Testimony, 2023-03-16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x¶

5 v. 22 Civ. 10904 (JSR) JPMORGAN CHASE BANK N.A. Defendants¶

6 7 x JANE DOE 1, Individually and on behalf of all others similarly situated,¶

8 9 Plaintiffs v. 22 Civ. 10019 (JSR) JPMORGAN CHASE & CO., Defendants ORAL ARGUMENT¶

10 x¶

11 12 New York, N.Y. March 16, 2023 4:30 p.m.¶

13 Before:¶

14 15 HON. JED S. RAKOFF District Judge¶

16 17 18 19 20 21 22 23 24 (Continued on next page)¶

25¶

GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS Plaintiffs¶

APPEARANCES¶

OFFICE OF THE ATTORNEY GENERAL Attorneys for Plaintiff USVI MIMI LIU MICHAEL J. QUIRK LINDA¶

BOIES SCHILLER & FLEXNER LLP Attorneys for Plaintiff Jane Doe and USVI ANDREW VILLACASTIN¶

POTTINGER LLC Attorneys for Plaintiffs Jane Doe and USVI BRITTANY¶

WILMER CUTLER PICKERING HALE & DORR LLP Attorneys for Defendant JPMorgan Chase Bank NA FELICIA ELLSWORTH JOHN BUTTS¶

ROPES & GRAY LLP Attorneys for Defendants Deutsche Bank Entities 22Cv.10018 DAVID HENNES ANDREW TODRES¶

& CONNOLLY LLP Attorney for Defendant Staley BRENDAN V. JR.¶

VILLAZOR LLP Attorney for Nonparty J.¶

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8 : Linda , your Honor.¶

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25 THE COURT: So thank you all for coming. I think we¶

(In open court; case called)¶

DEPUTY CLERK: Will everyone please be seated and will the parties please identify themselves for the record.¶

MS. LIU: Good afternoon, your Honor. Mimi Liu on behalf of the U.S. Virgin Islands.¶

MR. QUIRK: Good afternoon, your Honor. Michael Quirk on behalf of the U.S. Virgin Islands.¶

MR. : Good afternoon. Brad on behalf of Jane Doe.¶

MR. VILLACASTIN: Good afternoon. Andrew Villacastin on behalf Jane Doe and in both the JPM and Deutsche Bank cases.¶

: Good afternoon. Brittany on behalf of Jane.¶

MS. ELLSWORTH: Good afternoon, your Honor. Felicia Ellsworth, and John Butts on behalf of JPMorgan Chase.¶

MR. HENNES: Good afternoon, your Honor. David Hennes and Andrew Todres from Ropes & Gray on behalf of the Deutsche Bank, and at the Court’s invitation.¶

MR. : Good afternoon, your Honor. for non-party Jordana¶

MR. : Your Honor, Brendan for Jes Staley by invitation of the Court.¶

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need to, with apologies to everyone, take whatever time is necessary even into this evening, if necessary, to get everything that’s outstanding resolved so we could be completely up to date. Plus it’s been, what, at least three or four days since I saw most of you, so I was really feeling lonely and missing you.¶

So, in any event, here we are. Let’s start with the schedule. I just want to make sure that we have everything properly scheduled. So the trial for Doe v. Deutsche Bank is set to begin on August 8. The trial for both Doe v. JPMorgan and Virgin Islands v. JPMorgan is scheduled to begin on September 5.¶

Now, because we are just now hearing this week arguments on the motions to dismiss the amended complaints, then I think we need to move some of the interim dates. I have already indicated in the arguments we heard earlier this week that I will give you a bottom line rule at least by the end of March, and that will be true of the argument we’re going to hear today as well.¶

So, against that background — there’s one other complication, which is the third-party complaint that JPMorgan has filed against Mr. Staley. But putting that third-party complaint aside for one second, does anyone want to suggest new dates for the completion of discovery and the like?¶

I’m not going to move the trial dates, so it’s just a¶

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question of whether we need to, for example, previously all discovery was to be completed by April 24 and class certification reports were due on March 1, and the motions on class certification were to be made and responded to in various dates in March and April. We were going to have an oral argument on May 12, and then there was argument leading up to a final pretrial conference on June 12. I am happy to move any and all of those dates, but not the trial date.¶

So does anyone want to make any suggestions in that regard?¶

: Linda , your Honor. I’m happy to open the bidding on this one.¶

So the U.S. Virgin Islands and the Doe plaintiffs had previously been in touch with JPMorgan which had asked us about extending the schedule. What we had proposed to them was moving the deadline for plaintiffs’ expert reports till the end of April, which I think takes some of the pressure off some of the discovery issues because depositions can then move back. So that would be one suggestion. Obviously, we can’t speak to the class certification issues¶

THE COURT: Okay, anyone disagree with that?¶

MR. BUTTS: Your Honor, John Butts for JPMorgan. We are happy to proceed on any schedule. The schedule that — I know you’re asking this, with Mr. Staley’s third-party complaint aside, our interest is doing everything in one¶

efficient shot, so I’m happy to answer questions in that regard, but that’s just something that would be considered.¶

THE COURT: Who is here for Mr. Staley?¶

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MR. : Brendan your Honor.¶

THE COURT: Welcome back, Mr.¶

MR. : Thank you, sir.¶

THE COURT: So when last you were here, my Court - and I was talking to the jury after the verdict, and one of the jurors said, “Was that really Brendan ?II¶

And when I told him that: Yes, it was the real he practically collapsed from enthusiasm right there on the spot. So welcome back.¶

MR. : Thank you, your Honor. You’re always very nice in the compliments, but you always deny my motions.¶

THE COURT: Seems like the fair thing to do.¶

Anyway, what is the — when is your answer due in the Staley matter?¶

MR. : 60 days, your Honor.¶

THE COURT: 60 days from?¶

MR. : From March 8 or 9.¶

Just so the Court knows, I think on Wednesday, March 8, I was informed Mr. Staley would be sued by JPMorgan. They asked if I would accept service. I did accept service on March 9. On Friday, March 10, I did receive the Court’s invitation to appear today for purposes of scheduling.¶

