gov.uscourts.nysd.447706.903.0.pdf

Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 1 of 46 1 H45AGIU1ps 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 Civ. 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. Oral Argument 8 ------------------------------x New York, N.Y. 9 April 5, 2017 12:10 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge@@ 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. 16 FARMER, JAFFE, WEISSING, EDWARDS, FISTOS, LEHRMAN, P.L. 17 Attorneys for Plaintiff BY: BRADLEY J. EDWARDS, ESQ. 18 HADDON, MORGAN AND FOREMAN, P.C. 19 Attorneys for Defendant BY: JEFFREY S. PAGLIUCA, ESQ. 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 2 of 46 2 H45AGIU1ps 1 (In open court) 2 THE COURT: OK. Epstein? 3 MR. EDWARDS: Yes. Good morning, your Honor. 4 THE COURT: Hi. 5 MR. INDYKE: Your Honor, Darren Indyke again, general 6 counsel for Mr. Epstein. 7 THE COURT: I'm sorry? 8 MR. INDYKE: My name is Darren Indyke, general counsel 9 for Mr. Epstein. I do not litigate. We discussed that last 10 time. Martin Weinberg, who drafted the motion, was at Logan 11 Airport this morning. Didn't get here on time. His flight was 12 fogged in because of something at La Guardia. He is now on an 13 11 o'clock flight into JFK and is going to come directly from 14 JFK to the court as soon as he gets here. 15 THE COURT: Let me ask you, what is Epstein's 16 residence? 17 MR. INDYKE: What is Epstein's -- he is a Virgin 18 Islands resident. 19 THE COURT: I beg your pardon? 20 MR. INDYKE: A Virgin Islands resident. 21 THE COURT: If that's true, then he is beyond my 22 reach. Correct? 23 MR. INDYKE: We do maintain that, yes. 24 MR. EDWARDS: Your Honor, can we be heard on that 25 issue? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 3 of 46 3 H45AGIU1ps 1 THE COURT: Sure. 2 MR. EDWARDS: Brad Edwards on behalf of the plaintiff. 3 While Mr. Epstein owns his own island and calls that 4 his domicile, he does have a residence in New York City. He 5 does regularly conduct business in New York City. 6 THE COURT: That doesn't do it under the rule, does 7 it? 8 MR. EDWARDS: Under Rule 45, it's where you reside, 9 where you regularly conduct business. And he regularly 10 conducts business in New York. In fact, as Mr. Indyke just 11 indicated, that is his primary business affairs attorney, who 12 has been in charge of his business affairs for many years. 13 Mr. Epstein employs numerous employees in New York City. 14 (Pause) 15 MR. EDWARDS: Your Honor, additionally, Mr. Epstein 16 has a home in New York City, a very large townhouse, a 50,000 17 square foot townhouse, where he employs many employees there. 18 THE COURT: But having a home in New York doesn't 19 subject him to the jurisdiction, I mean, a house in New York. 20 If that were the case, we would be in a lot of trouble, 21 wouldn't we? 22 OK. There is an issue. I don't have any facts except 23 what I've just been told with respect to his residence, 24 employed, regularly transacts business. 25 MR. EDWARDS: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 4 of 46 4 H45AGIU1ps 1 THE COURT: So "regularly transacts business," we 2 don't have any facts, which is not to say that you're not 3 correct. 4 MR. EDWARDS: Your Honor, that's why I was raising the 5 point about his home and who he employs. 6 THE COURT: No, no, no. I hear you. 7 MR. EDWARDS: I understand. 8 THE COURT: But I don't have a piece of paper that is 9 any evidence of that. 10 MR. EDWARDS: The point that I was trying to reach 11 was, we can't ask Mr. Epstein these questions because he 12 invokes the Fifth. 13 THE COURT: I understand. Good Lord, I understand 14 that. I'm just simply saying, I don't have any facts on which 15 I can say that he regularly transacts business here. I don't 16 have any facts. I hear what you say. Thanks. But that's 17 lawyer talk, and I don't have any facts. 18 OK. Well, I think I understand the problem. Tell him 19 I'll take the motion on submission. I've had enough of this 20 guy and his airplanes and his being late. We put it over at 21 his request. If he's fogged in Logan, I'm fogged in New York. 22 So what can I say. 23 MR. INDYKE: Your Honor, he is actually on his way to 24 the -- he's on his way now. 25 THE COURT: Well, of course he's on his way. Where? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 5 of 46 5 H45AGIU1ps 1 In an airplane? 2 MR. INDYKE: The airplane left at 11, so he's 3 probably -- 4 THE COURT: If he shows up before we're finished, I'll 5 hear him. OK? 6 MR. INDYKE: Thank you, your Honor. 7 THE COURT: All right. Now what's next? Where are 8 we? 9 MS. McCAWLEY: Your Honor, I think there is one motion 10 that is pending that we've pushed off, it's the defendant's 11 motion, to this day, because it deals with depositions in 12 general that they're trying to exclude. So it may be a good 13 starting point. Jeff, if you want to take the in toto motion? 