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Case 1:15-cv-07433-RWS Document 160 Filed 05/25/16 Page 1 of 12
t1nited States District Court
Southern District of New York
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
PLAINTIFF'S REDACTED MOTION FOR LEAVE TO SERVE THREE DEPOSITION
SUBPOENAS BY MEANS OTHER THAN PERSONAL SERVICE
Plaintiff by and through her undersigned counsel, hereby files this
Motion for Leave to Serve Three Deposition Subpoenas by Means Other Than Personal Service.
The three persons to be subpoenaed — Jeffrey Epstein, and
were each involved in the sexual abuse and sexual trafficking at issue in this case. It appears that
all three of them have evaded attempts to personally serve them (and two of the persons, Epstein
and M, have attorneys who have not been authorized by their clients to accept service). Ms.
seeks leave to provide service by several alternative means that are designed to assure
actual notice is provided to these persons. See Declaration of Sigrid McCawley ("McCawley
Decl.") at Composite Exhibit 1, Subpoenas for Jeffrey Epstein,
) and . This Court has repeatedly held that Fed.
R. Civ. P. 45 permits alternative service in appropriate circumstances, and this case presents such
circumstances. Accordingly, the Court should grant Ms. leave to serve deposition
subpoenas by alternative means.
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BACKGROUND
At the heart of this case lies Ms. allegations that that she was sexually abused
by Jeffrey Epstein and the Defendant. Ms. has also alleged that Epstein and the
Defendant were aided by others who played keys roles in the sex trafficking organization,
including and Defendant has called Ms. a "liar" and
Ms. is now in the process of assembling testimony and evidence to prove the truth of her
allegations.
Apart from the Defendant in this case, Jeffrey Epstein is the most important person for
Ms. to depose. It was Epstein who gave the directions to Maxwell to recruit Ms.
and bring her to Epstein's mansions to be sexually abused.
Because of Epstein's importance to this case, Ms. has diligently tried to
personally serve Epstein with a subpoena for his deposition. Epstein, however, appears to have
no interest in answering questions under oath about the scope of his sex trafficking organization
and he has not authorized his lawyer to accept service of the subpoena. On March 7, 2016, Ms.
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counsel contacted counsel for Epstein to seek agreement that he would accept service
of the subpoena in this matter. See McCawley Decl. at Composite Exhibit 3, Electronic
Correspondence to Attorney Marty Weinberg. Ms. was unable to obtain that agreement
so she retained an investigative company to attempt to locate Epstein for purposes of personal
service. As explained in the attached affidavit, the Alpha Group Investigators commenced
efforts to personally serve Epstein on April 26, 2016. See McCawley Decl. at Exhibit 4
Affidavit of Douglas G. Mercer, Chief Investigator Alpha Group. Those efforts have continued
for weeks, and included over sixteen (16) attempts to personally serve Epstein, including as
recently as May 18, 2016, at which time the investigator affixed the subpoena to the front door of
Epstein's residence and mailed copies of the subpoena to both of his New York addresses along
with a witness check. Counsel for Ms. also provided a copy of the subpoena to Marty
Weinberg, Epstein's attorney.
Jeffrey Epstein is not the only key witness who has been evading Ms. efforts to
depose them. The next echelon in the sex trafficking organization below Epstein and the
Defendant includes and Ms. alleges that they were
heavily involved in the sex trafficking. Both and appear repeatedly on the
flight logs of Jeffrey Epstein's aircraft. The U.S. Attorney's Office for the Southern District of
Florida specifically identified both and as among four named "potential co-
conspirators of Epstein" in the non-prosecution agreement it executed with Epstein as part of his
guilty plea to Florida state sex offense charges. See Non-Prosecution Agreement, In re:
Investigation of Affrey Epstein at 7. Additionally, both and previously
As recently as today, Ms. counsel continues to attempt to negotiate acceptance of service of
the subpoena for Mr. Epstein, which now includes a request that his deposition take place in the U.S.
Virgin Islands but has still not received an agreement to accept service. See McCawley Decl. at
Composite Exhibit 3, Correspondence with Marty Weinberg, counsel for Jeffrey Epstein.
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invoked their 5th amendment privileges when asked about their involvement in Epstein and
Defendant's sex trafficking ring.
