gov.uscourts.nysd.447706.755.0.pdf

H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 1 of 75 1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 CV 7433 (RWS) 6 GHISLAINE MAXWELL, et al., 7 Defendants. 8 ------------------------------x New York, N.Y. 9 March 9, 2017 12:20 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 STANLEY POTTINGER PLLC 15 Attorneys for Plaintiff BY: STANLEY POTTINGER 16 S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH 17 Attorneys for Plaintiff BY: PAUL G. CASSELL 18 HADDON MORGAN AND FOREMAN, P.C. 19 Attorneys for Defendant Ghislaine Maxwell BY: LAURA A. MENNINGER 20 JEFFREY S. PAGLIUCA 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 2 of 75 2 1 THE COURT: Giuffre. I was thinking the two 2 plaintiff's motions with respect to Epstein and Barden and then 3 the Ransome application and the Edwards application. That's 4 what I was thinking, but I'll be guided by you all. 5 How does that sound to you, all? 6 MR. CASSELL: That sounds good, your Honor, although 7 we had one small request on behalf of Mr. Pottinger here. He 8 is handling the one Ransome motion. If that could be handled 9 first, he could be returned to his office more rapidly. 10 THE COURT: Why should we be nice to him? 11 MR. POTTINGER: Other people have said that before, 12 your Honor. It is entirely, of course, up to the Court. We'll 13 accommodate you any way you want. Ms. Menninger has been kind 14 enough to say -- I think I will speak for her to say she's 15 indifferent to going first or second with this particular 16 Ransome motion. It's entirely up to you. 17 THE COURT: Sure. 18 MS. MENNINGER: Your Honor, I did have one small 19 concern about the Ransome motion that might foreshorten the 20 hearing on this topic. As Your Honor is aware, at the time 21 plaintiff filed a motion for a protective order about 22 Ms. Ransome's discovery, I had been in the process of trying to 23 confer with them about some discovery issues. 24 THE COURT: I think we can cut through that pretty 25 easy by simply saying that I believe that as for any of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 3 of 75 3 1 witnesses in this case, the protective order should apply. 2 Anybody that wants it should have it, and if they wish it and 3 invoke it, then I think it's up to whoever thinks that that's 4 inappropriate to challenge it. 5 So I take it she would want it, and as far as I'm 6 concerned, she's got it. 7 MS. MENNINGER: We have no problem with that, 8 your Honor. I just meant in terms of the order of business 9 today, I did file a combined motion to compel Ms. Ransome in 10 response to the motion for a protective order. 11 THE COURT: You want to deal with all of those? 12 MS. MENNINGER: We haven't finished briefing on that, 13 your Honor. You have set that motion for hearing on March 30. 14 So, instead of bifurcating a motion for a protective order 15 regarding this witness and then hearing later the motion to 16 compel regarding this witness, it would be my suggestion, 17 because we haven't actually finished briefing those issues -- 18 THE COURT: What's your view about that? You've got 19 the protective order. So do you want to put the whole thing 20 over? The rest of it over, both sides of it? 21 MS. MENNINGER: There's no objection with the 22 protective order, your Honor. Of course it's all marked 23 confidential. The discovery has been marked confidential. The 24 deposition is marked confidential. 25 MR. POTTINGER: Thank you, your Honor. No, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 4 of 75 4 1 your Honor. Frankly, we would prefer to go forward with a 2 limited argument about the extent to which the protective order 3 actually applies in this case to this particular witness, the 4 reason being that the defendant has asked for some very 5 specific things to happen, documents to be produced that should 6 not be produced by a nonparty witness, and we would just simply 7 like to present that to the Court today, if we may. 8 THE COURT: That's the compel motion. 9 MR. POTTINGER: Well, yes, it is. 10 THE COURT: Let me ask you this: It's their motion. 11 MR. POTTINGER: We're actually responding to their 12 motion. 13 THE COURT: Is there anything further that anybody 14 wants to submit with respect to the compel motion? 15 MS. MENNINGER: Yes, your Honor. Their response was 16 just emailed over Tuesday night. It was 25 pages, and I 17 haven't, frankly -- I traveled here yesterday, and we are 18 needing to reply to it, which would be next week. 19 MR. POTTINGER: By the same token, your Honor, what 20 we're trying to do is make sure that this particular witness 21 who lives abroad is not subject to the continuing sense of 22 burden and harassment -- 23 THE COURT: I take it she has not been deposed. 24 MR. POTTINGER: She has been for ten hours, 25 your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 5 of 75 5 1 THE COURT: Where is she now? 2 MR. POTTINGER: She's in Spain, and what we would like 3 to do is cut short the notion that she has to come back again. 