gov.uscourts.nysd.447706.1328.18.pdf

Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 1 of 50 United States District Court Southern District of New York Virginia L. Giuffre, Plaintiff, Case No.: 15-cv-07433-RWS v. Ghislaine Maxwell, Defendant. ________________________________/ PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S SECOND MOTION TO COMPEL AND FOR SANCTIONS Sigrid McCawley (Pro Hac Vice) Meredith Schultz (Pro Hac Vice) BOIES, SCHILLER & FLEXNER LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 2 of 50 TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. DEFENDANT’S ENTIRE MOTION SHOULD BE DENIED ...........................................1 III. MOTION TO COMPEL RESPONSES TO INTERROGATORIES SHOULD BE DENIED ...............................................................................................................................2 A. Interrogatory No. 5.................................................................................................. 2 1. Ms. Giuffre’s Counsel’s Communications With the Media Are Outside the Scope of Rule 26 and Any Attempt at Collection Would be Unduly Burdensome ..............................................................................2 2. Defendant is Already in Possession of Ms. Giuffre’s Communications With the Media ...........................................................................................3 B. Interrogatory No. 6.................................................................................................. 5 C. Interrogatory No. 7.................................................................................................. 8 D. Interrogatory No. 8................................................................................................ 10 E. Interrogatory No. 13.............................................................................................. 10 1. Ms. Giuffre Has Answered This Interrogatory Completely .....................10 2. This Court Has Already Ruled Against Defendant on Pre-1999 Medical Records, so Defendant is Estopped From Bringing This Argument ..................................................................................................15 3. This Request is Overly Burdensome and Disallowed Under New York Law ..................................................................................................17 4. The Physician-patient Privilege Applies to These Documents ................19 F. Interrogatory No. 14.............................................................................................. 20 1. This Discovery is Barred by FRE 412......................................................20 2. This Request if Propounded for Improper Purposes and Harassment ......21 3. This Request Seeks Irrelevant Information ..............................................22 i  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 3 of 50 4. Sexual Assault Records are a Medical Event and Are Barred by This Court’s Order ............................................................................................23 5. Information About Ms. Giuffre’s Sexual Abuse is Protected by Florida Statutes .........................................................................................24 6. Defendant Makes Misrepresentations to the Court ..................................25 7. Defendant Has Violated the Court’s Protective Order (DE 62) ...............25 IV. PLAINTIFF’S ANSWERS TO DEFENDANT’S REQUESTS FOR ADMISSIONS ARE NOT DEFICIENT AND DEFENDANT’S MOTION SHOULD BE DENIED ......26 A. Requests for Admission Nos. 1-8 and 13.............................................................. 26 B. Requests for Admission Nos. 12 ........................................................................... 28 V. PLAINTIFF’S RESPONSES TO DEFENDANT’S OVERLY BROAD REQUESTS FOR PRODUCTION ARE COMPLIANT WITH HER DISCOVERY OBLIGATIONS UNDER THE APPLICABLE RULES AND DEFENDANT’S MOTION SHOULD BE DENIED ....................................................................................30 A. Request for Production No. 1................................................................................ 30 B. Request for Production No. 4................................................................................ 36 C. Request for Production No. 9................................................................................ 36 D. Request for Production No. 10.............................................................................. 40 E. Requests for Production No. 11 and No. 12 ......................................................... 40 VI. CONCLUSION ..................................................................................................................42 CERTIFICATE OF SERVICE ..................................................................................................... 44 ii  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 4 of 50 TABLE OF AUTHORITIES Page Cases Blodgett v. Siemens Industry, Inc., 2016 WL 4203490 (E.D.N.Y., 2016)......................................................................................... 2 Does 1 and 2 v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011) .................................................................................... 39 Does v. United States, 749 F.3d 999 (11th Cir. 2014) ................................................................................................. 