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THE COURT: I’m sorry, I should have made it the evening of March 9, but I’m a little belated.¶

MR. : The only important day to avoid any important conflict is tomorrow. As you know, it’s St. Day. It’s a holy day.¶

THE COURT: Everyone knows that, but I am not sure that you should bring religion into the courts.¶

MR. : That is true.¶

Your Honor, just to fill out the situation, so I’m here today to announce that I know nothing about this case. Nothing. I don’t know about the discovery. I haven’t read the pleadings. I haven’t seen any discovery or subpoenas. I don’t know the name of the plaintiff. And I think I’m probably entitled to a Guinness Book of World Records in having appeared the quickest between the date of suit and today, which is eight days, so —¶

THE COURT: Well, I appreciate that.¶

Now, last I heard your law firm, whose excellence is well-known throughout the United States, held itself out as being able to act promptly and efficiently on virtually any matter brought to it.¶

MR. : That is absolutely true.¶

THE COURT: So you don’t really need 60 days, right?¶

MR. : No, I really don’t, but I’m not going to waive the 60 days.¶

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Let me be serious for a moment, your Honor. There is only one thing you’re concerned about is getting cases properly tried and all parties having an opportunity to be fairly prepared and heard in your court. There is no question about that.¶

I come late to this, and there has to be a major adjustment. I am — frankly, if this was a brand new case and we were all arriving, I would say based on my experience, the minimum trial date should be March of ‘24, just 12 months, 12 months. Maybe that can be cut back. My point is, your Honor, there is apparently an enormous amount to do. Some lawyers have been in these cases for more than a decade. This is new to us, and we need the proper time to prepare.¶

So according to Rule 4, we do have 60 days, and I don’t anticipate filing until that time. And I would ask the Court’s consideration given our arrival in the case to consider moving the trial date closer to March of 2024 than the day after Labor Day 2023.¶

THE COURT: Well, see, against that is the Court’s perception, which I have repeated perhaps too often for 27 years, which is that if there is one major problem with the American civil justice system, it’s delay: Endless delay, expensive delay, delay that is not only bad for the parties but is bad for the cause of justice. And while this case has its factual minutiae, legal issues are not nearly as complex as in¶

many cases that come before the courts of the Southern District of New York. So there is no way I am going to push this case, the trial of this case off or these cases off to March of 2024. And I’m reinforcing that belief by the expertise and the resources that all the firms involved in these cases have.¶

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But I would, in light of your late entry, consider, and in addition to, of course, giving you at least one day of delay for St. Day, consider a later date.¶

MR. : May I mention one more thing that could be a factor for the Court?¶

MR. : I have a trial ten weeks from now in criminal court presided over by Judge Denny Chin, and he has set aside the entire month of June for that trial. And I know it may not be —¶

THE COURT: An entire month?¶

MR. : Yes, your Honor. You should talk to him about speeding it up perhaps.¶

THE COURT: I intend to do that.¶

MR. : The trial starts jury selection May 30, and the judge had identified every day of trial, there are some half days, and the last day he has on his calendar is June 28.¶

THE COURT: What about evenings and weekends.¶

MR. : That’s fully occupied, as you know, your Honor.¶

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THE COURT: So let me ask one other question, something that I really reserved on earlier when these cases were first presented.¶

But let me ask counsel in the Deutsche Bank case, what about consolidating that trial with the trial of the other cases? What would be in it for you, so to speak, is your trial is now due to start August 8, and nothing involving Mr. Staley and his counsel implicates anything about that date; but if it were one trial of all these cases, which I think also makes a lot of sense, then I would be willing to move your trial to a consolidated trial date of — and I was beginning to explore that with Mr. , but that would probably be October, November, something like that.¶

So what about that?¶

MR. HENNES: Your Honor, David Hennes from Ropes & Gray on behalf of Deutsche Bank. It’s an issue we haven’t considered in the last several months. I don’t think we thought it made sense at the time to do that, given the differing time periods in which —¶

THE COURT: I understand why, and that’s why initially I set two different trials, and I understand those arguments. But, on the other hand, you might prefer to balance that against the advantage of having a later trial.¶

MR. HENNES: That’s right, your Honor, and I would like the opportunity to talk to client about that. It’s an¶

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important issue.¶

THE COURT: Well, that’s fine. So we’ll leave your trial date where it is for now. We’ll set a date with all other parties for an extended trial date, and can you let me know by Tuesday whether you prefer the extended trial date?¶

MR. HENNES: I will, your Honor. Can I raise one other issue as we are thinking about this?¶

There are many overlapping issues in this case, both those of fact of discovery and legal arguments, as you’ve heard from the arguments on Monday, and there are some overlapping issues. So we do believe it makes sense to keep the schedules linked. I will get back to you on the trial date, but in terms of any dates that move, it makes sense to keep the cases on the same track.¶

THE COURT: I agree with that, but I wasn’t planning to move discovery — excuse me — I wasn’t proposing to move discovery beyond the trial date we had originally set. Now I see that, that is maybe a little bit — if we modify that at all, I think we’re only going to modify it as to discovery involving Mr. Staley.¶

MR. HENNES: I think there will likely be some adjustments proposed. I don’t want to speak for counsel for JPMorgan, but I think there will be some interim proposals of moving some of the dates slightly. We think it makes sense for all the cases or for both cases for that to happen.¶

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THE COURT: Okay. I think I — I’ll tell you what. I didn’t see this coming. It need to go grab my calendar. We are going to take a two-minute break, not a three-minute break. (Pause)¶

THE COURT: By the way, I meant to ask counsel for JPMorgan, why didn’t you serve Mr. Staley personally?¶

MR. BUTTS: We asked Mr. to accept service. He accepted service¶

THE COURT: Well, so he could take advantage of the 60 days as opposed to the 30 days, but presumably you could still serve Mr. Staley on Monday, in which case he would only have 30 days from that.¶