14 MR. PAGLIUCA: Sure. That's probably the sensible 15 starting point because it, again, deals with them trying to get 16 rid of witnesses in their entirety, and, again, we waited until 17 today to do that. 18 THE COURT: Yes. 19 MR. PAGLIUCA: Your Honor, the motion that we are 20 talking about is captioned "Defendant's Motion in Limine to 21 Exclude In Toto Certain Depositions Designated by Plaintiff for 22 Use at Trial." We are talking specifically about four 23 witnesses. The first relates to Mr. Epstein, which I 24 understand we don't want to talk about anymore today, so I will 25 leave that, having heard your Honor on that issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 6 of 46 6 H45AGIU1ps 1 THE COURT: Well, I was just dealing with the subpoena 2 issue. 3 MR. PAGLIUCA: All right. Then I'm happy to talk 4 about it, your Honor. It does relate in part to what we are 5 talking about. And I will more narrowly focus it as a Rule 32 6 issue, as opposed to a subpoena issue. 7 The issue relates to the use of depositions at trial, 8 which, in my view, is governed by Rule 32 of the Rules of Civil 9 Procedure. And those rules are clear with regard to 10 depositions as to unavailability of witness. And then we talk 11 about the requirements that, whether they're dead, more than a 12 hundred miles away, illness, age, infirmity, etc. And in my 13 view, there is no unavailability under Rule 32 for Mr. Epstein 14 in this particular case. 15 There seems to be an attempt, I think, to -- or a 16 misunderstanding of sort of conflating Rule 32 and Rule 804. 17 Rule 804 of course deals with unavailability as defined under 18 the Federal Rules of Evidence for hearsay purposes, which is 19 different than Rule 32, as it relates to use of a deposition in 20 a trial. And so I don't think we can take Rule 804 and then 21 say that's the definition of unavailability. 22 Rule 804 unavailability applies to many things, and it 23 can apply to written statements. It can apply to testimony in 24 trial. But Rule 32 of the rules of civil procedure deals 25 specifically with depositions. And in my view, that has not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 7 of 46 7 H45AGIU1ps 1 been met as it relates to Mr. Epstein. 2 Mr. Rizzo is the second witness, your Honor. 3 Mr. Rizzo lives here in New York. He was deposed in New York. 4 And there has been no showing, and I don't believe there can be 5 any showing, that he is unavailable under Rule 32. I 6 understood from the response filed by the plaintiff that they 7 were checking with Mr. Rizzo's lawyer to see what his status 8 was. In my view that's not sufficient for this discussion 9 today. Unavailability under Rule 32 would require something to 10 happen. Mr. Rizzo would be sick or dead, something like that. 11 Simply saying we're checking with his lawyer doesn't satisfy 12 the requirements of Rule 32. And so I don't understand what 13 their position is, frankly. We took a discovery deposition of 14 Mr. Rizzo here in New York within a hundred miles of this 15 courthouse. Mr. Rizzo, if he's going to testify, should show 16 up. 17 What I'm afraid of, your Honor, is that there -- and 18 I'm not accusing, I'm just afraid, because, you know, call it 19 spider sense or something -- what can happen is, we get to 20 trial and then someone says, oh, gee, he went on vacation, and 21 so now he's more than a hundred miles away and we're going to 22 use the deposition transcript. That's not sufficient 23 unavailability. The party that's attempting to establish 24 unavailability has to show some good-faith effort to subpoena 25 the witness or get the witness here. As far as I know, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 8 of 46 8 H45AGIU1ps 1 Mr. Rizzo lives here in New York, and if he's going to testify, 2 he should testify in person. 3 The third witness that we're talking about here is 4 Dr. Esplin. The Court may recall that Dr. Esplin is a rebuttal 5 expert designated by the defense in this case specifically 6 relating to what we call the vouching opinions of Dr. Kliman 7 and Mr. Coonan, Professor Coonan. What happened with 8 Dr. Esplin is, he was designated for a very narrow purpose and 9 he was deposed for some seven hours. Most of the deposition by 10 plaintiff's counsel was far outside of the designated purpose, 11 and there were repeated objections during the course of the 12 deposition -- you know, this is not what he was hired for, he 13 hasn't looked at that, he doesn't have an opinion about that -- 14 and now they're trying to designate a rebuttal expert in their 15 case in chief to talk about opinions that he wasn't hired to 16 offer and didn't opine on in the first instance. 17 The briefing, I think, is sufficient on this, your 18 Honor, that, here, it's not appropriate designate a defense 19 rebuttal on these kinds of topics. And so I don't think that 20 they should be allowed to use that testimony, which is 21 objectionable, frankly, as rebuttal testimony. 22 The next witness, your Honor, is Alexandra Hall. 23 Ms. Hall was deposed in Florida. And the Court may recall that 24 Ms. Hall basically said, I don't remember anything about any of 25 this, and essentially didn't answer any substantive questions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 9 of 46 9 H45AGIU1ps 1 during the deposition. 