39 Dubin, 125 F.R.D 372 (S.D.N.Y. 1989). ............................................................................................. 30 Elghanian v. Schachter, 1997 WL 607546 (S.D.N.Y. 1997) ............................................................................................ 1 Evanko v. Electronic Systems Assoc., Inc., No. 91 Civ. 2851, 1993 WL 14458 (S.D.N.Y. Jan. 8, 1993) ................................................... 17 Gibbons v. Food Lion, Inc., No. 98-1197-CIV-T-23F, 1999 WL 33226474 (M.D. Fla. Feb.19, 1999) .............................. 21 Havenfield Corp. v. H & R Block, Inc., 67 F.R.D. 93 (W.D.Mo.1973) .................................................................................................. 30 Jane Doe 1 v. United States, No. 9:08-cv-80736 (S.D. Fla. July 7, 2008).............................................................................. 38 Jane Does 1 and 2 v. United States, 950 F. Supp. 2d 1262 (S.D. Fla. 2013) .................................................................................... 39 Manessis v. New York City Dep’t of Transp., No. 02 CIV. 359SASDF, 2002 WL 31115032 (S.D.N.Y. Sept. 24, 2002) ............................. 17 S.E.C. v. Micro-Moisture Controls, 21 F.R.D. 164 (S.D.N.Y.1957) ................................................................................................ 30 Sgambellone v. Wheatley, 165 Misc.2d 954, 630 N.Y.S.2d 835 (N.Y. Sup.Ct. 1995) ...................................................... 17 Silva v. Pioneer Janitorial Servs., Inc., No. CIV.A. 10-11264-JGD, 2011 WL 4729783 (D. Mass. Oct. 4, 2011) ......................... 21, 22 iii  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 5 of 50 Spin Master Ltd. v. Bureau Veritas Consumer Products Service, Inc., 2016 WL 690819 (W.D.N.Y., 2016) ....................................................................................... 30 T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38 (S.D.N.Y. 1997) ............................................................................................... 31 Thalheim v. Eberheim, 124 F.R.D. 34 (D.Conn.1988).................................................................................................. 30 United States v. Consolidated Edison Co., 1988 WL 138275 (E.D.N.Y. Dec. 15, 1988) ........................................................................... 30 Wachtman v. Trocaire College, 532 N.Y.S.2d 943 (N.Y. App. Div. 1988) ............................................................................... 17 Statutes 18 U.S.C. § 3771 ..................................................................................................................... 38, 39 18 U.S.C. § 3771(a)(9) .................................................................................................................. 39 Fla. Stat. § 39.202(6)..................................................................................................................... 25 Fla. Stat. § 480.041 ....................................................................................................................... 19 Fla. Stat. § 794.026 ....................................................................................................................... 25 Fla. Stat. § 985.036 ....................................................................................................................... 25 Fla. Stat. § 985.04 ......................................................................................................................... 25 Fla. Stat. § 985.054 ....................................................................................................................... 25 Rules Fed. R. Civ. P. 26 ................................................................................................................... passim Fed. R. Civ. P. 26(a)(1)(A)(i) ......................................................................................................... 1 Fed. R. Civ. P. 26(b)(1).......................................................................................................... passim Fed. R. Civ.P. 26(c) ...................................................................................................................... 21 Fed. R. Civ. P. 33.3 .................................................................................................................. .9, 35 Fed. R. Civ. P. 35(a)(5) ................................................................................................................. 30 Fed. R. Civ. P. 36 .......................................................................................................................... 30 iv  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 6 of 50 Fed. R. Civ. P. 36(a)(4) ................................................................................................................. 29 Fed. R. Civ. P. 36(a)(5) ................................................................................................................. 29 Fed. R. Civ. P. 37 ............................................................................................................................ 