MR. BUTTS: If that moves things forward, we will do that.¶

THE COURT: So that’s a thought.¶

MR. : I wish you were in my law firm. That is a good thought. But the purpose of acting as counsel did is to avoid the hassle of chasing people down and the cost of it. That’s the purpose of Rule 4. I think he acted perfectly properly, and I responded very quickly to avoid that. And I think — we can’t rewrite history now. We’ve been served, and I would suggest —¶

THE COURT: Well, he’s offered to serve your client on Monday if I find it helpful to the Court in moving things along, but I will for the moment — I want to see how this¶

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plays out in terms of timing, but I will for the moment stick to the 60 days.¶

MR. : Thank you, sir.¶

MR. : Your Honor, may I be heard?¶

MR. on behalf of Jane Does.¶

Maintaining the trial date is extraordinarily important to our clients, and so we would move — if it is the third-party complaint that is going to disrupt that, we would move at this time to sever the third-party complaint and just proceed on the way that — on the track that we’re all scheduled to be on.¶

: Your Honor, if I may add to that for the U.S. Virgin Islands. Obviously, the Court has discretion under Rule 14(a)(4) to sever and stay a third-party complaint in this case.¶

THE COURT: Last I heard, I have that discretion even without the rule.¶

: Understood. In the same vein of service and all things, understood. In this case, we do believe it’s in the interest of judicial economy, particularly because most of the claims against Mr. Staley are contingent claims, and this is an instance with proceeding with the case-in-chief allowing the plaintiffs to proceed to trial.¶

And then, you know, if a secondary trial is needed on¶

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the claims between Chase and Staley, that can be done after the case has proceeded with the benefit of the record, so that Mr. Staley doesn’t need to do any duplicative discovery.¶

THE COURT: All right. So before I hear from JPMorgan on that, you don’t have any objection to that, do you?¶

MR. : No objection.¶

THE COURT: So let’s hear from JPMorgan.¶

MR. BUTTS: We do have an objection, your Honor, and we’d be happy to brief this. This is the first we’re hearing of it from the plaintiffs. Certainly, it’s an area of discretion, but the joinder of claims is strongly encouraged and, concomitantly, quoting from your opinion in Compania Embotelladora. Forgive my mispronunciation.¶

should be granted only in exceptional circumstances. There’s five factors that go to that exceptional circumstances test looking at essentially the risk of prejudice and confusion of the issues.¶

1. Do the claims arise out of the same transaction and occurrence? They absolutely do. All roads go through Mr. Staley. He will be at the center of this case no matter whether there’s one or two.

2. JPMC’s claims against him are derivative of the claims that the plaintiffs have asserted against JPMorgan. In fact, our complaint uses allegations directly from the complaint in both cases.

3. Judicial economy. This is literally a question of one trial or two with all of the same witnesses.

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4. Is necessary to avoid prejudice to any party? It is not. Currently, we are on a schedule that has us in for trial within ten months of the Doe plaintiffs’ filings, which is wonderful but a rare thing in —

THE COURT: You know, I think you’ve made good points up till then. On that one, you’re treading on thin ice because in this Court’s view, the overwhelming majority of cases brought in the Southern District of New York, which are typically brought as here by highly competent counsel, can be tried within six months of when the complaint is brought. So I think you’ve already had the benefit of more time than I frankly would have normally allowed.¶

MR. BUTTS: Fair enough. I won’t fight you on that, your Honor.¶

Just pointing out the simple difference in the calendar versus the trial date when it was scheduled, and the filing of this case.¶

But I would like to come back to that point in a slightly different way.¶

But factor five: Separate claims. Would they require different witnesses and documentary proof? And here they would be the same.¶

The thing I would like to say is that while Mr. Staley¶

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is a new party to the case, he is not new to this subject matter. He has produced documents. He was scheduled for a two-day deposition that is scheduled to begin on Thursday. He produced documents to the United States Virgin Islands in their indict case, which is the case against the Epstein estate that has now settled. There has been a multi-year case in the United Kingdom from the Financial Conduct Authority focused on Mr. Staley and Mr. Epstein.¶

THE COURT: Who is representing Mr. Staley at the deposition on Thursday?¶

MR. BUTTS: I understand it Mr. was.¶

THE COURT: So surely someone in your firm has been preparing if the deposition is next Thursday.¶

MR. : Your Honor, there could be no further difference between a witness’s deposition than a party’s.¶

THE COURT: Of course. I understand that. That doesn’t mean that you wouldn’t prepared for a deposition.¶

MR. : Certainly.¶

THE COURT: And that would require knowing a lot about what the case is about.¶

MR. : Your Honor, I asked JPMorgan for documents. I don’t remember the exact date. At least a month ago. I forget when our first meeting was. We received no documents. In that capacity, he’s a witness. He’s a — I need not underscore the difference between a witness and a party.¶

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We are now a party.¶

THE COURT: So now I come back to the question of judicial economy, and that leads me once again to the other case because the — it clearly would be in the interest of judicial economy to have one overall case that, yes, there are important differences, but there are also important similarities. And the legal issues on the whole are very similar. So I wonder if you’d had any further thoughts on that.¶

MR. HENNES: In the last three minutes, your Honor, I have not, other than —¶

THE COURT: What a disappointment.¶

MR. HENNES: I knew I was going to disappoint you at least once today. The only suggestion I might make — and obviously, it doesn’t solve the efficiencies of consolidation, which I will consider and be back to the Court in the timeline which the Court requested after talking to the client — is you can keep the cases linked, meaning the trial can move to the same time if ours is right before the JPMorgan trial as it stands. They can both move, let’s call it, in tandem, so ours continues to go forth —¶

THE COURT: I don’t think that’s the same economy, but thank you for mentioning that.¶

MR. HENNES: But I will be back with the client — or we will consider the issue and be back before your Honor.¶

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THE COURT: All right. Let me ask if any counsel wants to — maybe I should ask plaintiff’s counsel first. How long a trial — assuming one overall trial of everyone, how long a trial are we talking?¶