2 The colloquy that has been provided to the Court as 3 part of briefing establishes that Ms. Hall was subpoenaed to 4 this deposition by the plaintiff. She appeared with her 5 counsel, Mr. Josephsberg, who represented her in the 102 case 6 that was filed against Mr. Epstein, many years ago. Ms. Hall 7 sat down, essentially -- I'm paraphrasing -- said, I've spent 8 years forgetting all of this, I've spent lots of time in 9 therapy forgetting all of this, I'm not going to remember any 10 of this, and basically refused to answer questions for whatever 11 reasons. 12 Mr. Josephsberg, her lawyer, made a proffer during 13 this deposition reaffirming that the witness didn't remember 14 anything and wasn't going to testify about anything. 15 Mr. Edwards plunked down what he says is her -- a transcript of 16 the statement she gave to the police. She didn't look at it at 17 all, and that's part of the record in this case; the lawyer 18 said it and she said it: I didn't look at it. She didn't turn 19 the page. Mr. Edwards said something like, isn't the thing you 20 told the police in 2006 true. She said yes. And that's 21 basically the deposition. 22 We have moved to exclude that in its entirety because, 23 you know, in part there really is no testimony here. There is 24 no establishment of any actual personal knowledge by this 25 particular witness. There has been no foundation for either SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 10 of 46 10 H45AGIU1ps 1 impeachment or refreshing recollection. This wasn't a 2 situation where the questioner then said, well, I'm going to 3 show you line 3, paragraph 5, or did you not say that. I'm 4 going to show you this, that, or the other thing. That never 5 happened during the course of this deposition. 6 So you have a witness sitting there, looking at 7 nothing, and now there is going to be this attempt, I think, to 8 introduce what I view as a hearsay document without foundation 9 into this trial through that deposition. 10 That, I think, primarily deals -- 11 THE COURT: Through Hall? You're suggesting that the 12 plaintiff will seek to introduce the police statement through 13 Hall? 14 MR. PAGLIUCA: Yes, or Recarey. I'm not sure which 15 one. But it doesn't change the quality of it being hearsay. 16 You can't wave a wand over this thing and say this is now not 17 hearsay. 18 THE COURT: If the statement gets in, if this 19 statement gets in, then the deposition would be admissible, 20 because she has said, yes, that's true. 21 MR. PAGLIUCA: This is the problem, your Honor. This 22 is the nuance that I think I'm trying to get to, which you have 23 narrowly focused now. There is a multiple-layer issue here 24 under the rules of evidence. The first is this. She had 25 pieces of paper in front of her, so I don't know how long the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 11 of 46 11 H45AGIU1ps 1 statement is. 2 THE COURT: Whatever. 3 MR. PAGLIUCA: Right. She never looked at it, not 4 once. She didn't read it. 5 THE COURT: Well, but she said that it was true. 6 MR. PAGLIUCA: No, no, no, no. The question was, is 7 what you told the police in 2006 true, words to that effect. 8 THE COURT: Oh. 9 MR. PAGLIUCA: Not, is this the statement you gave to 10 the police and is the contents of this statement true. There 11 was a very vague and generic question about conversations with 12 the police. And by the way, she talked with the police more 13 than one time. And so there's no specificity about what she is 14 referring to in that context. That's the first issue. 15 The second issue is -- we talked about this the last 16 time we were in court -- that particular transcript is not a 17 police record. That's the other problem here. That particular 18 transcript, Detective Recarey testified about. And he said, I 19 don't know what this is, it wasn't prepared by my department, 20 I've never looked at it. 21 And so whatever this document is has not been 22 authenticated by anyone. That's the first problem. 23 And then it gets in front of this witness who doesn't 24 look at it and doesn't read it and makes this blanket 25 statement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 12 of 46 12 H45AGIU1ps 1 So there is no foundation or establishment that this 2 is a prior recollection recorded or any of the requirements 3 under the 800 series of rules that deals with hearsay. So 4 there is no foundation for any of this. 5 THE COURT: OK. Thank you. 6 MR. PAGLIUCA: Finally, then, your Honor, we're 7 talking about Mr. Rodriguez and his two depositions that 8 occurred in 2009. This is a bit of an extended discussion, I 9 think, your Honor. 10 I need to set the stage here a little bit with regard 11 to Mr. Rodriguez and this deposition testimony. 12 THE COURT: Well, how does it get in? It's not in 13 this case. 14 MR. PAGLIUCA: Exactly. That's my point exactly. 