2 Fed. R. Civ. P. 37.1 ................................................................................................................ passim Fed. R. Evid. 412 ................................................................................................................... passim Other Authorities 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2258 ............................................... 30 Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771 ............................................................... 38 Andrew Taslitz, “Rape and the Culture of the Courtroom” (1999) .............................................. 26 Pub. L. 114-22, Title I, § 113(a), (c)(1), May 29, 2015, 129 Stat. 240, 241................................. 39 v  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 7 of 50 Plaintiff Virginia Giuffre (“Ms. Giuffre”), by and through her undersigned counsel, hereby files this Response in Opposition to Defendant’s Motion to Compel and her baseless Motion for Sanctions (DE 354). I. INTRODUCTION For the third time, Defendant attempts to elevate a routine discover dispute into something over which she seeks sanctions, despite the complete lack of a basis for sanctions and a complete lack of case law supporting her request.1 All three of Defendant’s requests for sanctions have been frivolous, legally unreasonable, without factual foundation, and for an improper purpose. Rule 11 provides for the imposition of sanctions in those circumstances. See Elghanian v. Schachter, 1997 WL 607546, at *2 (S.D.N.Y. 1997) (Sweet, J.) Indeed, in Defendant’s entire “argument” for sanctions, she only cites one case - a case from the District of the District of Columbia - for the proposition that Plaintiff should be sanctioned because her interrogatory responses were unsigned.2 However, Defendant’s interrogatory responses are also unsigned. Defendant’s thirty-seven page brief is riddled with these half-truths in a grasping attempt to distort reality as the documentary and testimonial evidence piles up against her. By Defendant’s logic, Ms. Giuffre should have already moved for sanctions against Defendant for Defendant’s unsigned interrogatories, but unlike Defendant, Ms. Giuffre would not burden the Court with a frivolous request for sanctions. II. DEFENDANT’S ENTIRE MOTION SHOULD BE DENIED Defendant’s motion violates Local Rule 37.1, and should be denied for that reason before the Court even reaches the merits. Local Rule 37.1 states that, “upon any motion or application 1 Defendant’s first baseless request for sanctions was improperly raised in a response brief (DE 228) to a routine motion for extension of time - a motion this Court granted (June 23, 2016, Minute Order). Defendant’s second baseless request (DE 231) centered on the fact that Ms. Giuffre listed her physicians in response to interrogatories instead of in her Rule 26 disclosures. 2 Ms. Giuffre has signed her amended interrogatories, and has served them on Defendant. 1  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 8 of 50 involving discovery or disclosure requests or responses under Fed. R. Civ. P. 37, the moving party shall specify and quote or set forth verbatim in the motion papers each discovery request and response to which the motion or application is addressed.” For the majority of discovery items upon which Defendant moves, Defendant has wholly failed to do this. Instead, Defendant edits out a great deal of Ms. Giuffre’s answers and objections to the interrogatories, skipping entire data sets put forth in response to the interrogatories, and skipping Ms. Giuffre most cogent objections. This is improper conduct. Upon a motion to compel, a Court is called upon to evaluate the discovery requests as well as the responses and objections. Local Rule 37.1 is designed to protect against the exact type of self-serving editing of the opposing party’s objections that Defendant has done in this brief. Accordingly, the Court should deny Defendant’s motion in its entirety for failure to comply with Local Rule 37.1. See Blodgett v. Siemens Industry, Inc., 2016 WL 4203490, at *1 (E.D.N.Y., 2016) (denying motion without prejudice for failure to comply with Local Rule 37.1 (which is the same rule in the Eastern District of New York)). III. MOTION TO COMPEL RESPONSES TO INTERROGATORIES SHOULD BE DENIED A. Interrogatory No. 5 1. Ms. Giuffre’s Counsel’s Communications With the Media Are Outside the Scope of Rule 26 and Any Attempt at Collection Would be Unduly Burdensome Interrogatory No. 5 seeks a catalogue of Ms. Giuffre and her counsel’s communications with the media, broadly defined, and without limitation of time or subject matter. First, the interrogatory request should be denied because Ms. Giuffre already produced her communications with the media, which included production of close to 200 e-mails. Despite having these key communications, Defendant is now pushing for all communications that any of 2  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 9 of 50 her counsel ever had with any media without any time or subject matter limitation. The search for, and production of, all communications involving her counsel and the media is unduly burdensome and wholly irrelevant. Given the nature of Ms. Giuffre’s counsel’s practices, the media reach out to Ms. Giuffre’s counsel frequently, regarding a number of issues, and none of Ms. Giuffre’s counsel catalogue or record any of these communications. Complete retrieval would be inordinately burdensome. Even