MR. : I think we’ve estimated between ten and 14 days.¶

THE COURT: I’m sorry?¶

MR. : We’ve estimated between ten and 14 days.¶

THE COURT: I think — this is not a ruling because I want to hear more about plaintiffs’ arguments for sticking to the current trial dates, but if we were to have one overall trial, I could do it beginning October 23. I have one trial already scheduled for that date, but I can move that other case, and I am basically free for at least three weeks, which I think would be more than enough even if it was one trial.¶

I don’t think because of intervening stuff I have that I could meaningfully move the trial involving Deutsche Bank except into the slot that would be vacated by the trial slotted for JPMorgan Chase.¶

So the alternatives are: Either we leave the trials where they are, and we sever the case against Staley.¶

Second, we have one overall trial of everything starting October 23.¶

Third, that we have one October 23, everything involving JPMorgan Chase, including the Staley part of it, and¶

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that we move the Deutsche Bank case to September 5.¶

So I think those are the only three realistic options.¶

So I heard — and I think it’s not without some force plaintiff’s counsel’s feeling desire to move this case forward rapidly. It’s a case of public importance. It’s a case that counsel have worked hard to meet the schedule of the Court. On the other hand, I am not really clear why a modest delay, essentially in the case of the JPMorgan case, a month and a half, is really so prejudicial.¶

But let me hear anything further that plaintiff’s counsel wanted to say on that.¶

MR. VILLACASTIN: Good afternoon, your Honor. Andrew Villacastin from Boies Schiller Flexner.¶

Jane Doe’s preference is to keep the trial dates. I think your inclination in the beginning of the hearing where you noted that there was some play in the joints, you had the ability — we have a separate trial on June 20 and a two-month delay before the beginning of trial. We have ten unripe applications. We don’t know how Mr. Staley’s entering into the case necessarily will affect the schedule, and I think we should hear what he intends to do before we necessarily move it.¶

You know, there was a mention of as well. I think, you know, we can consider what the parties’ intentions are. The parties have not yet conferred on this, as I think¶

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Mr. Butts mentioned.¶

So just to state Jane Doe’s preference —¶

THE COURT: Although counsel for JPMorgan, quite rightly, cited the factors that the Court needs to take account of, and most of those factors weigh against , JPMorgan really has created this situation. JPMorgan surely knew from its years of investigation what its views were with respect to Mr. Staley. JPMorgan certainly could have served him personally. I mean, I find that extraordinary that given the deadline in this case, that that wasn’t done. So in many ways JPMorgan has created the problem with respect to Mr. Staley from a timestamp point, and so maybe we should sever it as simple justice or payback or however you like to — that’s Rule 97.3.¶

Household rule. My house, your Honor.¶

if I may —¶

MR. VILLACASTIN: Just to move quickly, sir.¶

THE COURT: Maybe I should interrupt you guys for a minute to hear from JPMorgan. Yes?¶

MR. BUTTS: Your Honor, I will not take with you on the issue with you on the piece with regard to service, right? We did it as a professional accommodation to Mr. We’re happy to have him served personally tomorrow.¶

But this is not, respectfully, a problem of JPMorgan’s making. This is an issue of part of this case has gone on and¶

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part of what we have known about. And we had argument in front of you. We moved the impleader date because we were trying to get information from Ms. Doe about one of her allegations in the complaint as to who is the powerful financial executive who participated in her assault.¶

We asked that for awhile. Threatened to move to compel multiple times. And only — it was in interrogatories — it should have been answered in interrogatories. And only 48 hours before we were coming upon the — 48 hours before we called asking for an extension of that date when we were upon the original impleader date did counsel finally share that it was that, she is alleging, Mr. Staley.¶

What we asked for — when we asked the Court for permission to extend that was, this wasn’t a question for counsel, but for Ms. Doe, and our ability to hear from her in a deposition where in an open courtroom the plaintiffs have been sensitive about what is said in that deposition. I’m happy to share it with you at sidebar, or if you’ll permit me, but what happened at that deposition fundamentally changed things, and that’s why we are here today.¶

MR. VILLACASTIN: If I could respond, your Honor? I am the attorney who told them who that powerful financial executive was. To be clear, the Court’s schedule had a date for joinder of additional parties by December 16, 2022. It was¶

over our objection, I guess — we may have consented for them to enter an application, but we saw no reason for JPMorgan to have additional time for that deadline.¶

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To be clear, even assuming — and this is an assertion that JPMorgan itself did not know who that powerful financial executive was, there were interim dates before that. The conversation that Mr. Butts is referencing happened on February 14, which is more than a month ago, right? More than a month ago, and then he requested that verification in writing the day after. I gave it to him in writing the day after. And the verified interrogatory response was on February 23.¶

So you know that the third-party complaint is upon information and belief. That’s what they put into their complaint. And they had that information and belief way before now. And we see no reason on that basis to overturn the schedule.¶

And to be clear, U.S. Virgin Islands, Jane Does, and JPMorgan we meet and confer weekly. We talk about schedules weekly. We’ve heard about extensions to schedules and, you know, extensions to schedules have been discussed, and, you know, for example, Jane Doe would consent to a reasonable request for an extension, such as U.S. Virgin Islands mentioned earlier on expert discovery, but it — you know, we do not consent necessarily to the timing of a third-party complaint leading to the overthrowing a schedule, which is important to¶

Our clients, to be clear, and we dispute the other factors for You know, allegations specific to Mr. Staley are not shared by our — the entirety of our class, for example, and we see no reason to prejudice their ability to get to trial on their claims.¶

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THE COURT: I’m sorry, other counsel wanted to be heard?¶