15 You've cut right to the heart of this. They say, your Honor, 16 their argument is that, in spite of Rule 32, that somehow there 17 was -- that Mr. Epstein's lawyer, in this 2009 deposition, is 18 the predecessor in interest to Ms. Maxwell, and therefore, as a 19 predecessor in interest, it is admissible under Rule 804. 20 That's their position. 21 THE COURT: What do they have to show to establish 22 that? 23 MR. PAGLIUCA: Right. There are a couple of cases on 24 this issue, your Honor. What they have to show is what they 25 can't show. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 13 of 46 13 H45AGIU1ps 1 THE COURT: The case in which he was deposed was one 2 of the cases against Epstein? 3 MR. PAGLIUCA: Yes. Well, there were -- the answer is 4 yes. There were a number of cases against Mr. Epstein. There 5 was a series of Jane Doe cases. 6 THE COURT: That arose out of the nonprosecution 7 agreement and all of that. 8 MR. PAGLIUCA: Exactly. 9 So, your Honor, if I could approach, I wanted to talk 10 about the nonprosecution agreement and why the nonprosecution 11 agreement, I think, ends this discussion. 12 In order to be aligned as a predecessor in interest, 13 the proponent of the evidence has to show essentially that 14 whoever is there at the deposition has the exact same 15 motivation to cross-examine, to develop the testimony, as the 16 person that you're trying to use it against in this case. If 17 you look at this, what I just handed you, your Honor, and we go 18 to paragraph 8, which is found on page 4 of this document, 7 19 and 8, part of Mr. Epstein's agreement in this nonprosecution 20 deal is that the government gives Mr. Epstein a list of who 21 they say are victims of Epstein. Epstein agrees to confess 22 liability and damages in connection with these litigations, 23 your Honor. That's paragraph 7 and paragraph 8. So going into 24 these depositions, Mr. Epstein is rolling over and saying, I'm 25 not contesting liability, and I'm not contesting damages. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 14 of 46 14 H45AGIU1ps 1 That's paragraphs 7 and 8. 2 So how then, how then can Mr. Epstein's lawyer be in a 3 position to be aligned or defend Ms. Maxwell's interests in 4 2009? Ms. Maxwell isn't a party to this litigation. She's not 5 named as a defendant. She's not represented by counsel. There 6 is no agreement with her and Epstein that would allow for 7 Epstein to do anything to represent her in this deposition. 8 There's no indemnification agreement. There's no identity of 9 counsel. None of these things apply at all. And Mr. Epstein, 10 who has agreed to be liable under his deal, in which 11 Ms. Maxwell is not mentioned, by the way -- her name did not 12 appear in this nonprosecution agreement -- shows up, I don't 13 know why, since he has confessed liability and damages, and he 14 has absolutely no incentive to cross-examine Mr. Rodriguez 15 about anything. He's already agreed that he's responsible and 16 he's going to pay money. So there is no effort to do anything 17 on Ms. Maxwell's behalf. 18 This is, when you think about it logically, had 19 Ms. Maxwell been named as a defendant in that action, she would 20 have had separate counsel, because her interests are not 21 aligned with Epstein in these matters. She would have had the 22 opportunity to cross-examine this witness. And she would have 23 had the opportunity to develop her own evidence separate and 24 apart from Epstein. And the cross-examination of Mr. Rodriguez 25 would have gone something like this, your Honor: Well, isn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 15 of 46 15 H45AGIU1ps 1 it true that Epstein did those things, isn't it true that 2 Epstein was the guy that did whatever it is that we're talking 3 about, isn't it true that Maxwell did not have anything to do 4 with X, Y, and Z. None of these questions could be asked by 5 Mr. Epstein's lawyer because there would be an obvious conflict 6 of interest between those two positions. 7 There is one case that the plaintiffs cite for this 8 proposition that there is an identity of interests, and that 9 is, they cite a Third Circuit Court of Appeals case Lloyd v. 10 American Export Lines Incorporated, found at 580 F.2d 1179. 11 This is an interesting case, your Honor, and it highlights why 12 there is no identity of interest in this case. So first let me 13 start with, the Third Circuit is not the Second Circuit, as you 14 well know, your Honor. This 1978 case is a pretty complicated 15 fact pattern, your Honor, that involved a fight on a ship in 16 Yokohama, Japan. So two sailors on this ship got into a fight, 17 allegedly, and there was an action brought first in a Coast 18 Guard proceeding, apparently akin to some sort of Coast Guard 19 court-martial proceeding, and in that case, the Coast Guard 20 finder of fact, in sort of a trial, found against Mr. Alvarez, 21 who is the third-party defendant in this case. So both, the 22 two seamen, Lloyd and Alvarez, end up suing the ship owner and 23 have these