4 THE COURT: We don't know about that yet. What 5 they're talking about are records. So we'll put that part of 6 it over. Is it next week? 7 MS. MENNINGER: It's set, your Honor, on March 30. 8 It's also set on the same day our motions in limine are going 9 to be heard. One of our motions in limine is to exclude her 10 testimony altogether, which would foreclose the need for any 11 additional discovery obviously. 12 THE COURT: Our trial date is? 13 MS. MENNINGER: May 15, your Honor. 14 THE COURT: Well, look. Let's do this: Let's 15 accelerate it. Your reply is due when? 16 MS. MENNINGER: I believe next Tuesday, your Honor. 17 THE COURT: Then let's hear this next week. Let's 18 hear the compel motion next week. 19 MS. MENNINGER: That's fine, your Honor. 20 THE COURT: I think maybe that takes care of this. 21 MR. POTTINGER: For the moment, perhaps -- 22 THE COURT: For the moment. 23 MR. POTTINGER: Yes, your Honor. Two things, please, 24 very quickly. One is I believe we have a reporter for a 25 newspaper in the courtroom, and she has indicated obviously her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 6 of 75 6 1 desire in a brief conversation to comply with whatever 2 protective orders and confidentiality orders apply in this 3 case. 4 If we could ask the names of any of the individuals 5 who have been spoken here not be reported in the press, we 6 would appreciate that. She can speak for herself, but I 7 believe she would agree to that. 8 THE COURT: I'm not sure. I don't think we need to do 9 anything because I haven't heard anything today that is -- 10 MR. POTTINGER: Only the name of the witness. We did 11 speak the name of the witness here a few moments ago. If it's 12 agreeable, we would like that not reported. The witness for 13 whom we are seeking a protective order was spoken a moment ago. 14 I'm certainly not asking anyone to intrude on any newspaper's 15 First Amendment rights. We simply ask that that be treated 16 with respect. 17 THE COURT: What's the defense's view of that? 18 MS. MENNINGER: Your Honor, I don't care. I was 19 unaware that anyone had moved for confidentiality of the 20 identities. It's a witness they've designated for trial in 21 May, but I don't have a position really. 22 MR. POTTINGER: I've only noticed that her name, the 23 witness' name, has been redacted both in the defense papers and 24 in our papers. 25 THE COURT: Was it redacted in all the documents which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 7 of 75 7 1 were submitted? 2 MR. POTTINGER: I'm not sure. 3 THE COURT: On the motions. 4 MR. POTTINGER: Honestly, I'm not sure. I'm not 5 positive of that. 6 THE COURT: Let me take a look. 7 MS. MENNINGER: Your Honor, the beginning of the reply 8 was not redacted, and her name is in the first line. 9 THE COURT: Neither is the motion. 10 MS. MENNINGER: I believe it's already a matter of 11 public record. 12 THE COURT: I guess that's right. 13 MR. POTTINGER: If that's the case then, I withdraw my 14 request. What I might do is make an oral motion at the moment 15 to redact her name, if that's possible. We simply are trying 16 to avoid -- 17 THE COURT: I do think what's done is done. 18 MR. POTTINGER: It may or may not influence 19 your Honor's decision about this, but the reporter herself has 20 indicated her willingness not to use the name if requested, not 21 ordered, but requested. 22 THE COURT: Less is more. I'm for that. So let's do 23 it this way: I'll grant your application to redact the name 24 where it has appeared in the documents, and you'll have to 25 police that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 8 of 75 8 1 MR. POTTINGER: Yes. 2 THE COURT: That means I would ask the reporter not to 3 violate the confidentiality order as I've just amended it. 4 MR. POTTINGER: Yes. Thank you so much, your Honor. 5 We'll see you next week. 6 MS. MENNINGER: Your Honor, I apologize, but there is 7 one other issue that I think would affect our order of business 8 today, if you don't mind. 9 THE COURT: Yes. 10 MS. MENNINGER: Your Honor, with respect to 11 plaintiff's motion to compel work product from Mr. Barden, the 12 attorney Mr. Barden, as your Honor -- I'm not trying to get 13 into the substance of that argument, but a reply was submitted 14 again on Tuesday night in that case that was more than twice as 15 long as the original motion and contained entirely new 16 arguments, new documents, new everything that were not in the 17 original motion at all. 18 Again, I got it on Tuesday night at 7:30. I was 19 traveling yesterday, and I would ask that we -- I think there 20 is typically an order of operations that is supposed to occur. 21 Issues are supposed to be raised in the motion, there's a 22 response that addresses them, and then there's a reply. In 23 this case the reply was not a reply. It was really the motion 24 that was not filed originally. 