: Yes, your Honor. A few issues here. Echoing your Honor’s point that this is a problem of JPMorgan Chase’s own making. Their third-party complaint largely recites the fact of the Doe complaint and the U.S. Virgin Islands complaint, and, importantly, the United States Virgin Islands complaint relies almost entirely on JPMorgan Chase’s own documents: Mr. Staley’s emails to Jeffrey Epstein, all of which occurred on JPMorgan’s server, his meetings with Jeffrey Epstein which were on the calendar, including numerous meetings at Mr. Epstein’s home, and the case against JPMorgan Chase is not solely or limited to the case against Jes Staley.¶

The parties took a deposition yesterday that was very instructive, but as the complaints in this case make clear, the information about Jeffrey Epstein’s human trafficking was known widely at JPMorgan Chase. It was known from his financial records. It was known from media articles that were circulated widely among the bank. This case is not just Jes Staley. And I say that with no intent of excusing or minimizing his conduct¶

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here, which is, of course, important to the case, but it was not just Jes Staley. There will be numerous other witnesses and documents that go far beyond his office, throughout the executive suite and elsewhere at JPMorgan.¶

As your Honor noted, this is a case of enormous importance as an enforcement matter and to victims, and it should proceed. I understand that you are talking about six weeks, but it is time that matters to us in securing justice here. Discovery has been proceeding. There has probably been four or five, maybe six weeks of document exchanges. The case is not so far along that Mr. and his firm could not jump in quickly even if the cases weren’t severed. But this is a case — and Mr. Butts cited your decision and the Rule 14 factors, and three and four, I’m not going to argue about whether these are common facts, common occurrences questions of law. They are certainly overlapping. But they are also distinct.¶

And if you look at other case law in the circuit, one of the things that courts look at is whether or stay facilitates judicial economy by possibly eliminating the need for a trial of separated claim or issue. That’s the case of Crown Cork & Seal.¶

Whether there are additional discovery burden. And obviously the burden to victims here, for instance, in sitting for another deposition with Mr. Staley, one of the key¶

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depositions, has already happened. It adds an additional discovery burden to the case.¶

And, finally, as to your own decision which I wouldn’t presume to recite to you, but that was a different circumstance. The Campania Embotelladora — which I’ve butchered as badly as Mr. Butts — that was a case that involved not a third-party claim but a counterclaim, and the factors in severing a counterclaim are very different than a third-party complaint when the U.S. Virgin Islands and the Doe plaintiffs purposely chose to sue the company here because that’s where the conduct, I guess it’s a flip term, but that’s where the buck stops in this case with JPMorgan Chase.¶

THE COURT: So all of you made, as I would have expected, excellent arguments, but I think we need to move this along. So I am going to move the trial involving JPMorgan and Mr. Staley jointly, and without , to October 23. And as far as I’m concerned, it would take something — it would take an act of God for me to move that any further. So that is a firm and fixed date. And I think it’s still important to move these matters as expeditiously as possible. So if Deutsche Bank doesn’t want to join in that combined trial on October 23, the trial against Deutsche Bank will remain for August 8.¶

In terms of how this affects case management, maybe I can prevail on counsel for Deutsche Bank to get me a decision¶

4 5 6 MR. HENNES: Yes, your Honor. Monday is fine. I would ask if you wouldn’t mind moving us into the September 5 slot, regardless of what happens. We have a lot to do. There are discovery disputes that are ongoing, and there’s a tremendous amount —¶

7 8 THE COURT: Let me think about that for a moment. Here is the point I want to get to.¶

9 10 11 12 So we will know by close of business Monday whether Deutsche Bank wants to join in the overall case or not. If it doesn’t — yes, I agree with you. I see no harm in moving it to September, to what is it, September 5?¶

13 MR. HENNES: Yes, your Honor.¶

14 15 THE COURT: Of course that will also destroy your Labor Day weekend, so that’s an added benefit.¶

16 MR. HENNES: Thank you, your Honor.¶

17 18 19 20 21 22 THE COURT: So counsel will then, depending on the answer, confer jointly, including counsel for Mr. Staley, on Tuesday, and get me by no later than noon on Wednesday a proposed new case management plan filling in all the necessary dates that will allow those two trials to go forward on either the two dates or one date that is elected.¶

23 24 25 And if for some reason, which I’m quite sure you can all work that out, but if for some reason you can’t, just indicate that in your submission, and I’ll resolve that later¶

instead of Tuesday, on Monday. Is that doable?¶

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in the afternoon on Wednesday. So we’ll have this all set by Wednesday afternoon.¶

Okay. I think the next item is the argument on the motion to dismiss the Virgin Islands’ claim. If some of you who are not involved in that feel the need for a break, feel free to take it. I don’t expect that — because many of the issues are similar to ones we’ve already covered, but some are unique, but I’m hopeful we can resolve that — or not resolve it, but hear that full argument in the next half hour. So be back in a half hour, or you can stay and watch, but let’s proceed with that argument. So let’s hear first from moving counsel.¶

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MS. ELLSWORTH: Thank you, your Honor.¶

So there are several important differences in the motion to dismiss the U.S. Virgin Islands complaint from the motion your Honor heard on Monday. There are threshold reasons why the U.S. Virgin Islands complaint cannot proceed under both TVPA, the federal statute, as well as under the two territorial law statutes they attempted to bring.¶

First, under the TVPA, the U.S. Virgin Islands cannot invoke Section 1595(d) because it is not retroactively applicable. That section was added to the statute in 2018, and the conduct that the U.S. Virgin Islands accuses of violating the statute all predate 2018. The statute doesn’t apply retroactively so they cannot proceed under 1595(d) at all.¶

Even if they could proceed under that statutory provision, the U.S. Virgin Islands has failed to plead parens patriae standing as is required under both the plain text of 1595(d) as well as under the law of parens patriae standing. U.S. Virgin Islands has to indicate that it is proceeding on behalf of an interest of the population; it cannot be trying to vindicate individual rights. It didn’t plead this at all in its complaint other than to say parens patriae. It didn’t include any facts to suggest the interest of the citizens that it is seeking to vindicate, and under the various cases that we have cited to you in our papers, they do not have a basis for asserting a parens patriae claim here, so under those two¶