competing claims. Lloyd is saying, I didn't assault 24 Alvarez, and Alvarez is saying, Lloyd assaulted me. And both 25 of them are saying that the ship owner is liable because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 16 of 46 16 H45AGIU1ps 1 they're negligent and they have an unseaworthy ship. 2 Mr. Lloyd doesn't show up in the Third Circuit -- I 3 guess in New Jersey -- no, Pennsylvania. Doesn't show up in 4 Pennsylvania for this trial. And so Mr. Alvarez is the only 5 person who testifies, and then wins, because Lloyd is not 6 there, and Alvarez wins against the ship company. It goes up 7 on appeal, and the American Export Lines, the company, said, 8 wait a minute, that's not fair because we want to introduce 9 Lloyd's testimony from the trial to show that Lloyd says he 10 didn't assault Alvarez. So that's sort of the backdrop to 11 this. 12 The Third Circuit Court of Appeals said, yeah, that's 13 not fair, that Alvarez gets to say whatever he wants to say and 14 there's directly contradictory testimony against Alvarez in 15 this Coast Guard hearing, so we're going to say for a variety 16 of reasons that it comes in. There is a, what I would call a 17 concurring/dissenting opinion by then-District Court Judge 18 Stern. And he actually says, you know, this is not a 19 predecessor-in-interest case, in his part of the opinion. And 20 what he does then is he actually cites to the Second Circuit 21 law on this and has to go back to 1900 for the case 22 Metropolitan State RY Co., and I couldn't figure out what "RY" 23 stands for, v. Gumby. And that's at 99 F. 192. And this Gumby 24 case is still good law and sort of sets the Second Circuit 25 apart from the Third Circuit with regard to these issues, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 17 of 46 17 H45AGIU1ps 1 because the Second Circuit in the Gumby decision takes a much 2 more conservative view of what it means to be a predecessor in 3 interest. And this Gumby case has been cited by other courts 4 for a number of years and essentially says, no, this is not 5 just simply, maybe you guys have something in common here. A 6 predecessor in interest is, I die, and I am the predecessor in 7 interest in my estate, or I am in privity of contract with 8 someone, and so therefore I'm the predecessor in interest; a 9 company bought my company and so the depositions in that 10 litigation are therefore admissible against the third or the 11 fourth company because these are all predecessors in interest, 12 not, Mr. Epstein signed a nonprosecution agreement that 13 required him to confess liability and damages and therefore, 14 ten years later, my client has to eat this deposition. That's 15 not a predecessor in interest. There are a lot of things I 16 could call that, but predecessor in interest wouldn't be one of 17 them, your Honor. 18 They also argue, your Honor, that somehow 19 Mr. Rodriguez's statements are reliable and therefore should be 20 admitted under the residual hearsay rule. Let me remind you 21 again, your Honor, this is Mr. Rodriguez, who either committed 22 perjury during this deposition that they are saying is so 23 reliable or manufactured evidence after the fact. You can't 24 have it both ways. He was asked questions about the book that 25 we talked about in court here, during his deposition, and he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 18 of 46 18 H45AGIU1ps 1 said he had no such document, and then called someone, 2 Mr. Edwards most likely, and said, hey, I'm going to sell you 3 this thing for $50,000, after which he was arrested and 4 prosecuted, and, the day of his change of plea hearing, then 5 goes to Miami and gets arrested for 922(g) charges for 6 possessing multiple -- multiple, dozens -- of weapons by a 7 convicted felon. 8 So this is the foundation upon which this reliability, 9 according to the plaintiff, is established, which, it's not. 10 I think that's all of the witnesses that relate to 11 this particular motion, your Honor. And so for all of the 12 reasons, we ask that you grant this motion and exclude these 13 depositions in their entirety. 14 MS. McCAWLEY: Thank you, your Honor. May I be heard? 15 It's Sigrid McCawley on behalf of Ms. Giuffre. 16 A couple of these issues, I think, are pretty easy to 17 deal with out of the box. As an initial matter, your Honor, 18 you knew you were here today to talk about whether Mr. Epstein 19 will show up pursuant to his trial subpoena. In an abundance 20 of caution because multiple witnesses in this case have been 21 evasive, we designated his testimony in case he doesn't show up 22 and in case we can't compel him to be here pending your 23 decision. We want him here in person, obviously. We believe 24 that he falls within those rules and should have to be here in 25 person. But in an abundance of caution we've designated his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 19 of 46 19 H45AGIU1ps 1 testimony. The defendants have argued that he is available, he 2 should be here as well. So we're on the same page with respect 3 to that. But if not, we have designated his testimony. And 4 that's -- they were quibbling over our designating that 5 testimony. We did it as a fallback in case there is an issue 6 with him being compelled to be here at trial. 