As with Epstein, however, and appear to be evading efforts to serve
them. On March 31, 2016, Ms. counsel reached out to counsel to seek
agreement that she would accept service of the subpoena in this matter. See McCawley Decl. at
Exhibit 5, Electronic Correspondence with Bruce Reinhart, of McDonald Hopkins, LLP in West
Palm Beach, Florida. Mr. Reinhart represented that Ms. refused to allow her counsel to
accept service of the subpoena, so Ms. was forced to commence the efforts to attempt to
personally serve her with the subpoena. As explained in the attached affidavit, the Alpha Group
Investigators commenced efforts to personally serve on April 26, 2016. See McCawley
Decl. at 4, Affidavit of Douglas G. Mercer, Chief Investigator Alpha Group. Those efforts have
continued with over nineteen (19) attempts at service and concluded as recently as May 18,
2016, at which time the investigator affixed the subpoena to the front door of residence
and mailed copies of the subpoena to both of her New York addresses. Ms. counsel
also provided a copy of the subpoena to attorney.
has also been evading service. Ms. has had her investigators make
efforts to attempt to personally serve at her New York residence, and also made
efforts to try to personally serve her while on a trip to California, but has been unable to obtain
personal service. Ms. investigators made over ten (10) attempts to personally serve
See McCawley Decl. at Exhibit 4, Affidavit of Douglas G. Mercer, Chief
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Investigator Alpha Group. In addition, counsel for Ms. reached out to Ms.
former counsel but he indicated that he could not accept service as he no longer represents her.
See McCawley Decl. at Exhibit 6, Electronic Correspondence with Jack Goldberger, at
Atterbury, Goldberger & Weiss, P.A., in West Palm Beach, Florida.
In other litigation relating to Jeffrey Epstein, both and asserted their
fifth amendment rights when asked questions about Defendant's recruitment of underage girls.
Q Do you know Ghislaine Maxwell?
A Fifth.
Q Is that somebody who helped Jeffrey Epstein to devise the scheme to allow him
access to various and a variety of underage minor females?
A Fifth.
Q somebody that was also involved in the planning of this scheme
to gain access to underage minor females?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 29-30
Q Isn't it true that yourself, Ghislaine Maxwell and had access to a
master of list of underage minor females names and phone numbers so they could
be called for the purpose of coming to Jeffrey Epstein's house to be sexually
molested?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 33-34
Q Do you know Jane Doe-102
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 47-48
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Q Are you aware of Jeffrey Epstein and Ghislaine Maxwell's sexual interaction
with Jane Doe-102 when she was a minor?
Q This is one of many underage minor females that was trafficked basically
around the globe to be sexually exploited and abused; is that correct?
A Fifth.
Q Was that typical of Jeffrey Epstein and Ghislaine Maxwell to sexually abuse
minors on Jeffrey Epstein's airplane?
A Fifth.
Q And also typical of Ghislaine Maxwell and Jeffrey Epstein to prostitute or pimp
out underage minors to friends?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 47-48
Q Ghislaine Maxwell is somebody who you know to be bi-sexual, true?
A Fifth.
Q You know that Ghislaine Maxwell engaged in sexual acts with underage minor
females, true?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 58-59
Q. Did Ghislaine Maxwell introduce you to Jeffrey Epstein for the first time?
THE WITNESS: On the instruction of my lawyer, I must invoke my Fifth
Amendment right.
See McCawley Decl. at Exhibit 8, March 24, 2010 Dep. Tr. p.21
d
Q. All right. All right. Ms. would you agree with me that there was an
agreement between Jeffrey Epstein, Ghislaine Maxwell, Jean-Luc Brunel,
yourself and to bring in girls from out of state that were
underage?
THE WITNESS: On the instruction of my
lawyer, I must invoke my Fifth Amendment right.
See McCawley Decl. at Exhibit 8, March 24, 2010 Dep. Tr. p. 38
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Q. Would you agree with me that Ghislaine Maxwell provides underage girls to
Mr. Epstein for sex?
THE WITNESS: Upon the instruction of my lawyer, I must invoke my Fifth
Amendment privilege.
See McCawley Decl. at Exhibit 8, March 24, 2010 Dep. Tr. p. 100
. Both and are key witnesses in this action because they
were present with Mr. Epstein and Maxwell during the time period when was
with Epstein and Maxwell.