Defendant’s more limited request put forth in the instant motion seeking communications with the media regarding this case is overly broad. This would require a marshaling of enormous resources, and under Rule 26(b)(1), there is no need expressed by Defendant to justify this heavy burden. Notably, Defendant has deposed Ms. Giuffre in detail on topics relating to media inquiries and she also has of Ms. Giuffre’s e-mail communications with the media produced by Ms. Giuffre. This request should be denied on these grounds alone. Though she claims Ms. Giuffre’s counsel’s communications with the media somehow go to her defenses, tellingly, Defendant fails to explain how they do, or put forth any case law in support this proposition. Additionally, there’s no explanation (or case law) as to how any such communications could go to Defendant’s damages. Defendant does not explain and does not elaborate. Defendant has failed to articulate relevance or any supporting case law for this discovery, and the request should be denied for this reason as well. 2. Defendant is Already in Possession of Ms. Giuffre’s Communications With the Media Regarding Ms. Giuffre’s communications with the media, Defendant already has them. And, importantly, Defendant didn’t have to hunt and peck for these communications, as she is trying to lead the Court to believe. Ms. Giuffre’s communications with the media consist of email communications between Ms. Giuffre and Sharon Churcher, and Ms. Giuffre and Jarred 3  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 10 of 50 Weissfeld. The overwhelming majority of them were produced in her second rolling production and continued on a rolling basis through the fifth production (all of which were small productions). Specifically, there are approximately 175 of these documents, and all were produced within a narrow Bates range.3 Defendant had knowledge of these documents as soon as Ms. Giuffre produced them. Moreover, these documents are featured in Defendant’s briefs, Defendant issued subpoenas to both Sharon Churcher and Jarred Weissfeld months ago, and Defendant has deposed Ms. Giuffre about her media contacts. See McCawley Decl. at Composite Exhibit 1, Defendant’s May 31, 2016, Subpoenas to Churcher and Weissfeld. Yet, Defendant cited a number of cases wherein discovery was buried amid voluminous productions so as to be hidden or to cause delayed or cumbersome discovery of them. They are inapposite. Defendant didn’t have to “comb through literally thousands of pages of documents” to “find” these. Again, they were presented to Defendant in small production batches, starting with the second production. Moreover, Defendant can gather all of these documents via an electronic search with a simple keystroke. By suggesting to the Court that Ms. Giuffre’s communications with the media were somehow hidden or buried in her production, Defendant makes an argument in bad faith. Indeed, Defendant’s argument is tantamount to making a false representation to the Court. Finally, all of these communications were email communications. So, on their face, they tell Defendant “the date of any such Communication;” “the form of any such Communication, whether oral or written and if written, the format of any such Communication;” “the identities of all the persons involved in such Communication” (this is revealed from the to/from/cc lines); and the other data. Defendant also knows, very well, the identities of the individuals involved 3 These communications were produced at Giuffre003191-4274; Giuffre004275-4301; Giuffre004302-4371; Giuffre004372-4746; Giuffre004747-5092. 4  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 11 of 50 (including the identity of the organization with which they are affiliated), particularly as the communicators each received one of Defendant’s subpoenas. At the end of the day, the only thing Ms. Giuffre could do to answer this any more than she already has is to go through the burdensome and redundant exercise of writing down, for each of the approximately 175 emails, (1) the fact that it is an email; (2) what name appears in the “to” field; (3) what name appears in the “from” field; (4) what name appears in the “cc” field; and (5) what date appears on the email. Ms. Giuffre submits to the Court that making such a catalogue is a redundant exercise that is not appropriate under Rule 26(b)(1) which, under the 2015 amendment, takes into account “the parties’ relative access to relevant information.” Ms. Giuffre also submits to the Court that moving to compel Ms. Giuffre to make such a list based on documents she already produced to the Defendant is frivolous and a waste of resources. B. Interrogatory No. 6 Defendant’s Interrogatory No. 6 seeks any “false statements” attributed to Defendant that were published. Defendant also seeks the date, place, and form of publication, publishing entity, the URL address, etc., of all such statements. Ms. Giuffre knows, with certainty, of certain statements made by Defendant, and, together, they are the subject of this action. Ms. Giuffre made a listing of various websites that published those statements in response to this interrogatory. This compilation was part of Ms. Giuffre’s interrogatory answer that Defendant misleadingly omits from her motion in violation of Local Rule 37.1. Based upon Ms. Giuffre’s answer, there is nothing