gov.uscourts.nysd.447706.1202.1_1.pdf

Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------X ............................................. VIRGINIA L. GIUFFRE, Plaintiff, v. 15-cv-07433-RWS GHISLAINE MAXWELL, Defendant. --------------------------------------------------X DEFENDANT’S SUBMISSION REGARDING “SEARCH TERMS” AND NOTICE OF COMPLIANCE WITH COURT ORDER CONCERNING FORENSIC EXAMINATION OF DEVICES Laura A. Menninger Jeffrey S. Pagliuca HADDON, MORGAN, AND FOREMAN, P.C. East 10th Avenue Denver, CO 80203 303.831.7364 Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 2 of 11  Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 3 of 11  documents relating otherwise to Plaintiff including her hospital records (RFP 25), passport (RFP 26), monetary payments made to her (RFP 27), her employment (RFP 28), and any person to whom she gave a massage (RFP 29). Ms. Maxwell conducted a thorough search of her email systems and her devices prior to her production on February 8, 2016. All documents identified as responsive were reviewed by counsel and either produced or placed on a privilege log. The First Responses were the subject of litigation in March and April 2016. This Court limited the scope of a number of the requests (see Transcript of March 17, 2016 and Order of April 15, 2016 (Doc. # 098), and Ms. Maxwell later produced, pursuant to this Court’s Order, documents that originally had been withheld pursuant to privilege. As of April 18, Ms. Maxwell’s production of documents responsive to Plaintiff’s First Request for Production of Documents was complete. Plaintiff served a Second set of Requests for Production on April 14. Those Requests primarily concerned police reports about Plaintiff’s various contacts with law enforcement and how the defense was able to obtain those publicly-available documents (RFP’s 1-5, 19). The Second Requests also sought:  Joint Defense Agreements with Mr. Epstein and Mr. Dershowitz (RFPs 6, 7, 9 and 10) and communications with Mr. Dershowitz’s counsel (RFP 11);  “all documents concerning Virginia Giuffre” (RFP 12);  any contracts with or agreement for legal fees to be paid by Epstein (RFP 13-15);  documents concerning public statements made by Ms. Maxwell (RFP 17-18). Again, Ms. Maxwell and her counsel conducted a thorough search and produced any responsive non-privileged documents. To date, Ms. Maxwell has produced 1,130 pages of documents. Litigation concerning whether the searches conducted were thorough enough then ensued leading to the instant submission. 2 Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 4 of 11  Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 5 of 11 searched yet there is no RFP related to those names, nor the vast majority of the other listed first and surnames.1 By correspondence of July 14, Ms. Maxwell’s counsel specifically identified the problematic terms, agreed to a limited list, and requested a substantive conferral call on this issue. See Menninger Decl., Ex. B. In that correspondence, Defendant’s counsel gave specific reasons for the objection to a number of the terms that were problematic in that they called for the search of common words, names or phrases that would likely result pulling documents completely unrelated to this case. Id. Counsel also suggested proposed limiting terms with respect to names of individuals to appropriately limit the scope and target the search. Id. (suggesting limitations on searches of names to “make some effort to match them to actual people who have some relationship to this case (like first name /3 last name or some parts thereof)”). After explaining the appropriate and well-reasoned objections to certain terms, defense Counsel agreed to search over 110 of Plaintiff’s proposed search terms, despite the fact that many of those terms were objectionable. Id. (“Although many of your other search terms are a 1 On or about June 27, 2016, Plaintiff’s counsel Bradley Edwards and Defendant’s counsel Jeffery Pagliuca held a telephone meet and confer conference on a number of issues. Among the issues raised by Mr. Pagliuca was the overbreadth of the proposed search terms. The discussion was left that Mr. Edwards would talk with Plaintiff’s team of lawyers to narrow the scope, as Mr. Pagliuca understood it. Thus, contrary to the representation in the Motion, Ms. Maxwell’s counsel did inform Plaintiff’s counsel of their disagreement with the proposed search terms. As well, Mr. Pagliuca informed Mr. Edwards that because he, Laura Menninger and Ms. Maxwell were all traveling on vacations in the