25 Your Honor, I think basic fairness would dictate that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 9 of 75 9 1 we have an opportunity either to argue today just the motion in 2 response or alternatively, your Honor, provide us an 3 opportunity to submit a surreply to the 17-page reply that was 4 just tendered on Tuesday night. 5 MR. CASSELL: Your Honor, I think there are three 6 subheadings in the reply brief. Each of those subheadings 7 links directly to an argument that was made in the response 8 brief. So our reply brief simply replied to each of the three 9 components that were in the response brief. So I'm not sure 10 that this is any different than usual. We filed it Tuesday 11 night in anticipation of flying -- I flew from Salt Lake City, 12 Utah. 13 THE COURT: Did we have any agreement on filing dates? 14 MR. CASSELL: Not that I'm aware of. We've been 15 filing replies -- I think both sides have -- on Tuesdays for 16 Thursday hearings on the understanding it would give the Court 17 Wednesday to review the matters. 18 THE COURT: I'll grant the defendant an opportunity to 19 file additional papers. We'll hear the argument today, and if 20 the plaintiff feels it's necessary to file a surreply after 21 that, they may do so, but all of that to be completed within 22 the week on dates that you all will agree upon. 23 Now what? 24 MR. CASSELL: Would you like to hear argument on the 25 Epstein case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 10 of 75 10 1 THE COURT: No, but I will. 2 MR. CASSELL: Thank you, your Honor. Paul Cassell 3 with the law offices out at the University of Utah College of 4 Law on behalf of Ms. Giuffre. 5 Your Honor has certainly had an opportunity to read 6 the brief. So I won't belabor what we argue there. This is a 7 case that obviously involves Giuffre v. Maxwell, but the third 8 party in interest is Mr. Epstein. 9 As you know, Ms. Giuffre has made allegations that she 10 was sexually trafficked by Epstein's conspiracy in which 11 Ms. Giuffre was the madam or key lieutenant. So he's the first 12 most important witness in the case after the two identified 13 parties. 14 There doesn't seem to be any debate that your Honor 15 will decide this issue based on federal law, and the Second 16 Circuit in the LiButti case has very clearly said that a party 17 can call a witness for the purpose of having them invoke the 18 Fifth Amendment and then having the jury potentially draw an 19 adverse inference in their discretion based on that invocation 20 of the Fifth Amendment right to remain silent. 21 The LiButti case lays out four different factors that 22 your Honor is supposed to look at in deciding whether that's 23 appropriate, and the first factor and the most important 24 factor, according to the Second Circuit, is the nature of the 25 relationships involved. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 11 of 75 11 1 What we have here is the director of the conspiracy 2 and his key lieutenant, Maxwell, obviously in a very tight 3 relationship, and we made that argument in our initial brief. 4 In response, what we heard at page 2 of the response brief from 5 the defendants is that Maxwell and Epstein have -- and I'm 6 quoting here -- "have no relationship," which we find, frankly, 7 astonishing. 8 THE COURT: Let me ask you: There's been talk of a 9 joint defense agreement. 10 Does such an agreement exist? 11 MR. CASSELL: Well, your Honor knows that we have made 12 a request to have it produced, and your Honor directed the 13 defense to provide it to you in camera. So we're not familiar 14 with what's been provided to you in camera. 15 THE COURT: Has it been provided? Not as far as I 16 know. 17 MR. CASSELL: You directed them to do that in, I 18 believe, September for in-camera review because we requested it 19 as part of discovery. We wanted to see a copy. They objected, 20 and you said, well, I'll take a look at it in camera to see 21 whether it's relevant. 22 So the defense will have to speak to whether it's been 23 provided as directed. We have no control whether the defense 24 complies with the orders. 25 THE COURT: Excuse the interruption. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 12 of 75 12 1 I don't think I've gotten it. Right? 2 MS. MENNINGER: Your Honor, I do not recall. 3 Perfectly honestly, I do not recall if it's been tendered to 4 the Court or not. 5 THE COURT: It obviously is relevant under what I just 6 heard. So what's reasonable? Within a week? 7 MS. MENNINGER: Yes, your Honor. 8 THE COURT: Okay. 9 Yes. Sorry. 10 MR. CASSELL: Certainly, your Honor. You can see 11 where we're sitting. During the deposition of Ms. Maxwell, 12 there were objections raised on grounds of the joint defense 13 agreement. When we tried to depose Epstein, the Epstein lawyer 14 said -- 15 THE COURT: That's why I asked, because it's not clear 16 to me whether it's agreed that there is a joint agreement or 17 not. So that's why -- okay. 18 MR. CASSELL: We'd ask your Honor to look at that very 19 carefully because, remember. Just last week they filed a brief 20 in which they represented to your Honor, hey, Epstein shouldn't 21 be called here because we have -- again, I'm quoting. This is 22 a direct quote -- "have no relationship" with Epstein. 