ARGUMENT
A. The Court Should Permit Alternative Service
In the unique circumstances of this case, this Court should grant Ms. leave to
serve Jeffrey Epstein, and via means other than personal
service, because they are evading service of process and there are other means to assure actual
notice. Under Rule 45(b)(1) of the Federal Rules of Civil Procedure, "[s]erving a subpoena
requires delivering a copy to the named person ...." The purpose of "requiring delivery to a
named person is to `ensure receipt, so that notice will be provided to the recipient, and
enforcement of the subpoena will be consistent with the requirements of due process!"
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 262 F.R.D. 293, 304 (S.D.N.Y.
2009) (quoting Med. Diagnostic Imaging, PLLC v. CareCore Nat., LLC, Nos. 06 Civ. 7764 & 06
Civ. 13516, 2008 WL 3833238, at *2 (S.D.N.Y. Aug.15, 2008) (internal quotation marks
omitted)). See also First City, Texas-Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250, 255
(S.D.N.Y.2000) (finding that attaching a subpoena to the door, and mailing another copy to
counsel of record was sufficient). Cases not only from this Court, but also from others in the
Second Circuit, have interpreted that rule "liberally" to allow service so long as the "the type of
7
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service used `was calculated to provide timely actual notice.'" Aristocrat Leisure Ltd., 262
F.R.D. at 304 (quoting CareCore, 2008 WL 3833238, at *2 (noting that "nothing in the word
'delivering' [in Rule 45(b)(1)] indicates personal service, and a personal service requirement can
be unduly restrictive"); see also Cordius Trust v. Kummetfeld, No. 99 Civ. 3200, 2000 WL
10268, at *2 (S.D.N.Y. Jan. 3, 2000) (holding that because "alternative service by means of
certified mail reasonably insures actual receipt of the subpoena by the witness, the `delivery'
requirement of Rule 45 will be met"); JPMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08
CIV. 9116(PGG), 2009 WL 1313259, at *2 (S.D.N.Y. May 11, 2009) ("this Court joins other
courts in this District in holding that effective service [of a deposition subpoena] under Rule 45
is not limited to personal service" (internal quotation omitted).
A prerequisite for using means other than personal service is typically that the party
"requesting the accommodation diligently attempted to effectuate personal service." OceanFirst
Bank v. Hartford Fire Ins. Co., 794 F. Supp. 2d 752, 754 (E.D. Mich. 2011) (citing Franklin v.
State Farm Afire and Casualty Co., 2009 WL 3152993, at *2 (E.D. Mich. 2009). Here, Ms.
has diligently attempted to make personal service on each of the three individuals,
having made multiple attempts to personal service them, including going to different locations at
different times on different days, and attempting to reach them through their attorneys. See
McCawley Decl. at Exhibit 4, Affidavit of Douglas G. Mercer, Chief Investigator Alpha Group.
Indeed, it appears that the only reason that personal service has been unsuccessful thus far is that
the important witnesses Ms. is attempting to serve are fully aware of her efforts and are
attempting to evade service. This Court will recall that efforts to evade service are a familiar
practice of Jeffrey Epstein and his colleagues. As described in earlier pleadings in this case, for
example, the Defendant herself refused to comply with a deposition subpoena in an earlier case
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brought by one of Jeffrey Epstein's sexual assault victims. See Decl. of Sigrid McCawley at
Composite Exhibit 9, Maxwell Deposition Notice; Subpoena and Cancellation Payment Notice,
and January 13, 2015 Daily Mail Article.
Ms. proposes that she be permitted to serve her deposition notices by means other
than personal service. Ms. asks this Court to rule that she be permitted to serve each of
the three individuals in ways that are reasonably calculated to give them actual notice. The
specific means that Ms. proposes are the means that her investigators took on May 18th
of posting the subpoenas to the addresses associated with each of the witnesses and mailing the
subpoenas to those addresses with the witness fee check and providing copies of the subpoenas
via e-mail to the witnesses known counsel. See McCawley Decl. at Exhibit 4, Affidavit of
Douglas G. Mercer, Chief Investigator Alpha Group.
Means such as those described above have been approved by this Court in other cases.