else to compel. Yet, Defendant moves to compel answers that Ms. Giuffre does not have. Specifically, Ms. Giuffre does not have the knowledge (and certainly does not have the documents relating to) every time Defendant may have defamed her. That is information that lies solely in the possession of the Defendant. Indeed, Ms. Giuffre sought this very information from 5  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 12 of 50 Defendant in her Requests Nos. 17 and 18, in which she requested documents “concerning any statement made by You or on Your behalf to the press or any other group or individual, including draft statements, concerning Ms. Giuffre, by You, Ross Gow, or any other individual, from 2005 to the present, including the dates of any publications, and if published online, the Uniform Resource Identifier (URL) address” and “all documents concerning which individuals or entities You or Your agents distributed or sent any statements concerning Ms. Giuffre referenced in Request No. 17 made by You or on Your behalf.” Defendant objected to these requests and refused to produce any documents. Ms. Giuffre’s motion to compel is pending. As stated above, Ms. Giuffre knows that Defendant defamed her through the statement issued on her behalf by Ross Gow, and she knows Defendant defamed her when she affirmed that statement on video the next day in New York. But, she doesn’t know all Defendant’s defamatory statements, nor does she know where Defendant made them, or to whom she issued them. Defendant is trying to turn logic on its head with this request which, essentially, says: “You tell me the people to whom I have sent my own defamatory statements.” Indeed, Defendant’s own language belies her argument. In the instant brief, Defendant says: “The interrogatory required Plaintiff, among other things, to provide each “exact false statement” that she attributes to Ms. Maxwell and that was published anywhere in the world.” How Ms. Giuffre can know every person to whom Defendant made defamatory statements is unexplained. For example, if Defendant took her defamatory statements to a media outlet that chose not to publish them, there is no way for Ms. Giuffre to know that. The only person who knows the full extent of Defendant’s defamation of Ms. Giuffre is defendant, which is why Ms. Giuffre sent her a request for the same information. 6  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 13 of 50 However, to make a good faith effort of a response, Ms. Giuffre compiled many examples of Defendant’s defamation, examples that were absent from Defendant’s brief, in contravention of Rule 37.1: Date Nature Publishing Statement/URL Entity January 2, 2015 Internet Ross Gow Jane Doe 3 is Virginia Roberts - so not a new individual. The allegations made by Victoria Roberts against Ghislaine Maxwell are untrue. The original allegations are not new and have been fully responded to and shown to be untrue. Each time the story is re told it changes with new salacious details about public figures and world leaders and now: it is alleged by Ms. Roberts that Alan Dershowitz is involved in having sexual relations with her, which he denies. Ms. Roberts’s claims are obvious lies and should be treated as such and not publicized as news, as they are defamatory, Ghislaine Maxwell’s original response to the lies and defamatory claims remains the same. Maxwell strongly denies allegations of an unsavoury nature, which have appeared in the British press and elsewhere and reserves her right to seek redress at the repetition of such old defamatory claims. January 3, 2015 Internet Telegraph http://www.telegraph.co.uk/news/uknews/theroyalfam ily/11323872/Prince-Andrew-denies-having-relations- with-sex-slave-girl.html January 4, 2015 Internet Express http://www.express.co.uk/news/world/550085/Ghislai ne-Maxwell-Jeffrey-Epstein-not-madam-paedophile- Florida-court-case-Prince-Andrew January 3, 2015 Internet Daily Mail http://www.dailymail.co.uk/news/article- 2895366/Prince-Andrew-lobbied-government-easy- Jeffrey-Epstein-Palace-denies-claims-royal-tried-use- influence-help-billionaire-paedophile-2008-police- probe.html January 3, 2015 Internet Huffington Post http://www.huffingtonpost.co.uk/2015/01/03/duk e-of-york-sex-abuse-claims_n_6409508.html January 4, 2015 Internet Jewish News http://www.jewishnews.co.uk/dershowitz-nothing- Online prince-andrews-sex-scandal/ January 2, 2015 Internet Bolton News http://www.theboltonnews.co.uk/news/na tional/11700192.Palace_denies_Andrew_sex _case_claim/ January 5, 2015 Internet/ NY Daily News http:/www.nydailynews.com/news/world/alleged- Broadcast madame-accused-supplying-prince-andrew-arti cle-1.2065505 7  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 14 of 50 January 5, 2015 Internet/ AOL UK http:/www.aol.co.uk/video/ghislaine-maxwell- Broadcast declines-to-comment-on-prince-andrew-allegations- 518587500/ Ms. Giuffre recently updated this response to include an additional URL containing defamatory content: January 8, 2015 Internet The Sun https://www.thesun.co.uk/archives/news/6754/princ e-andrews-pal-ghislaine-groped-teen- girls/?CMP=spklr-128508300-Editorial-TWITTER- TheSunNewspaper-20150108-News Spending hours trolling the Internet for additional examples of entities that have published Defendant’s defamatory statements is not appropriate under Rule 26(b)(1), which takes