4 5 6 7 Are you saying that the person who is trafficked to a location within, in this case, the Virgin Islands, isn’t a resident of that location under 1595(d), I guess it is, or are you saying that even assuming that person is a resident, you still think they don’t have standing?¶

8 9 10 11 12 13 14 15 16 MS. ELLSWORTH: I think it might be both, your Honor. So the Section 1595(d) allows the attorney general to vindicate an interest of the residents of that state; they believe it has been or is threatened to be adversely affected by a violation of 1591. So the Virgin Islands cannot bring a complaint, nor do they suggest that they are trying to bring a complaint, on behalf of the victims of Epstein. Instead, the complaint is purported to be brought on behalf the residents of the Virgin Islands, of the territory.¶

17 18 19 20 21 22 23 THE COURT: Yes. But so the interesting word there is “residents,” not citizens or something like that. And supposing, in a hypothetical, someone forced a thousand people into the Virgin Islands to take advantage of forced labor or something like that. Are you saying that people, even though forced there and even though residing in some physical sense there, would not be residents?¶

24 25 MS. ELLSWORTH: No, that’s not what I’m saying, and I don’t think that’s what the Virgin Islands is trying to plead¶

threshold issues -¶

THE COURT: So I’m not totally sure I’m following.¶

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here. They’re not trying to plead a claim on behalf of victims of Epstein. That would be an improper invocation of 1595(d) and of the parens patriae doctrine. Instead, they are trying to plead a complaint on behalf of the residents writ large of the Virgin Islands for some amorphous and, I would say, insufficiently pleaded harm that the residents have suffered from the actions of Epstein. So that’s the parens patriae claim as pled by the complaint.¶

Now they have not actually alleged a sufficient quasi-sovereign interest to allow them to proceed under that doctrine, even, again, putting aside the gateway issue if the Court could even find that 1595(d) were to apply here, which it does not, because that would be an improper retroactive application of that statute.¶

THE COURT: So there’s that case, I think it’s called Snapp —¶

MS. ELLSWORTH: That’s the one.¶

THE COURT: — where Puerto Rico had parens patriae standing to assure its residents that it would protect them from the harmful effects of discrimination. Here, the Virgin Islands, as I understand it, asserts that it wants to assure its residents that it will act to protect them from the harmful effects of criminal sex trafficking enterprises flourishing in the islands. So how do you distinguish those two situations?¶

MS. ELLSWORTH: There’s no allegation in the complaint¶

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in this case of any criminal sex trafficking that is ongoing or threatened to happen in the future. We all know that Epstein is deceased. There’s no allegation that there is some imminent harm of some other sex trafficking enterprise resident on the island. So I think it’s a very different situation than the Snapp case in Puerto Rico, where there was potential ongoing discrimination against the residents of Puerto Rico in their employment opportunities elsewhere. I would say that, again, what has been alleged here is in paragraph 93 of the complaint, which is simply a bald allegation, of pleading parens patriae is insufficient to actually plead the quasi-sovereign interest. But even if we put that to the side, they haven’t actually articulated what that interest is or why this is the appropriate vehicle to try and vindicate it. And again, there’s nothing, no facts pled that suggest there’s some ongoing harm from a sex trafficking operation that they are trying to vindicate. All they really, at bottom, are trying to do is invoke, potentially invoke the right to victims, and of course that’s an improper exercise of the parens patriae doctrine — that’s the Missouri case that we cited to your Honor in the papers — to try and invoke the rights of victims.¶

But I would like to return to the retroactivity point because I’m not sure the Court even needs to reach the parens patriae —¶

THE COURT: Well, I think the retroactivity point is a¶

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very important point. I do want to hear from your adversary particularly about that point, but just to go to the point you were just making — I’m looking at 1595(d) — “in any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected,” they can bring a civil action. So doesn’t on its face the statute say it doesn’t have to be that you have future harm that you’re trying to prevent but it also, for obvious deterrent and other reasons, includes an action for past harm?¶

MS. ELLSWORTH: Those are the words of the statute, but again, the Virgin Islands hasn’t articulated what that harm to the residents of the state was, what the quasi-sovereign interest that it’s seeking to invoke here. It has articulated nothing about —¶

THE COURT: You seem to be arguing that they can’t bring an action if they can’t articulate a current danger, and I don’t see that the statute has that limitation.¶

MS. ELLSWORTH: I think they need to argue either a past harm or a current danger.¶

THE COURT: Yes. And why aren’t they satisfying past harm?¶

MS. ELLSWORTH: They haven’t argued either. I mean, they haven’t pled in their complaint what that past harm is.¶

THE COURT: II, I see. All right. But you agree if¶

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it’s a past harm, it would still support an action.¶

MS. ELLSWORTH: A past harm could support an action, but the only — again, not in the complaint, but in their motion papers, the only interest that the Virgin Islands has articulated that they are attempting to vindicate here is to protect their citizens from the harms of sex trafficking, and they haven’t identified any factual basis for that.¶

THE COURT: And I want to move on. But if the citizens, the residents, have — because it’s not the citizens, it’s the residents — have suffered from sex trafficking in the past, and let’s assume for the sake of argument that the particular perpetrator of that sex trafficking is no longer around to do it, I don’t read the statute as I think you’re trying to suggest, that that precludes their bringing an action because the harm is over, so to speak, as involving this particular perpetrator, because this statute very clearly, as a classic hybrid statute — civil/criminal — has both the general deterrent aspects as well as more immediate compensatory aspects, so they’re entitled to get back monies that should have been paid because of the sex trafficking in the past and — for example, I think these cases often involve punitive damages — to deter others from using the Virgin Islands as a headquarters for sex trafficking. So I understand you’re saying that they haven’t articulated that. That’s a different question and an important one. But I’m not sure it¶

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has to be prospectively in —¶

MS. ELLSWORTH: I don’t mean to argue that it has to be prospective. What I’m saying is that they have not articulated what the past harm is that is a quasi-sovereign interest. It isn’t harm to victims, so that’s not — those are not the residents on whose behalf the Virgin Islands purports to be moving. And the future harm that they’ve articulated is not a future harm that has any factual basis in the complaint or otherwise. That’s the point I’m trying to make.¶