7 THE COURT: One of the things that he's advancing, 8 regrettably not here at the moment, but is his Fifth Amendment 9 privilege. And am I not correct that there are a number of 10 decisions that say it's up to me to decide whether or not the 11 exercise of Fifth Amendment privilege comes in directly or by 12 deposition? 13 MS. McCAWLEY: I believe that's correct, your Honor. 14 We obviously -- there's been a number of motions pending with 15 respect to Mr. Epstein and the adverse inference with respect 16 to his taking his Fifth Amendment right, and you heard from my 17 wonderful colleague, Mr. Cassell, who argued last week about 18 the adverse inference and LiButti factors with respect to his 19 testimony coming in. So with respect to whether he is here in 20 person versus deposition, like I said, in an abundance of 21 caution, we've done both; we have compelled him to try to -- 22 subpoena him here in person as well as designating his 23 testimony. 24 We do believe that, if he were on the stand, we would 25 have the ability to ask him those questions. For example, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 20 of 46 20 H45AGIU1ps 1 Honor compelled him to produce, you'll remember, pursuant to 2 this subpoena, the pictures, which were no. 5 of that subpoena. 3 We have not been able to ask him questions about that at this 4 time because that was ruled on after we were able to take his 5 deposition. So we would like to have to have him here in 6 person and be able to have -- 7 THE COURT: Have any pictures been produced? 8 MS. McCAWLEY: They have not, your Honor, of course. 9 I mean, he is not -- obviously they're not here either. But if 10 we have the power to do that, we would like to have him here in 11 person. 12 So that's with respect to Epstein. 13 With Mr. Rizzo, we answered in our response, he will 14 be here. He is within the hundred-mile jurisdiction. So 15 Mr. Rizzo we again designate. 16 THE COURT: So that's not a question. 17 MS. McCAWLEY: Right, exactly. 18 Mr. Esplin, we designated him in case they pulled him 19 as an expert, so we designated that testimony. They have said 20 that they're going to have Mr. Esplin here at trial. So that 21 is not an issue anymore. 22 I would like to address the more poignant issues, and 23 that is with respect to Alexandra Hall. With all due respect 24 to my colleague, the deposition, which I would like to hand up 25 to your Honor, has 70 pages of substantive testimony from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 21 of 46 21 H45AGIU1ps 1 Alexandra Hall. She was 15 years old at the time she was 2 recruited in this circumstance, in the same exact manner that 3 my client was recruited. So I would like to just pass that up 4 so your Honor can consider that during my argument. 5 May I approach? 6 So, your Honor, the defendant would love to have you 7 believe that Alexandra Hall walked into this deposition and 8 didn't say anything. That is not the case. You can view it 9 with your own eyes in the testimony that she has given. Was 10 she apprehensive? Absolutely. Was she unhappy about having to 11 talk about this circumstance again? Absolutely. Did she say 12 everything in my police statement is correct? Absolutely. So 13 that is in her deposition. But she also gives substantive 14 testimony, very substantive testimony. I would like to direct 15 your attention to paragraph at page 25. She starts to talk 16 about how she was recruited. She was brought into the bedroom 17 under the guise of a massage. She was abused by Epstein during 18 that time. She was asked by him and others to bring friends 19 over of similar high school age. She was introduced to Nadia, 20 had to participate in group sex in a similar manner that my 21 client was subjected to. She was there over a hundred times 22 during this time period. She was brought in by people who are 23 associated with the defendant in this case because the 24 defendant, as you'll recall when you've heard Tony Figueroa's 25 testimony, was asked to bring young girls to the house. These SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 22 of 46 22 H45AGIU1ps 1 young girls then brought Alex Hall to the house. So there is a 2 chain of events directly linked to the defendant in this case. 3 Her testimony, they're trying to get rid of it because it's so 4 poignant, your Honor. It goes to the exact issues in this 5 case. Unfortunately, she's in Florida. We can't compel her to 6 be here. But we do have sworn deposition testimony by her. 7 And most importantly, at page 54 of 57, she testifies 8 that Epstein intimidated her, that his folks tried to get her 9 not to talk, not to cooperate with the police, which is very 10 similar to a number of other witnesses in this case. 11 So this testimony is very powerful. The jury should 12 be able to hear this, your Honor. There is no reason for it to 13 be excluded. It's substantive. Again, was she apprehensive? 