discoverable, but these are grossly overbroad.
5 If they had conferred with us, we would have been able
6 to narrow this down, but they haven't because there is an
7 agenda here that, quite frankly, I don't understand, your
8 Honor. But what I think it is is to simply pack the record,
9 the written record and the oral record, with these very
10 specious, quite frankly, disgusting allegations about my
11 client, and that's not what we're here for. If they want
12 something, they should ask for it specifically. If they just
13 want to, you know, kind of throw things around -- if this, then
14 that -- then that's what we're about here.
15 MS. McCAWLEY: Your Honor --
16 THE COURT: All right. I think I understand this
17 issue.
18 What else do we have? We have the timeframe and the
19 specificity.
20 MS. McCAWLEY: Right. So, your Honor, there is the
21 timeframe for the request, and then, right, I assume that they
22 are alleging that these are overbroad in some way as
23 THE COURT: I would rather think I just heard that.
24 MS. McCAWLEY: Right. Exactly. So, your Honor, just
25 to touch on that very quickly. Not only -- and you will see it
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1 in our papers, but we also give specific examples of why these
2 are relevant, for example, and not overbroad. For example, two
3 of the people we asked for documents and communications with,
4 and , when they were asked in
5 their depositions about Ms. Maxwell sexually trafficking
6 underaged girls, both of those individuals took the Fifth. If
7 there are documents between Ms. Maxwell and
8 discussing those issues at any time from 1990 to present, we
9 want those documents, your Honor. And while they say that
10 day-to-day communications with Jeffrey Epstein wouldn't be
11 relevant, they would. If they're communicating on a daily
12 basis, that's relevant.
13 THE COURT: I understand that point.
14 MS. McCAWLEY: So, your Honor, those are the two key
15 issues as I understand it, the time period and then the
16 overbreadth of the request, that they have been objecting to.
17 And, your Honor, we just obviously want discovery in
18 this case to move it forward.
19 THE COURT: All right. So we've got that. I
20 understand that. Is there any other broad category?
21 MS. McCAWLEY: No. Those are the two issues, as I
22 understand it, the date range which they've limited --
23 THE COURT: If we resolve those two, have we resolved
24 the objections to the document demand?
25 MS. McCAWLEY: That's my understanding, that they
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1 should be produc