into account “whether the burden or expense of the proposed discovery outweighs the likely benefit.” Here, scouring the Internet for additional examples of the publication of the defamatory statements that are already known (and, illogically, for those that are unknown) is not an appropriate discovery request. If Defendant would respond to Ms. Giuffre’s requests, Ms. Giuffre would be able to answer this interrogatory in full. Only Defendant has access to a comprehensive list of her defamatory statements and of the outlets to which she distributed them. Indeed, as the Court knows from the documents it reviewed in camera and found were not privileged, Defendant and Dershowitz were regularly communicating regarding how best to attack Ms. Giuffre. Accordingly, the Court should deny Defendant’s motion C. Interrogatory No. 7 This interrogatory seeks a catalogue of all of defamatory statements made against Ms. Giuffre. This Interrogatory calls for a legal conclusion as to what statements constitute “defamation,” and is, thus, improper, particularly as it is not limited to what has already been determined to be defamatory. Specifically, this interrogatory calls for Ms. Giuffre to search for 8  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 15 of 50 any statements made about her, throughout the internet and other sources, and determine whether or not they constitute defamation. Accordingly, this request is overly broad. See December 29, 2005 Discovery Order, American Civil Liberties Union, et. al. v. Alberto R. Gonzales, No. 98-- 5591, at p. 6 (E.D. Pa. Dec. 29, 2005) (“I find that interrogatory P is over-broad because it is not limited to speech defendant has already determined to be ‘harmful to minors’ under COPA but appears to command defendant to search for all speech over the entire internet and determine whether it is harmful to minors. As a result, defendant need not response to plaintiffs’ interrogatory P.”), at McCawley Decl. at Exhibit 2, for ease of reference. Alan Dershowitz is the only other known person to defame Ms. Giuffre. As with Interrogatory No. 5, there is no way for Ms. Giuffre to know the full extent of Alan Dershowitz’s defamation of her. She knows that he has called her a “prostitute” and a “bad mother” during his press conferences. See McCawley Decl. at Exhibit 3, Local 10 News article dated January 22, 2015. But, Ms. Giuffre does not know the full extent of Alan Dershowitz’s defamation, nor has she conducted legal analysis regarding any such defamation. Any party could attempt a Google search of such things to locate certain sources on the internet, but that is not what is contemplated by Rule 26(b)(1), Federal Rules of Civil Procedure, as such an exercise is unduly burdensome, and such information is well outside of Ms. Giuffre’s possession, custody, and control. Moreover, only Alan Dershowitz (Defendant’s joint defense partner) knows the comprehensive list of his defamatory statements and of the outlets to which he distributed them. Rule 26(b)(1) limits the scope of discovery based on an evaluation of “the parties’ relative access to relevant information.” As Dershowitz himself has admitted, he is actively involved with Defendant in this litigation. Defendant’s access to this information relative to Ms. Giuffre’s is unparalleled. It is unduly burdensome for Ms. Giuffre to troll the 9  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 16 of 50 internet for any instances of Dershowitz defaming her. He is not a party to this action. And, Ms. Giuffre’s single count of defamation does not allege in facts in relation to Dershowitz. Accordingly, the Court should deny Defendant’s motion. D. Interrogatory No. 8 Defendant seeks a list of all the individuals to whom Epstein trafficked Ms. Giuffre. Under Local Rule 33.3 interrogatories “may only be served (1) if they are a more practical method of obtaining the information sought than a request for production or a deposition, or (2) if ordered by the Court.” Defendant has already lit upon “a more practical method of obtaining the information sought.” She asked Ms. Giuffre for this information in her deposition. Moreover, Dershowitz, Defendant’s joint defense partner, asked for this information when he took her deposition, and Ms. Giuffre produced that deposition transcript to Defendant. This request is redundant, as this information has already been sought and Ms. Giuffre responded to questions at her May 3, 2016, deposition. See, e.g., May 3, 2016, Giuffre Dep. Tr. at 192-193, 200; 14; 191-193; 193-194; 201-202; 2020-203; 204; January 16, 2016, Giuffre Dep. Tr. at 15; 34; 50-51; 24; 41; 45; 51-54; 6; 38; 24-25; 18-19; 21; 61; 17-18; 20-21; 33; 18; 15-16; and 21. E. Interrogatory No. 13 1. Ms. Giuffre Has Answered Interrogatory No. 13 Completely As discussed above, Defendant’s entire motion violates Local Rule 37.1, but she does so most egregiously here. This interrogatory seeks Ms. Giuffre’s health care provider for any physical, mental, or emotional condition, prior to the Defendant’s defamation. Defendant does not include Ms. Giuffre’s hard-won and fulsome answer, which includes a bevy of providers going back many years. The reason for Defendant’s Rule violation with regard to this 10  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 17 of 50 interrogatory is quite obvious, and done in bad faith. Ms. Giuffre listed