23 And yet I suspect in the next week you're going to get 24 a document showing they in fact have what kind of a 25 relationship? A common interest relationship, which of course SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 13 of 75 13 1 bears directly on the first LiButti factor, are the witness and 2 the party -- are they in a close relationship. 3 They're in a working relationship, a legal working 4 relationship. They're not in some remote event, in this very 5 lawsuit. But that's not all we have, your Honor. Remember. 6 They said they have again "no relationship." 7 Well, we provided to you in our reply brief emails, 8 and what do the emails show? We have a reporter here. So I 9 won't go into all the details, but your Honor has had a chance 10 to look into them, but you can see the defendant, Ms. Maxwell, 11 and Mr. Epstein talking about fabricating evidence by producing 12 a non-existent witness who will cover up for Ms. Maxwell. 13 MR. PAGLIUCA: Your Honor, I object to this. 14 THE COURT: Don't now. He's entitled to argue. 15 MR. CASSELL: Again, I'm not revealing the specifics 16 of the material that are under seal, but that's the nature of 17 the material that is under seal, and you can certainly see 18 them. 19 Again, for them to represent to this Court that there 20 is no relationship and then ask you to prevent what I think is, 21 frankly, the most pivotal and nonparty witness being presented 22 to the jury is highly unfair to Ms. Giuffre. 23 Now, also one of the things the Second Circuit asks 24 you to take a look at in the LiButti factors is whether the 25 witness in question is -- I think the phrase they use -- a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 14 of 75 14 1 non-captioned party in interest. 2 Well, clearly Epstein is a non-captioned party in 3 interest here. This case revolves around whether there was a 4 sex-trafficking organization with Epstein as its head and 5 Maxwell as his madam or key lieutenant. 6 Clearly, if Ms. Maxwell wins the case, that's good for 7 Epstein. Clearly he is very interested in the case which is 8 presumably why he was exchanging emails with Ms. Maxwell about 9 whether they could have witnesses come forward or things like 10 that. 11 Now, the other point to remember that I think the 12 defense has not responded to at all is we're going to have 13 jurors sitting here. They're going to here Ms. Giuffre say she 14 was sexually trafficked. They're going to hear Ms. Maxwell 15 say, I can't remember whether I was on the airplane with you or 16 not. 17 They're going to wonder, well, what does Epstein say 18 about all of this. The only way to answer the jury's natural 19 question is going to be, let's bring Epstein in and put him 20 onto the stand so the jury can hear what's going on. 21 Maxwell says, well, look. We want to ask him some 22 questions as well. We're, frankly, skeptical of that. 23 Remember the steps that Ms. Giuffre had to take to get him 24 deposed. 25 We made 16 separate attempts with a professional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 15 of 75 15 1 process server constantly being evaded, and finally we had to 2 come to the Court to seek your assistance with alternative 3 service of process, and then once we did that, then at that 4 point, one of the attorneys for Epstein came forward and said, 5 all right. I'll accept service. That was the only way we 6 could get him deposed. 7 Remember, the defense is, to our understanding, in a 8 joint defense agreement with Epstein. They can get him to 9 produce whatever information they want, and yet we've been the 10 ones who have been forced to do this, precisely because we know 11 that what Epstein says will be so corroborative of 12 Ms. Giuffre's testimony. 13 If he told the truth, he would have to explain what 14 was going on on those 23 flights where he, Ms. Giuffre, and the 15 defendant were flying into places such as London. 16 Now, the last thing your Honor has to look at in this 17 adverse inference issue is: All right. Of these questions 18 that are being asked, is there independent evidence that makes 19 those questions fair questions to propound to Mr. Epstein. 20 One of those questions is based, of course, on 21 Ms. Giuffre's testimony. So we do have independent evidence in 22 that sense. Even setting that aside, let's look at some of the 23 questions that we want to ask, and I don't believe the 24 questions themselves would be under seal. So I'll put those 25 into open court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 16 of 75 16 1 One of the questions we want to ask is: Did you meet 2 Prince Andrew, the Duke of York, in March 2001 in London? 