14 Yes. 15 With respect to her -- and they've made arguments with 16 respect to the questions being leading, your Honor. We cite 17 you to U.S. v. Rojas. When you have a witness that's a sexual 18 abuse victim of this type, you're entitled to ask leading 19 questions in order to solicit the response. That's 520 F.3d 20 867. And that is a similar circumstance where, when a witness 21 is in a circumstance where they have been abused and they are 22 apprehensive and they are considered an adverse witness, at 23 that point you can ask leading questions to solicit that 24 testimony. 25 So, your Honor, she is a very important witness in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 23 of 46 23 H45AGIU1ps 1 this case, again because her circumstances are so substantially 2 similar to that of my client. And there is absolutely no valid 3 reason to be excluding her testimony. 4 With respect to the police report that she was asked 5 about, it was her statement, her police statement that was 6 shown to her during that deposition. She was given the 7 statement. She testified, the statement is correct, my 8 recollection, so it's recorded recollection there, at the time 9 in 2011. And that's at page 7. She states that, back from 10 November 21, 2005 when she provided that sworn statement, that 11 everything in that statement is correct. But then, she didn't 12 just stop there, your Honor. Again, it's 60 pages of 13 deposition. She gave substantive testimony reiterating what 14 happened to her during her time period with Epstein, again, 15 facts analogous to what happened to my client. 16 So, your Honor, her testimony is substantive. There 17 is absolutely no reason to be keeping it out in any way. And 18 we submit that it should be before the jury in this case. 19 And, again, I pointed you to some of those key pages. 20 But really from page about 20 back is all substantive testimony 21 in that deposition. 22 Now, I would like to move, if your Honor doesn't have 23 any questions with respect to Alex Hall, I would like to move 24 on to Alfredo Rodriguez. Obviously Alfredo Rodriguez is 25 deceased. If he was not, we would want to have him here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 24 of 46 24 H45AGIU1ps 1 Unfortunately we cannot. Why is he important? Rodriguez is 2 important because he testified that Maxwell, in this time 3 period, which was around the 2004, 2005 time period, with as 4 his direct supervisor at the home. So that contradicts 5 directly what Maxwell has said in her sworn testimony. So he 6 testified -- this is back years and years ago -- Who was your 7 supervisor? Who did you report directly to at all times, day, 8 night, etc.? It was Maxwell, the defendant in this case. He 9 worked at the Palm Beach house for several years. He testified 10 that Maxwell lived there. He testified regarding her computer, 11 direct contradiction to what she has testified, that there were 12 nude photographs on her computer, things of that nature. 13 He testified that he was directed to go to a high 14 school to drop off flowers to a high school student as part of 15 this massage recruiting scheme. He testified that Maxwell was 16 on a bank account for the Palm Beach house at the time he was, 17 they were jointly able to write checks, etc., etc. And he 18 testified regarding the numerous under-aged girls there. 19 Finally, at page 172 of his testimony, he testified 20 that Maxwell threatened him. When he left his employment, she 21 said, if you talk, you will be in trouble. And that's in his 22 testimony at page 172. 23 So, your Honor, we believe that Rodriguez is a highly 24 important witness. Yes, he is deceased. He is not here. I 25 understand that. They have called his credibility in question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 25 of 46 25 H45AGIU1ps 1 by saying, oh, he was arrested for stealing a black book. We 2 stipulate to that. We don't mind the jury knowing he stole a 3 black book. He was arrested for it. But that doesn't mean his 4 testimony regarding his employment and what he was required to 5 do, etc., shouldn't come into evidence. Again, if we could 6 call him we would. 7 So you heard a lot about the seaman case, which is 8 that Third Circuit case that we talked about. But more 9 important than seaman, which I do think is on point there, that 10 case, the 804(b)(1) rule is explicitly on point on this issue. 11 So it addresses former testimony, as we know. And that rule 12 says that former testimony in this situation, when someone is 13 unavailable, which the deceased qualifies as, can be offered 14 against a party who in a civil case was a predecessor in 15 interest, had an opportunity or similar motive to develop it by 16 direct cross or redirect examination. So you've heard from 17 Mr. Pagliuca, oh, well, Maxwell's lawyers weren't there, she 18 wouldn't have had any incentive, she would have a different 19 incentive than Epstein in that case. So these are the Jane Doe 20 cases, as your Honor knows. And the purpose of those cases, of 21 course Epstein was trying to call into question the witnesses. 