For example, in Medical Diagnostic Imaging, PLLC v. Carecore National, LLC, 2008 WL
3833238 (S.D.N.Y. 2008) (Katz, J.), this Court allowed service of a deposition subpoena to be
made through mailing a copy of the subpoena to the witness' place of employment along with a
copy of the Court's order directing the witness to comply with the subpoena or face sanctions.
Id. at *3. Similarly, in ../PMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08 CIV. 9116(PGG),
2009 WL 1313259, at *3 (S.D.N.Y. May 11, 2009), this Court allowed service of a deposition
subpoena to be made by sending a copy of the deposition subpoena to the witness' place of
business and residence by certified mail; leaving a copy of the deposition subpoena at the
witness' residence and place of business with a person of suitable age and discretion; and
remitting a copy of the deposition subpoena by electronic mail and certified mail to counsel for a
related corporation. And, in at least two cases, this Court has found that certified mailing of a
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subpoena to the witness alone satisfies Rule 45. See Cordius Trust v.. Kummetfeld, 1999 U.S.
Dist. Lexis 19980, *5-*6 (S.D.N.Y.1999); Ultradent Products, Inc. v. Hayman, No. M8-85 RPP,
2002 WL 31119425, at *3 (S.D.N.Y. Sept. 24, 2002). Here, the means of service exceed those
approved in those other cases and should be permitted.
CONCLUSION
Ms. should be granted leave to serve Jeffrey Epstein, and
with deposition subpoenas by means other than personal service. As Ms.
has made multiple attempts at personal service, Ms. should be granted leave to serve
deposition subpoenas by the means employed by her investigators of posting the subpoenas to
the known locations and also sending the subpoenas via U.S. mail.
Dated: May 25, 2016
Respectfully Submitted,
BOLES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
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
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
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Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
d
2 This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 25th day of May, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel:
Fax:
Email:
Copies of this filing were also provided by e-mail to:
Marty Weinberg, counsel for Jeffrey E stein
Bruce Reinhart counsel for
/s/ Sigrid S. McCawley
Sigrid S. McCawley
12
EFTA00617962
t1nited States District Court
Southern District of New York
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
PLAINTIFF'S REDACTED MOTION FOR LEAVE TO SERVE THREE DEPOSITION
SUBPOENAS BY MEANS OTHER THAN PERSONAL SERVICE
Plaintiff by and through her undersigned counsel, hereby files this
Motion for Leave to Serve Three Deposition Subpoenas by Means Other Than Personal Service.
The three persons to be subpoenaed — Jeffrey Epstein, and
were each involved in the sexual abuse and sexual trafficking at issue in this case. It appears that
all three of them have evaded attempts to personally serve them (and two of the persons, Epstein
and M, have attorneys who have not been authorized by their clients to accept service). Ms.
seeks leave to provide service by several alternative means that are designed to assure
actual notice is provided to these persons. See Declaration of Sigrid McCawley ("McCawley
Decl.") at Composite Exhibit 1, Subpoenas for Jeffrey Epstein,
) and . This Court has repeatedly held that Fed.
R. Civ. P. 45 permits alternative service in appropriate circumstances, and this case presents such
circumstances. Accordingly, the Court should grant Ms. leave to serve deposition
subpoenas by alternative means.
1
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BACKGROUND
At the heart of this case lies Ms. allegations that that she was sexually abused
by Jeffrey Epstein and the Defendant. Ms. has also alleged that Epstein and the
Defendant were aided by others who played keys roles in the sex trafficking organization,
including and Defendant has called Ms. a "liar" and
Ms. is now in the process of assembling testimony and evidence to prove the truth of her
allegations.
Apart from the Defendant in this case, Jeffrey Epstein is the most important person for
Ms. to depose. It was Epstein who gave the directions to Maxwell to recruit Ms.
and bring her to Epstein's mansions to be sexually abused.
Because of Epstein's importance to this case, Ms. has diligently tried to
personally serve Epstein with a subpoena for his deposition. Epstein, however, appears to have
no interest in answering questions under oath about the scope of his sex trafficking organization
and he has not authorized his lawyer to accept service of the subpoena. On March 7, 2016, Ms.