every physician known to her. The list is extensive. It looked like this: “Health Care Providers known to Ms. Giuffre who may have provided treatment subsequent to the defamation are as follows4: x Dr. Steven Olson, Jane Doe 2 x Dr. Chris Donohue, Jane Doe 2 x Dr. Peter Del Mar, Jane Doe 2 x St. Thomas More Hospital, Jane Doe 2 x Ms. Judith Lightfoot, Jane Doe 2 4 Health care providers known to have provided treatment both prior to and subsequent to Defendant’s January 3, 2015 defamation of Ms. Giuffre are listed in the supplemental responses for both Interrogatories 12 and 13. There may be additional crossover of providers that have treated Ms. Giuffre prior to the defamation, listed in the supplemental response to Integratory 13, who also provided treatment subsequent to the defamation. Ms. Giuffre reserves the right to revise, amend, and supplement her response to Interrogatory No. 12 with providers listed in her supplemental response to Interrogatory 13 if and when she becomes aware of any additional crossover. 11  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 18 of 50 x Medicare Australia Jane Doe 2 x Dr. Rauf Yousaf, Jane Doe 2 x CVS Pharmacy Jane Doe 2 x Walgreens Pharmacy Jane Doe 2 “Health Care Providers known to Ms. Giuffre who may have provided treatment prior to the defamation are as follows5: x Dr. John Harris Jane Doe 2 x Dr. Darshanee Majaliyana Jane Doe 2 x Dr. K. L. Lee Jane Doe 2 5 Health care providers known to have provided treatment both prior to and subsequent to Defendant’s January 3, 2015 defamation of Ms. Giuffre are listed in the supplemental responses for both Interrogatories 12 and 13. There may be additional crossover of providers that have treated Ms. Giuffre subsequent to the defamation, listed in the supplemental response to Integratory 12, who also provided treatment prior to the defamation. Ms. Giuffre reserves the right to revise, amend, and supplement her response to Interrogatory No. 13 with providers listed in her supplemental response to Interrogatory 12 if and when she becomes aware of any additional crossover. 12  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 19 of 50 Jane Doe 2 x Dr. M. Sellathurai Jane Doe 2 x Dr. Carol Hayek, Jane Doe 2 x Dr. Ahmed El Moghazi, Jane Doe 2 x Dr. Stephen Edmond, Jane Doe 2 x Campbelltown Hospital, Jane Doe 2 x Westmead Hospital, Jane Doe 2 x Ms. Judith Lightfoot, Jane Doe 2 x Royal Oaks Medical Center, Jane Doe 2 13  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 20 of 50 x Dr. Mona Devanesan, Jane Doe 2 x Dr. Karen Kutikoff Jane Doe 2 x Wellington Imaging Associates Jane Doe 2 x Dr. Ranjit Thind, Jane Doe 2 x Medicare Australia Jane Doe 2 x Dr. Wah Wah San, Jane Doe 2 x CVS Pharmacy Jane Doe 2 x - Walgreens Pharmacy Jane Doe 2 6 In addition, counsel for Ms. Giuffre made multiple phone calls to potential medical records custodians in and attempt to locate Dr. Kutikoff’s records. These efforts were unsuccessful. 7 On information and belief, this occurred after 1999 and prior to the January 3, 2015 defamation. Based on the uncertainty of the exact date, Ms. Giuffre reserves the right to revise, amend, and supplement her responses to Interrogatories 12 and 13. 8 Records from Medicare Australia are generally limited to 3 years. Ms. Giuffre is continuing to pursue additional records from prior to July 19, 2013 through their offices in Australia. 9 Ms. Giuffre has now identified Dr. Wah Wah San and Dr. Wah San to be the same provider to the best of her knowledge. She had previously listed both names. 14  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 21 of 50 Additionally, since Ms. Giuffre served this answer, she has learned of three other physicians who may have treated her, and have served Defendant with that information: x Dr. Timothy D. Hartwig, D.O.was identified in records produced by CVS pharmacy. Ms. Giuffre has requested those records, see GIUFFRE008346-8348. x Dr. James T. Nichols, M.D. was identified in records produced by CVS pharmacy. Ms. Giuffre has requested those records, see GIUFFRE008349-8351. x Dr. Rodolfo Torres Jr., M.D. was identified in records produced by CVS pharmacy. Ms. Giuffre has requested those records, see GIUFFRE008352-8354. Local Rule 37.1 exists for a reason. These answers are nowhere in Defendant’s brief. Ms. Giuffre is not withholding any medical records after 1999, including her pediatric records. The Court should deny Defendant’s request. 2. This Court Has Already Ruled Against Defendant on Pre-1999 Medical Records, so Defendant is Estopped From Bringing This Argument regarding Interrogatory No. 13 Defendant makes another argument bad faith. Defendant tries to argue - to the very Court that held otherwise - that medical records are discoverable prior to 1999. That is false. That was not the Court’s holding. The Court already, and specifically, rejected Defendant’s argument: MS. MENNINGER: Your Honor, the next topic are plaintiff’s medical records. THE COURT: I think I understand that. There is one thing, though. Are there any pre ‘99 medical records? MS. MENNINGER: Your Honor, the case law is quite clear that injuries that were preexisting -- THE COURT: I’m sorry. Excuse me. Go ahead. MS. MENNINGER: Jane Doe 2 15  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 22 of 50 Jane Doe 2 THE COURT: What’s the basis of your statement that we will call