weeks before and after the 4th of July holiday, that they would need additional time to comply with the Court’s Order and provide the production. Mr. Pagliuca and Mr. Edwards agreed that productions would be made prior to Ms. Maxwell’s second deposition, scheduled by agreement on July 22, 2016. Based on this discussion, defense counsel was blindsided when they received the Motion for Sanctions, anticipating that they would soon be receiving a substantially limited and modified list of proposed search terms to permit search and production prior to the July 22 deposition. In the interim, all of Ms. Maxwell’s electronic devices had been sent for imaging. Defense counsel corresponded with Plaintiff’s counsel upon receipt of the Motion for Sanctions, requesting that it be withdrawn (without prejudice), pending completion of conferral on the search terms as required by this Court’s specific and general orders on conferral. It appears there was a miscommunication between Plaintiff’s own counsel on this issue, as well as between counsel for both of the parties; but, it was clearly just that – a miscommunication and misunderstanding on where things stood. 4 Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 6 of 11 Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 7 of 11  Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 8 of 11 with anyone that Plaintiff believed was or might be a witness, although no discovery requests called for such communications. Consequently, during the conferral call, Plaintiff’s counsel agreed to withdraw the vast majority of objectionable terms. She also agreed to supply a list of witnesses who she believes truly might in some way relate to “massages” and submit that to defense counsel. See Menninger Decl., Ex. D. Plaintiff thereafter provided an additional 66 terms, all names, which Plaintiff claims she has some reason to believe are “related to massages.” Menninger Decl. Ex. E. Ms. Maxwell does not believe that searching these terms is appropriate, because, for example, the names include a journalist (Vicky Ward), Mr. Epstein’s elderly secretary, and various business people that form part of Plaintiff’s false narrative regarding her “sex trafficking,” and searching for names in the absence of a topic (i.e., massages) is well-beyond the actual requests for production. Nevertheless, Ms. Maxwell did in fact run all of the names proposed by Plaintiff against the forensic images of Ms. Maxwell’s computers and her email accounts. The second search yielded 284 additional documents, each of which were reviewed individually by counsel for Ms. Maxwell. Menninger Decl. paragraph 8 and 9. Again, not a single responsive, non-privileged document was located; the vast majority of documents were pleadings from this case. The complete list of terms run against Ms. Maxwell’s electronic devices and email accounts as agreed to by the parties is attached. Menninger Decl., Ex. F. Compliance with the Court’s Order to run agreed to terms was completed by July 21, 2016, prior to Ms. Maxwell’s second deposition. 7 Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 9 of 11  Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 10 of 11 Ms. Maxwell hereby respectfully requests that: i. Plaintiff Virginia Giuffre’s Motion for an Adverse Inference Instruction Pursuant to Rule 37(b), (e) and (f), Fed. R. Civ. P., be stricken; ii. Ms. Maxwell be awarded the costs of engaging the forensic examiner. Dated: August 1, 2016. Respectfully submitted, /s/ Laura A. Menninger Laura A. Menninger (LM-1374) Jeffrey S. Pagliuca (pro hac vice) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Phone: 303.831.7364 Fax: 303.832.2628 [email protected] Attorneys for Ghislaine Maxwell 9  Case 1:15-cv-07433-LAP Document 1202-1 Filed 01/27/21 Page 11 of 11 CERTIFICATE OF SERVICE I certify that on August 1, 2016, I electronically served this Defendant’s Submission regarding “Search Terms” and Notice of Compliance with Court Order Concerning Forensic Examination of Computer Device via ECF on the following: Sigrid S. McCawley Paul G. Cassell Meredith Schultz 383 S. University Street BOIES, SCHILLER & FLEXNER, LLP Salt Lake City, UT 84112 401 East Las Olas Boulevard, Ste. 1200 [email protected] Ft. Lauderdale, FL 33301 [email protected] [email protected] J. Stanley Pottinger Bradley J. Edwards 49 Twin Lakes Rd. FARMER, JAFFE, WEISSING, EDWARDS, South Salem, NY 10590 FISTOS & LEHRMAN, P.L. [email protected] 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 [email protected] /s/ Nicole Simmons Nicole Simmons 10