3 That's the question we want to ask him. 4 And you notice what the defense responds to that is. 5 They say that's irrelevant. How can that possibly be 6 irrelevant when that's one of the central issues in the case? 7 By the way, is there independent evidence 8 corroborating that? Remember. We have a photograph showing 9 Prince Andrew, Ms. Giuffre, and Ms. Maxwell all together in 10 what appears to be London. 11 Again, Ms. Giuffre has testified about the 12 significance of that photograph. What do we hear from the 13 defendant? She can't remember where that photograph was taken. 14 So then we're forced to try to get another witness, Mr. Epstein 15 being of course the logical candidate to tell us exactly what 16 was going on there. 17 Another question we want to ask is: "On or about 18 March 9, 2001, you, the defendant in this case, Emmy Taylor, 19 and Virginia, flew on your private jet from Tangier to Luton 20 International Airport in London England's metropolitan area." 21 Is there corroborating evidence for that independent 22 evidence? Flight logs show that flight happening with exactly 23 those people there. Once again, Ms. Giuffre has testified that 24 the flight occurred. The defendant was deposed about that, and 25 once again, her memory failed her. She has no memory SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 17 of 75 17 1 whatsoever of this flight. 2 So then we called the pilot, and the defense says, 3 well, your records are inaccurate. Who is GM? Maybe that's 4 somebody else, Greg somebody or whatever. So they're 5 challenging all that. 6 So what do we do? We go to the next person listed on 7 the flight logs, which is Mr. Epstein, and we want to ask him 8 what is going on, and we want to present all of that 9 information to the jury. 10 So we think we easily satisfy the four LiButti 11 factors. We think we've provided independent evidence. We'd 12 be happy to provide more briefing on each and every question if 13 your Honor thinks that would be useful. 14 We believe it is highly appropriate to call 15 Mr. Epstein to this case and let the jury hear what he has to 16 say. 17 MR. PAGLIUCA: Thank you, your Honor. 18 I'd like to go through each of these factors, and I 19 think it's instructive to talk a little bit about the LiButti 20 case and how those factors do not apply in this case. 21 First, when we talk about the nature of the relevant 22 relationship, the LiButti court said that this relationship 23 should be examined from the perspective of a nonparty witness' 24 loyalty, and in this case, to the defendant. So that's the 25 first issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 18 of 75 18 1 There is an interesting comparison, I think, 2 your Honor, to the facts of LiButti and this particular case. 3 In the LiButti case, we're talking about Edith LiButti, who is 4 a child, and her father, Robert LiButti. Robert LiButti is 5 someone who was convicted of tax evasion and was using his 6 daughter, Edith LiButti, to hide money from the United States 7 government. 8 That was a significant fact for the LiButti court, the 9 nature of that relationship, father and daughter. The court 10 described Edith LiButti as a nominee as part of the 11 relationship between this father and daughter. Edith was a 12 nominee because she had a company that was created by her 13 father, Lion Crest, in which the assets that her father owned 14 were placed. So the daughter is then holding assets for her 15 father as a nominee in this Lion Crest company, and the asset 16 happened to be a horse in that particular case. 17 There were significant financial ties between Edith, 18 the daughter, and her father. Mr. LiButti was using the bank 19 account of Lion Crest to pay his bills. Mr. LiButti was using 20 the bank account of Lion Crest to pay his mortgage. 21 Mr. LiButti lived at the house that was owned by his daughter. 22 That's the type of significant relationship that the LiButti 23 court felt was appropriate to look at. 24 We compared that to the relationship here, which is 25 non-existent. Any relationship between Ms. Maxwell and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 19 of 75 19 1 Mr. Epstein ended over a decade ago. There's no dispute about 2 that. 3 Mr. Epstein and Ms. Maxwell have never been married. 4 They have no financial relationship. They have no financial 5 ties. So the disparity between the LiButti relationship and 6 the relationship of Ms. Maxwell is significant. 7 The common interest agreement which the plaintiff 8 makes so much about, your Honor, I submit to you is really not 9 a relationship that is significant in the sense of what the 10 LiButti court was talking about. 11 As you know, your Honor, it is not uncommon for 12 lawyers to enter into these agreements, and essentially it 13 allows for a voluntary sharing of information. That's it. 14 There is no way that anyone under a common interest agreement 15 can make somebody give them a document. You're not entitled to 16 information from the other lawyer or the other party. 