22 So the point was to show that the witnesses were not telling 23 the truth. Rodriguez is being deposed in that case. So their 24 incentive is to show that he's wrong. 25 And what do they do? Epstein's lawyer spends time in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 26 of 46 26 H45AGIU1ps 1 that deposition cross-examining Alfredo Rodriguez specifically 2 about the testimony relating to Maxwell. So there is 3 cross-examination with respect to the claims of what was on 4 Maxwell's computer, etc. And I will point you to that. That's 5 at pages, you're going to see that at pages 364 through 369, 6 375 through 376, and 416 to 417. 7 So while they say, oh, there was no incentive to 8 cross-examine with respect to Maxwell, they certainly were 9 doing it at the deposition. 10 And they are aligned, your Honor. The point is to try 11 to take down the witnesses and prove that this did not happen. 12 So in that respect, your Honor, they are aligned. 13 With respect to the case law on this, I cite to the 14 U.S. Carnivalia case, which is an Eastern District of New York 15 case, that talks about this, the interest issue. And it says, 16 at the time testimony was given, did they have an interest of 17 substantially similar intensity to prove or disprove the same 18 side or substantially similar issues before the Court. 19 THE COURT: But the issues are markedly different, 20 aren't they? The issue, what interest did Epstein have in 21 establishing Maxwell's role? 22 MS. McCAWLEY: The interest that Epstein had, just as 23 if Rodriguez were here on the stand, the interest that Epstein 24 had -- and you'll see it in the deposition -- is to disprove 25 the allegations of girls coming into the house, nude photos on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 27 of 46 27 H45AGIU1ps 1 the computer, abuse happening in the home that other people 2 knew about, all those things that were occurring at the West 3 Palm Beach home. He had the same incentive as Maxwell would. 4 If we put Rodriguez on the stand here, she would be 5 cross-examining him on those same exact issues. 6 So, your Honor, their interests -- 7 THE COURT: But counsel points out, he's conceded 8 liability. So what's point? 9 MS. McCAWLEY: I don't believe in the Jane Doe cases 10 he conceded liability in that manner, your Honor. He is 11 cross-examining these witnesses because of course they are 12 determining how much they're going to have to pay, all the 13 issues relating to these witnesses. So he's fought those hard. 14 He deposed and fought every single witness that was brought up 15 in those cases. They went on for several years, as your Honor 16 knows. 17 THE COURT: Who called Rodriguez? 18 MS. McCAWLEY: A number, there was probably, I think 19 it was jointly six or seven lawyers from varying plaintiffs. 20 There was Jane Doe 102, Jane Doe 1, you know, etc., all 21 represented by varying counsel, so they were all present. And 22 Creighton was present for Epstein. 23 And that raises a good point, your Honor, because 24 another -- 25 THE COURT: So the issue, Epstein's issue with respect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 28 of 46 28 H45AGIU1ps 1 to Rodriguez was, were there girls, how many, and who they 2 were. 3 MS. McCAWLEY: Yes, your Honor. Did the, yes, 4 exactly, what was occurring at the house. So they were trying 5 to establish whether or not those things occurred, how many 6 girls were they really abused, all of those issues. And so 7 they called Rodriguez to try to establish that, which, they got 8 his testimony with respect to him. 9 On the lawyers, I do want to point something out, 10 because this talk about interests being aligned, you'll 11 remember Detective Recarey in this case. He gave testimony. 12 He is the detective who investigated this. He testified that 13 he tried to interview Maxwell, and Guy Fronstin stopped him 14 from doing it, wouldn't produce her as a witness. That is 15 Epstein's lawyer. So there is -- while I we haven't seen a 16 JDA, your Honor has directed it to be produced, and there is a 17 fight over that. At that time back in 2006-7, when these 18 depositions are happening, you have the lawyer for Epstein, 19 also representing Maxwell, saying she can't be interviewed by 20 the detective. So, your Honor, there is an interest alignment. 21 THE COURT: That clearly doesn't do it. 22 MS. McCAWLEY: I'm sorry? 23 THE COURT: That clearly doesn't do it. 24 MS. McCAWLEY: Well, your Honor, I believe that when 25 we look at just the purpose of 804 and how this would come in, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 903 Filed 05/05/17 Page 29 of 46 29 H45AGIU1ps 1 it's for a situation like this. Again we have a diseased. So 2 we cannot produce him to be here to give the testimony. 3 THE COURT: I do understand he's dead.