THE COURT: All right. So let’s move on. And I think you already articulated some of this may become moot if the statute is not retroactive. I have a lot of questions for your adversary on that, but quickly, anything you wanted to say, and then I’ll put the questions to them.¶

MS. ELLSWORTH: So I don’t think that the Virgin Islands contests that the statute doesn’t have any explicit reference to retroactivity. The harm and the conduct that is pled as violating the statute ends in 2013, which is when JPMorgan Chase exited ended its relationship with Epstein as a client. I’ll point to the cases cited in our brief but particularly the Kellogg & Root case from the Fifth Circuit that found an extraterritorial application of the TVPA to be an expansion of liability and therefore could not apply retroactively; and the Ditullio case from the Ninth Circuit which found the addition of the civil action to be an expansion¶

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of the statute that couldn’t apply retroactively. The addition of 1595(d), which allows an attorney general to bring a case, is also an expansion of the statute. It is a different set of harms, a different set of claims that they have to bring. I just articulated why I think they haven’t done so. But it is not the same harm that a victim under the statute, under 1595(a), could bring. It is different, it is more, and by expanding liability, it can’t apply retroactively, and so simply can’t apply here at all.¶

Let me move on to the territorial law claims, if I could.¶

THE COURT: Yes. Go ahead.¶

MS. ELLSWORTH: So those also fail at the outset, for several reasons.¶

The first is, for both the CICO and the consumer protection statute, Virgin Islands has not articulated a justification for why those apply extraterritorially. The Virgin Islands Code 1, Section 2 has a presumption that the law applies only within the territory. Of course they’re trying to bring this case in the Southern District of New York against a bank that is based in Delaware and has a principal place of business here in New York. They have not alleged conduct by JPMorgan Chase in the Virgin Islands. And in fact, in paragraph 11 of their complaint, they allege that the conduct of JPMorgan Chase was in New York. So the laws just can’t¶

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apply extraterritorially at all.¶

Even if they could apply, moving first to the CICO claim, which is their version of RICO — I know the Court was just hearing an argument about RICO in the prior case — they have to show participation, they have to show venture, and they have to show an underlying predicate act. The CICO law follows federal RICO law, so I won’t recite it. I know the Court is very familiar with it. But let me tell you why they can’t satisfy it.¶

First, there’s no enterprise, so even if there is an Epstein enterprise of some sort, under the law of RICO or CICO, they need to show that JPMorgan shared a common purpose with that Epstein enterprise in order to establish an enterprise under the statute. There’s no pleading of that, nor could they possibly plead something fact sufficient to meet that element of the claim. Also can’t show the participation.¶

But let me move to the predicate acts because that may be another easier way to dispose of this claim. Under CICO, it requires the underlying predicate criminal act to have taken place within five years of the filing of the claim. Again, the underlying criminal acts that are alleged here all occurred earlier than 2013. Now the Virgin Islands does make some arguments in their papers about some ongoing violation or ongoing conduct that would somehow make the claim more timely. Those allegations are not sufficient to get them over this¶

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five-year bar because the allegations are a failure to follow the requirements of the bank’s secrecy act and the failure to file a SAR earlier than JPMorgan did.¶

THE COURT: Yes. As I read it — I want to hear from plaintiff’s counsel — it was mostly a failure to file suspicious activity reports.¶

MS. ELLSWORTH: And again, that failure — to the extent that there was one, which we don’t agree with — would have taken place prior to 2013. The activity that supposedly JPMorgan should have acted on all predates 2013.¶

I also would just note that even if that was a cognizable claim, even if there weren’t the other threshold problems I’ve identified with it, the chain of causation simply doesn’t exist. Even a SAR with the Treasury would not go to the U.S. Virgin Islands, so there’s no connection to why the alleged failure to make those regulatory filings would somehow have changed anything in the Virgin Islands conduct.¶

Finally, on the consumer protection, that also has a six-year statute of limitations, that is outside — this claim is outside the unfair competition law. That claim is barred by the statute of limitations. That also — it’s very thinly pled, I will say. As best I understand the allegations, it’s a suggestion that somehow other banks would have had different business had JPMorgan not engaged in the conduct alleged in the complaint. There’s not sufficient factual information to¶

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support that, nor have they articulated why that would harm consumers in the Virgin Islands. And so if the Court has no questions on that, I’m happy to move on.¶

THE COURT: Yes, that’s fine. Let me hear from the Virgin Islands. Thank you.¶

MS. ELLSWORTH: Thank you.¶

it please the Court. I’ll begin with the TVPA retroactivity argument.¶

The critical question there, your Honor, is does the amendment increase JPMorgan’s liability for past conduct, and the answer is no. The Hughes Aircraft case makes clear that you can’t just say there are differences. The differences must increase JPMorgan’s liability or past conduct. That case involved an amendment to add qui tam plaintiffs. The court said that effectively created a new cause of action because the qui tam plaintiffs had greater incentives to bring a cause of action than did the government. Here, the legislative history is abundantly clear, contrary to my adversary’s arguments, that Congress intended this to be a right of action, not a cause of action. Specifically, the language in the legislative history states, the amendment “creates a right of action for state attorneys general to file federal causes of action for sex trafficking.” Obviously Congress intended to distinguish between a right of action and a cause of action. As the Court well knows, a right of action is procedural, and the Landgraf¶

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case, at page 275, makes abundantly clear that applying a new procedural rule is not impermissibly retroactive.¶

My adversary also argues that if we have to show post-2018 amendment conduct, we have not done so. That is not true. They argue that there was no financial benefit post-2018. The first amended complaint at paragraph 86, among other places, makes clear that JPMorgan continued to benefit until after Epstein’s arrest and death in 2019, so there is a full year of conduct alleged in the complaint post amendment.¶