17 In my mind, these are two one-way streets that never 18 really converge. If somebody gives you something under a 19 common interest agreement, that's fine, but you're not entitled 20 to anything. So there is no legal relationship of the sort 21 that would qualify under the LiButti factors to allow for any 22 adverse inference here. 23 They talk about these emails. Your Honor, I objected, 24 and I'm sorry. There is so much noise and vitreal in the 25 arguments and the papers that it distracts from the issues. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 20 of 75 20 1 When I read these papers now, I'm accused of criminal activity, 2 something that's never happened to me in my entire life. 3 When I read these papers, my client is accused of all 4 sorts of things. A good example, on page 3 of the reply brief, 5 there's a quote in the first full paragraph under the nature of 6 the relevant relationship, and the words "madam," which have 7 been repeated here today, are quoted with a citation, id, 8 there. That id purports to go to Ms. McCawley's declaration at 9 lines 17 through 19. 10 When you look there, there is no support for that 11 proposition. It is a misrepresentation in the pleadings, just 12 like, your Honor, when we get to this email issue that they are 13 so proud of here. 14 First I note that the emails -- they want to say that 15 Mr. Epstein is lying and Mr. Epstein is falsely inducing a 16 witness to come forward by the email that's in the middle of 17 page 4. 18 There's nothing false about that. There's no 19 misrepresentation there. That is simply again, in my view, a 20 misrepresentation by the plaintiff about the evidentiary 21 significance of this. 22 Note the date on these emails, your Honor, that begin 23 at page 4 and go through page 5 and compare the date of these 24 emails with the actual date of the purported defamatory 25 statement that was written by Mr. Barden and issued by Mr. Gow. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 21 of 75 21 1 These emails all are weeks after that statement is 2 issued. Why does that become important, your Honor? Because 3 not only does it not support the plaintiff's claim about the 4 relationship and the control here, it supports Ms. Maxwell's 5 position because this is a series of emails that is exchanged 6 or written by Mr. Epstein after the alleged defamatory remark 7 in this case. And Mr. Epstein is urging Ms. Maxwell to come 8 out with another statement, to make another statement denying 9 the allegations. 10 Well, guess what happens, your Honor. Precisely 11 demonstrating the lack of any control by Mr. Epstein and the 12 lack of any relationship between Mr. Epstein and my client, 13 what happens is my client declines to make any further 14 statement in this regard. 15 So not only does this not support any theory of any 16 relationship, it directly supports the fact that Ms. Maxwell is 17 not doing Mr. Epstein's bidding and really could care less 18 about what Mr. Epstein says she should or should not do. 19 What is buried in these papers, your Honor, and is 20 very disingenuous to the Court is the notion that this somehow 21 predated, predated, the January 4, 2015, statement that's at 22 issue in this case. These are all post hoc and, in fact, do 23 not support the motion that there's any collaboration that's 24 occurring before the defamatory statement is issued. 25 I want to turn next to -- well, your Honor, so we're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 22 of 75 22 1 clear, there is no economic relationship. That's established 2 in the testimony of Ms. Maxwell. They have not come forward 3 with any economic relationship. 4 There's no social relationship. That's established 5 and is uncontroverted in this case. There's no employment 6 relationship, and there's no family relationship. So, in 7 short, these folks were involved more than a decade ago and 8 have nothing to do with each other, other than the plaintiff 9 wants to harm my client. 10 The next factor, your Honor, the degree of control of 11 the party over the nonparty. I think it's significant to refer 12 to the LiButti case itself when we're talking about this 13 because what the LiButti court said -- and I quote. This is 14 from page 123 -- "The degree of control which the party has 15 vested" -- and I highlight the word "vested" your Honor -- "in 16 the nonparty witness. 17 So what we're talking about here in the second factor 18 is the party giving over control to the nonparty in some 19 fashion. In the LiButti case, Edith, the daughter, acceded 20 control over all of the assets to her father who was writing 21 his checks and paying for his lavish lifestyle. 22 The LiButti court characterized that conduct quite 23 disparagingly, frankly. We're talking about Mr. LiButti, 24 Robert's, "indiscriminate manipulations of monies and business 25 affairs." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 23 of 75 23 1 So we don't have that here, your Honor. Ms. Maxwell 2 has not vested any control over any issue to Mr. Epstein in 3 relationship to this litigation or her affairs. Here, in fact, 4 the record evidence is that the exact opposite is true. 5 Ms. Maxwell issued a statement and got sued for making that 6 statement. Mr. Epstein is not a party to this litigation and 7 has no control over this litigation. 8 Ms. Maxwell moved to compel Mr. Epstein's testimony. 9 I would challenge the plaintiff to find one case or one 10 circumstance where the person against whom an adverse inference 11 is being offered actually moved to compel the testimony. 12 THE COURT: We keep talking about the adverse 13 interest, but that's really not the issue, is it? Isn't the 14 issue whether or not he gets called? 15 If he's called, if he were to invoke his privilege, as 16 he has in the past, there presumably would be some kind of an 17 instruction which would be given to the jury as to what they do 18 about that, but that's not being decided now. 19 MR. PAGLIUCA: Well, I'm not sure. They're asking you 20 to decide that now, your Honor. They are asking you to decide 21 two things -- 22 THE COURT: I don't think so. I may be wrong, but I 23 don't think so. 24 Let me ask you this: If I bought your argument, if I 25 adopt your position, what are we going to do about a missing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 24 of 75 24 1 witness charge? 2 MR. PAGLIUCA: Well, we address that, your Honor. I 3 think there are a number of ways to deal with it through 4 instructions. First of all, my position is that Mr. Epstein's 5 absence hurts Ms. Maxwell in terms of any speculation that the 6 jury might enter into. 7 THE COURT: Well, he's going to call him. 8 MR. PAGLIUCA: Well, he's going to take the Fifth. 9 THE COURT: Maybe he will, and maybe he won't. He has 10 in the past, but we don't know. I presume he would, yes. 11 MR. PAGLIUCA: His lawyers have said -- 12 THE COURT: By the way, he's not here. 13 MR. PAGLIUCA: Who is not here? His lawyer is here, 14 your Honor. 15 THE COURT: I haven't heard from him. 16 MR. PAGLIUCA: I don't think he is on the docket 17 today. They have filed a separate motion, your Honor, to quash 18 Mr. Epstein's subpoena which is not being heard today. 19 So that is an issue that has not been briefed but is 20 before the Court at this point because Mr. Epstein has moved to 21 quash the subpoena that his lawyers accepted service of 22 essentially saying that he shouldn't have to appear to invoke 23 the Fifth Amendment. 24 So I may be a little bit ahead of the Court, given the 25 pleadings that have been filed but not fully briefed before SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 25 of 75 25 1 your Honor. 2 THE COURT: Well, logically speaking, doesn't that 3 issue take precedence over this? 4 MR. PAGLIUCA: What I would suggest to you, 5 your Honor, is if the Court were to decide that there is no 6 adverse inference against Ms. Maxwell based on Mr. Epstein's 7 invocation of the Fifth Amendment privilege, all of this 8 becomes moot because there would be no reason for Mr. Epstein 9 to testify, because the only reason for Mr. Epstein to testify 10 would be so the plaintiffs could then say, see. He took the 11 Fifth. You should hold that against Maxwell. That's what 12 they're asking you to do, your Honor. 13 If he simply comes in and says, I take the Fifth, 14 frankly, that's not what's being asked of your Honor, but I 15 suppose you could issue an instruction that says, you can't 16 hold that against either party. You can hold it against 17 Epstein, but you can't -- 18 THE COURT: You can draw whatever conclusion you want. 19 MR. PAGLIUCA: Then we would have to have additional 20 discussion about this because then it becomes what can people 21 argue about that in closing and what it means, etc. 22 However, what I am talking about is what they are 23 asking for, your Honor, which they are asking for you, first of 24 all, to say that they can play Epstein's deposition testimony 25 first. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 26 of 75 26 1 Second, that you will then look at a jury and say to a 2 jury, because Epstein took the Fifth, you can take an adverse 3 inference against Maxwell in this case. That's what they're 4 asking in their papers. When I'm going through the LiButti 5 factors, I don't see how this adds up here. 6 Continuing on, your Honor, in terms of the control 7 issue, had we had control over Epstein, we would want him to 8 testify. You know that we moved to compel his testimony, and 9 you, your Honor, denied that motion to compel and found that 10 Mr. Epstein had a Fifth Amendment privilege. 11 The control issue I think is also significant here, 12 your Honor, because not only does Ms. Maxwell not have control 13 over this topic, the plaintiff does. That is a central tenant 14 to this that, again, is unlike any other case that I have read. 15 The plaintiff here, her lawyers and the plaintiff, 16 have sought to revoke Mr. Epstein's nonprosecution agreement, 17 which is the primary basis for his invocation of the Fifth 18 Amendment privilege. They can withdraw that, and that then, in 19 my view, allows Epstein to testify or at least takes away the 20 primary basis for his non testimony. 