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counsel contacted counsel for Epstein to seek agreement that he would accept service
of the subpoena in this matter. See McCawley Decl. at Composite Exhibit 3, Electronic
Correspondence to Attorney Marty Weinberg. Ms. was unable to obtain that agreement
so she retained an investigative company to attempt to locate Epstein for purposes of personal
service. As explained in the attached affidavit, the Alpha Group Investigators commenced
efforts to personally serve Epstein on April 26, 2016. See McCawley Decl. at Exhibit 4
Affidavit of Douglas G. Mercer, Chief Investigator Alpha Group. Those efforts have continued
for weeks, and included over sixteen (16) attempts to personally serve Epstein, including as
recently as May 18, 2016, at which time the investigator affixed the subpoena to the front door of
Epstein's residence and mailed copies of the subpoena to both of his New York addresses along
with a witness check. Counsel for Ms. also provided a copy of the subpoena to Marty
Weinberg, Epstein's attorney.
Jeffrey Epstein is not the only key witness who has been evading Ms. efforts to
depose them. The next echelon in the sex trafficking organization below Epstein and the
Defendant includes and Ms. alleges that they were
heavily involved in the sex trafficking. Both and appear repeatedly on the
flight logs of Jeffrey Epstein's aircraft. The U.S. Attorney's Office for the Southern District of
Florida specifically identified both and as among four named "potential co-
conspirators of Epstein" in the non-prosecution agreement it executed with Epstein as part of his
guilty plea to Florida state sex offense charges. See Non-Prosecution Agreement, In re:
Investigation of Affrey Epstein at 7. Additionally, both and previously
As recently as today, Ms. counsel continues to attempt to negotiate acceptance of service of
the subpoena for Mr. Epstein, which now includes a request that his deposition take place in the U.S.
Virgin Islands but has still not received an agreement to accept service. See McCawley Decl. at
Composite Exhibit 3, Correspondence with Marty Weinberg, counsel for Jeffrey Epstein.
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invoked their 5th amendment privileges when asked about their involvement in Epstein and
Defendant's sex trafficking ring.
As with Epstein, however, and appear to be evading efforts to serve
them. On March 31, 2016, Ms. counsel reached out to counsel to seek
agreement that she would accept service of the subpoena in this matter. See McCawley Decl. at
Exhibit 5, Electronic Correspondence with Bruce Reinhart, of McDonald Hopkins, LLP in West
Palm Beach, Florida. Mr. Reinhart represented that Ms. refused to allow her counsel to
accept service of the subpoena, so Ms. was forced to commence the efforts to attempt to
personally serve her with the subpoena. As explained in the attached affidavit, the Alpha Group
Investigators commenced efforts to personally serve on April 26, 2016. See McCawley
Decl. at 4, Affidavit of Douglas G. Mercer, Chief Investigator Alpha Group. Those efforts have
continued with over nineteen (19) attempts at service and concluded as recently as May 18,
2016, at which time the investigator affixed the subpoena to the front door of residence
and mailed copies of the subpoena to both of her New York addresses. Ms. counsel
also provided a copy of the subpoena to attorney.
has also been evading service. Ms. has had her investigators make
efforts to attempt to personally serve at her New York residence, and also made
efforts to try to personally serve her while on a trip to California, but has been unable to obtain
personal service. Ms. investigators made over ten (10) attempts to personally serve
See McCawley Decl. at Exhibit 4, Affidavit of Douglas G. Mercer, Chief
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Investigator Alpha Group. In addition, counsel for Ms. reached out to Ms.
former counsel but he indicated that he could not accept service as he no longer represents her.
See McCawley Decl. at Exhibit 6, Electronic Correspondence with Jack Goldberger, at
Atterbury, Goldberger & Weiss, P.A., in West Palm Beach, Florida.
In other litigation relating to Jeffrey Epstein, both and asserted their
fifth amendment rights when asked questions about Defendant's recruitment of underage girls.
Q Do you know Ghislaine Maxwell?
A Fifth.
Q Is that somebody who helped Jeffrey Epstein to devise the scheme to allow him
access to various and a variety of underage minor females?
A Fifth.
Q somebody that was also involved in the planning of this scheme
to gain access to underage minor females?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 29-30
Q Isn't it true that yourself, Ghislaine Maxwell and had access to a
master of list of underage minor females names and phone numbers so they could
be called for the purpose of coming to Jeffrey Epstein's house to be sexually
molested?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 33-34
Q Do you know Jane Doe-102
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 47-48
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Q Are you aware of Jeffrey Epstein and Ghislaine Maxwell's sexual interaction
with Jane Doe-102 when she was a minor?