it the flashback? MS. MENNINGER: Your Honor, I believe -- THE COURT: Because, quite frankly, I was unaware of that. Is that my error? Are you telling me something that’s not quite right? *** THE COURT: . . . The medical records of the period ‘99 to 2002 will be produced and the plaintiff will indicate whether that production is complete or, if it isn’t complete, when it will be complete. As for the pre-’99 medical records, based on where we are at the moment, I do not believe that those are relevant. Because the damage issue relates, in my view, solely to the defamation. If that changes in any way, I will revisit that issue. April 21, 2106 Hr. Tr. at 11:15-12:25; 20:17-25. Nothing since the hearing has changed. Ms. Giuffre has not added a claim or a new category of damages or made any representations concerning her pre-1999 medical history. The Court has heard Defendant’s argument, and correctly rejected it. Defendant puts forth no new argument or facts that should disturb this ruling. Defendant tries to argue that she only wants the “names” of the physicians, and not the records. This argument is fatally flawed. The names of Ms. Giuffre’s physicians are necessarily part of her medical records. Additionally, the identity of a physician’s name also gives information regarding the type of medical treatment Ms. Giuffre received, particularly if that physician is specialist or works within a certain field. 16  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 23 of 50 Jane Doe 2 The tail is already wagging the dog regarding Ms. Giuffre’s search for, and production of, her medical records from 1999 to the present, the overwhelming majority of which are not at all relevant to this defamation case. Again, this Court held that Ms. Giuffre does not have to disclose her pre-1999 medical records, and Defendant gives no reason to disturb that ruling. Defendant is thus estopped from making this argument. 3. Interrogatory No. 13 is Disallowed Under New York Law Jane Doe 2 Being granted some medical discovery is not unlimited under New York law. See, e.g., Manessis v. New York City Dep’t of Transp., No. 02 CIV. 359SASDF, 2002 WL 31115032, at *2 (S.D.N.Y. Sept. 24, 2002) (concluding that “ability to pursue discovery regarding [plaintiff’s] medical records should be limited in some manner”); Evanko v. Electronic Systems Assoc., Inc., No. 91 Civ. 2851, 1993 WL 14458 at *2 (S.D.N.Y. Jan. 8, 1993) (applying the New York state physician-patient privilege, and holding that where plaintiff claimed that she suffered emotional distress, defendants did not have “a license to rummage through all aspects of the plaintiff’s life in search of a possible source of stress or distress,” including plaintiff’s medical records) (emphasis added); Wachtman v. Trocaire College, 532 N.Y.S.2d 943, 944 (N.Y. App. Div. 1988) (holding that the scope of a waiver of the physician-patient privilege in personal injury cases is “limited and does not permit discovery of information involving unrelated illnesses and treatment”). Even in a personal injury action (as opposed to a defamation action), the opposing party does not have carte blanche access to all medical records. See Sgambellone v. 17  Case 1:15-cv-07433-LAP Document 1328-18 Filed 01/05/24 Page 24 of 50 Wheatley, 165 Misc.2d 954, 958, 630 N.Y.S.2d 835, 838 (N.Y. Sup.Ct. 1995) (holding that in a personal injury action, plaintiff’s waiver of the physician-patient privilege “is not a wholesale waiver of all information about the plaintiff’s entire physical and mental conditions but a waiver only of the physical and/or mental condition that is affirmatively placed in controversy”). 4. Interrogatory No. 13 is Overly Burdensome Defendant’s request for Ms. Giuffre’s pediatric medical records is also overly burdensome. Pursuant to the Federal Rules of Civil Procedure, if requested documents are not yielded in a “reasonable inquiry,” Ms. Giuffre is not obligated to expend all of her time and resources on a quest to gather medical files from her birth to the present. Defendant wrongly suggests that it is only burdensome because her “mental condition was so complex or required so much medical attention that it would be unduly burdensome for her to ‘track down’ all her medical providers.” This is mere fiction, like much of Defendant’s brief, but even Defendant’s fictitious argument cuts against her request: she admits it is burdensome. At any rate, Ms. Giuffre made no such claim about the nature of the burden. It is one thing for Defendant to argue the law, but it is improper to make up facts. Ms. Giuffre’s claim of burden is based on the fact that it is burdensome for anyone to track down pediatric medical records from one’s childhood because such records are hard if not impossible to find. Like all children, as a child, Ms. Giuffre was not responsible for seeking, arranging, paying for, or managing her health care. She does not remember any physicians or their names or any treatments.10 There is no practicable or non- burdensome way of obtaining that information. This Court already denied this request for good reason. 10 Ms. Giuffre has provided pediatric records that she was able to collect from the time period she was with Defendant an Epstein including an emergency hospital visit when Ms. Giuffre was underage that Defendant and Epstein took her to in New York City. 18  Case 1:15-