21 THE COURT: I'm sure Epstein wouldn't agree with you. 22 MR. PAGLIUCA: It's a different day. However, in my 23 view, they have created this situation. Here is why, 24 your Honor. This is the control issue. They all know, because 25 of history of litigation, years of litigation against Epstein, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 27 of 75 27 1 a decade of litigation against Epstein -- what he does is he 2 takes the Fifth. They know that they get an adverse inference. 3 He has to settle the lawsuit against him. 4 So he's become a serial target for Mr. Edwards, who 5 has been involved in this since 2006, and that's what happens. 6 Serially Epstein is the defendant, he takes the Fifth, he 7 settles the lawsuit, and we move on. 8 That's part of their control of this issue. In my 9 view, they have manufactured him asserting a Fifth Amendment 10 privilege in this case so that they can then try to bootstrap 11 that against my client, and they're the ones that have the 12 control here. 13 The next factor, your Honor, compatibility of the 14 interests of the party and the nonparty. Again, compare this 15 to LiButti. In LiButti, the interests are perfectly aligned. 16 Mr. LiButti, Robert, the father, was taking his assets and 17 giving them to his daughter to hide them from the government. 18 Mr. LiButti had to assert the Fifth because they were 19 his assets. Their interests are aligned because if he says, 20 yes, they're my assets, guess what. The government takes the 21 race horse that was worth $400,000 and won a $77,000 prize that 22 was being held by the government at the time. 23 So they get together, and collude, and they said, 24 fine. These are your assets. If I'm asked, I'll take the 25 Fifth. They can't use that against you. You get to keep it, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 28 of 75 28 1 get to write the checks, and we all live happily ever after. 2 The court found that their interests were completely 3 compatible, and that is the third factor. 4 The fourth factor, your Honor, the nonparty, the key 5 figure in the litigation and playing a controlling role in the 6 litigation. Again, that's not happening here. 7 I understand their argument, but you have to take a 8 step back and say, wait a minute. This is a defamation action 9 that is as a result of Mr. Barden's writing of a statement that 10 gets issued by Mr. Gow, Mr. Barden, a lawyer, not Mr. Epstein. 11 Mr. Epstein didn't write the statement that is being at issue 12 here. Mr. Barden did, and you have his declaration. 13 So Mr. Epstein isn't controlling that statement, isn't 14 controlling the litigation around that statement. I think 15 that's important because, unlike LiButti, Mr. LiButti was 16 controlling his daughter and controlling the actions that were 17 occurring during the litigation. 18 This case is entirely different. Ms. Maxwell, her 19 lawyer, and her press agent issued the statement, not 20 Mr. Epstein. It might be a little different if Mr. Epstein 21 actually had something to do with, here. This is the statement 22 that we want you to send out there on behalf of Epstein, if 23 some interest of Epstein was being protected, but there's not. 24 There's no nexus between those two things. 25 So, your Honor, it would be patently unfair in this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  H39YGIUC Case 1:15-cv-07433-LAP Document 755 Filed 03/20/17 Page 29 of 75 29 1 case to allow a jury to see -- well, let me touch on one other 2 thing, your Honor. This is what happens when lawyers know that 3 somebody is going to invoke the Fifth Amendment privilege. 4 It is like chumming waters, and the sharks come out, 5 and they just go to town, and everybody asks the most 6 ridiculous question they can think of, and that's what happened 7 during Epstein's deposition. 8 There were some 500 highly flammatory or inflammatory, 9 as the case may be, questions that were asked by Mr. Cassell 10 during the course of the deposition, far ranging, having little 11 or nothing to do with this litigation. That then turns the 12 question into the answer and the evidence that the plaintiff 13 wants the jury to hear. That's just not fair. 14 They want to say to you, well, Ms. Maxwell can't 15 remember. Therefore, we get to ask these questions. Those two 16 things have nothing to do with each other. We're talking about 17 events that happened 15-plus years ago, and it is not unusual 18 or uncommon for people to not remember details of events 15 19 years ago. So that's a non sequitur. 20 Whether or not she remembers has nothing to do with 21 whether Epstein should be a witness or not. She can be 22 cross-examined on her memory. A jury can decide, we think 23 that's credible or not credible, based on the testimony from 24 the witness stand. Epstein brings nothing to that equation by 25 asserti