Q This is one of many underage minor females that was trafficked basically
around the globe to be sexually exploited and abused; is that correct?
A Fifth.
Q Was that typical of Jeffrey Epstein and Ghislaine Maxwell to sexually abuse
minors on Jeffrey Epstein's airplane?
A Fifth.
Q And also typical of Ghislaine Maxwell and Jeffrey Epstein to prostitute or pimp
out underage minors to friends?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 47-48
Q Ghislaine Maxwell is somebody who you know to be bi-sexual, true?
A Fifth.
Q You know that Ghislaine Maxwell engaged in sexual acts with underage minor
females, true?
A Fifth.
See McCawley Decl. at Exhibit 7, April 13, 2010 Dep. Tr. at p. 58-59
Q. Did Ghislaine Maxwell introduce you to Jeffrey Epstein for the first time?
THE WITNESS: On the instruction of my lawyer, I must invoke my Fifth
Amendment right.
See McCawley Decl. at Exhibit 8, March 24, 2010 Dep. Tr. p.21
d
Q. All right. All right. Ms. would you agree with me that there was an
agreement between Jeffrey Epstein, Ghislaine Maxwell, Jean-Luc Brunel,
yourself and to bring in girls from out of state that were
underage?
THE WITNESS: On the instruction of my
lawyer, I must invoke my Fifth Amendment right.
See McCawley Decl. at Exhibit 8, March 24, 2010 Dep. Tr. p. 38
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Q. Would you agree with me that Ghislaine Maxwell provides underage girls to
Mr. Epstein for sex?
THE WITNESS: Upon the instruction of my lawyer, I must invoke my Fifth
Amendment privilege.
See McCawley Decl. at Exhibit 8, March 24, 2010 Dep. Tr. p. 100
. Both and are key witnesses in this action because they
were present with Mr. Epstein and Maxwell during the time period when was
with Epstein and Maxwell.
ARGUMENT
A. The Court Should Permit Alternative Service
In the unique circumstances of this case, this Court should grant Ms. leave to
serve Jeffrey Epstein, and via means other than personal
service, because they are evading service of process and there are other means to assure actual
notice. Under Rule 45(b)(1) of the Federal Rules of Civil Procedure, "[s]erving a subpoena
requires delivering a copy to the named person ...." The purpose of "requiring delivery to a
named person is to `ensure receipt, so that notice will be provided to the recipient, and
enforcement of the subpoena will be consistent with the requirements of due process!"
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 262 F.R.D. 293, 304 (S.D.N.Y.
2009) (quoting Med. Diagnostic Imaging, PLLC v. CareCore Nat., LLC, Nos. 06 Civ. 7764 & 06
Civ. 13516, 2008 WL 3833238, at *2 (S.D.N.Y. Aug.15, 2008) (internal quotation marks
omitted)). See also First City, Texas-Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250, 255
(S.D.N.Y.2000) (finding that attaching a subpoena to the door, and mailing another copy to
counsel of record was sufficient). Cases not only from this Court, but also from others in the
Second Circuit, have interpreted that rule "liberally" to allow service so long as the "the type of
7
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service used `was calculated to provide timely actual notice.'" Aristocrat Leisure Ltd., 262
F.R.D. at 304 (quoting CareCore, 2008 WL 3833238, at *2 (noting that "nothing in the word
'delivering' [in Rule 45(b)(1)] indicates personal service, and a personal service requirement can
be unduly restrictive"); see also Cordius Trust v. Kummetfeld, No. 99 Civ. 3200, 2000 WL
10268, at *2 (S.D.N.Y. Jan. 3, 2000) (holding that because "alternative service by means of
certified mail reasonably insures actual receipt of the subpoena by the witness, the `delivery'
requirement of Rule 45 will be met"); JPMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08
CIV. 9116(PGG), 2009 WL 1313259, at *2 (S.D.N.Y. May 11, 2009) ("this Court joins other
courts in this District in holding that effective service [of a deposition subpoena] under Rule 45
is not limited to personal service" (internal quotation omitted).
A prerequisite for using means other than personal service is typically that the party
"requesting the accommodation diligently attempted to effectuate personal service." OceanFirst
Bank v. Hartford Fire Ins. Co., 794 F. Supp. 2d 752, 754 (E.D. Mich. 2011) (citing Franklin v.
State Farm Afire and Casualty Co., 2009 WL 3152993, at *2 (E.D. Mich. 2009). Here, Ms.
has diligently attempted to make personal service on each of the three individuals,
having made multiple attempts to personal service them, including going to different locations at
different times on different days, and attempting to reach them through their attorneys. See
McCawley Decl. at Exhibit 4, Affidavit of Douglas G. Mercer, Chief Investigator Alpha Group.
Indeed, it appears that the only reason that personal service has been unsuccessful thus far is that
the important witnesses Ms. is attempting to serve are fully aware of her efforts and are
attempting to evade service. This Court will recall that efforts to evade service are a familiar
practice of Jeffrey Epstein and his colleagues. As described in earlier pleadings in this case, for
example, the Defendant herself refused to comply with a deposition subpoena in an earlier case
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brought by one of Jeffrey Epstein's sexual assault victims. See Decl. of Sigrid McCawley at
Composite Exhibit 9, Maxwell Deposition Notice; Subpoena and Cancellation Payment Notice,
and January 13, 2015 Daily Mail Article.
Ms. proposes that she be permitted to serve her deposition notices by means other
than personal service. Ms. asks this Court to rule that she be permitted to serve each of
the three individuals in ways that are reasonably calculated to give them actual notice. The
specific means that Ms. proposes are the means that her investigators took on May 18th
of posting the subpoenas to the addresses associated with each of the witnesses and mailing the
subpoenas to those addresses with the witness fee check and providing copies of the subpoenas
via e-mail to the witnesses known counsel. See McCawley Decl. at Exhibit 4, Affidavit of
Douglas G. Mercer, Chief Investigator Alpha Group.
Means such as those described above have been approved by this Court in other cases.
For example, in Medical Diagnostic Imaging, PLLC v. Carecore National, LLC, 2008 WL
3833238 (S.D.N.Y. 2008) (Katz, J.), this Court allowed service of a deposition subpoena to be
made through mailing a copy of the subpoena to the witness' place of employment along with a
copy of the Court's order directing the witness to comply with the subpoena or face sanctions.
Id. at *3. Similarly, in ../PMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08 CIV. 9116(PGG),
2009 WL 1313259, at *3 (S.D.N.Y. May 11, 2009), this Court allowed service of a deposition
subpoena to be made by sending a copy of the deposition subpoena to the witness' place of
business and residence by certified mail; leaving a copy of the deposition subpoena at the
witness' residence and place of business with a person of suitable age and discretion; and
remitting a copy of the deposition subpoena by electronic mail and certified mail to counsel for a
related corporation. And, in at least two cases, this Court has found that certified mailing of a
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subpoena to the witness alone satisfies Rule 45. See Cordius Trust v.. Kummetfeld, 1999 U.S.
Dist. Lexis 19980, *5-*6 (S.D.N.Y.1999); Ultradent Products, Inc. v. Hayman, No. M8-85 RPP,
2002 WL 31119425, at *3 (S.D.N.Y. Sept. 24, 2002). Here, the means of service exceed those
approved in those other cases and should be permitted.
CONCLUSION
Ms. should be granted leave to serve Jeffrey Epstein, and
with deposition subpoenas by means other than personal service. As Ms.
has made multiple attempts at personal service, Ms. should be granted leave to serve
deposition subpoenas by the means employed by her investigators of posting the subpoenas to
the known locations and also sending the subpoenas via U.S. mail.
Dated: May 25, 2016
Respectfully Submitted,
BOLES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
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
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
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Case 1:15-cv-07433-RWS Document 160 Filed 05/25/16 Page 11 of 12
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
d
2 This daytime business address is provided for identification and correspondence purposes only
and is not intended to imply institutional endorsement by the University of Utah for this private
representation.
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Case 1:15-cv-07433-RWS Document 160 Filed 05/25/16 Page 12 of 12
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 25th day of May, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel:
Fax:
Email:
Copies of this filing were also provided by e-mail to:
Marty Weinberg, counsel for Jeffrey E stein
Bruce Reinhart counsel for
/s/ Sigrid S. McCawley
Sigrid S. McCawley
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