With respect to the¶

THE COURT: Well, are you saying that the fact that they continued to benefit in a financial sense by itself extends the statute of limitations?¶

MS. LIU: Certainly not, your Honor. I was just addressing a point in their reply, which is that of the elements of the TVPA that we need to prove, they assert we didn’t prove the “knowingly benefit” prong for —¶

THE COURT: All right. Just hypothetically, because I haven’t made any decision or anything in this matter yet, but assuming that the statute is not retroactive in the sense that they’re talking about, so you have to show something in 2018, what, other than the failure to file suspicious activity reports, do you allege?¶

MS. LIU: Yes, your Honor. The ongoing violation of federal banking laws which allowed them to continue to conceal¶

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the misconduct constitutes a violation post-2018 through and after Jeffrey Epstein’s arrest and death in mid-2019.¶

THE COURT: So they say that if anyone was a direct victim of that failure to file, it was not the Virgin Islands but it was the banking authorities in Washington. What about that?¶

MS. LIU: Well, certainly those consequences reverberated to including the Virgin Islands. This is a parens patriae case and I think this segues nicely into the parens patriae argument, which allows the U.S. Virgin Islands to bring this case on behalf of the interests of its residents. And to answer your question earlier, your Honor, certainly the direct interest of the victims, as residents of the Virgin Islands, are implicated here as well as the indirect interests of the other residents of the Virgin Islands. And I would note that of course the victims, who were trafficked to, held captive in, and sexually assaulted in the Virgin Islands, they were residents for purposes of the parens patriae authority, and that is because the nature of human trafficking is such that the victims do not have any legal residence. We’re talking about conduct that is necessarily cross-border. The TVPA only contemplates conduct that occurs in or affecting interstate commerce or foreign commerce. Yet the federal law explicitly authorizes parens patriae action on behalf of the direct interests of the residents and the indirect interests of the¶

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residents in this context. I would add that the Spitzer v. Cain case that my adversary cited in their motion, that was a case involving women seeking abortion services in New York City. We know that women seeking abortion services — and the court does not consider this — often have to cross state lines. The court didn’t say, II, my goodness, those women are not New York legal residents and thus we’re not going to consider them for purposes of a parens patriae case. That’s just not what —¶

THE COURT: Yes. I mean, I think the point is telling here. What is telling here is that Congress used the term “residents.” They didn’t say “lawful residents”; they didn’t say “citizens”; they didn’t use any of the other terms that they’ve used in other statutes. And the sort of common sense would be “resident” is someone who is residing in that particular location, whether by choice or by force, or trafficking.¶

MS. LIU: Absolutely, your Honor.¶

And my adversary also mentioned that we did not allege any quasi-sovereign interests on behalf of the Virgin Islands and its residents. I would just point the Court to our opposition brief at pages 9 and 10, where we cite multiple passages from the first amended complaint, where we allege the interest in protecting public safety, in protecting young women from the criminal human trafficking, ensuring that criminal¶

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human trafficking does not flourish in the Virgin Islands. There were three, four, five allegations in the complaint about the Virgin Islands’s quasi-sovereign interests here in protecting the health and well-being of its residents, as recognized in the Snapp case.¶

I want to address a few issues that were brought up on Monday, your Honor, that Wilmer Hale did not address today, but the first being that we have pled all of the elements of a TVPA claim. JPMorgan Chase participated in a commercial sex trafficking venture. In the ordinary course, after Jeffrey Epstein pled guilty to conduct that constitutes child sex trafficking under the TVPA, in 2008, in the ordinary course, the bankers at JPMorgan expected that JPMorgan would exit Epstein; and instead, what happened? Pending Dimon review that’s Jamie Dimon — pending Dimon review, Jeffrey Epstein remained as a client of the bank for an additional five years JPMorgan broke the rules. In addition, after he got out of jail for conduct that constitutes child sex trafficking, and their compliance department got more allegations of more sex trafficking, who did they assign to investigate those allegations? Not their lawyers, not their investigators; they assigned the CEO of the private bank and the investment bank. Why did they do that? Because they knew if they did that, the answer would come back clean.¶

I would also note that there’s certainly not ordinary¶

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banking services here. We talk about the Deutsche Bank case, and the New York banking regulator went after Deutsche Bank for conduct that we say is similar but less egregious than here. The banking regulator found this banking conduct to be so nonroutine and to be so extraordinary that they imposed a $150 million penalty on Deutsche Bank. Again, JPMorgan broke all the rules.¶

I also want to make a note about Mr. Staley. We can put Mr. Staley to the side, as my colleague noted, and we have still alleged that JPMorgan knew and detected Epstein’s sex trafficking. In 2008, again, Jeffrey Epstein pled guilty to conduct that constitutes child sex trafficking, solicitation of a minor for prostitution. That’s what he pled guilty to. The TVPA bars soliciting a person who has not attained 18 years of age for a commercial sex act. Those are identical, your Honor, so they knew as early as 2008, if not earlier.¶

In addition, for persons over 18, they knew about force, fraud, and coercion. They had massive internal investigation teams reporting for years that Jeffrey Epstein was involved in child trafficking and human trafficking. The term “human trafficking” means force, fraud, or coercion. There are also specific internal reports of force, fraud, and coercion — fraudulently luring young girls with promises of modeling contracts, bringing young women over from Eastern¶

coast of St. . Young women brought there, obviously and¶

So now let’s put Staley back into the case. First of in the first amended complaint documents. These are all their JPMorgan’s documents. Everything we know, JPMorgan knew. JPMorgan obviously had firsthand knowledge and view of mentioned, Mr. Staley visited little St. James multiple times,¶

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or didn’t know. Everything that Mr. Staley did was within the scope of his employment, and thus imputed to JPMorgan.¶

We talked a little, you’ll recall, about the hotel cases. They cited to you Choice Hotels from the Eastern District of New York numerous times. Well, what they didn’t say about that case, Judge, is that that’s a franchisor/franchisee case, and what the court specifically said is the general rule there, no agency, no imputation. The case they didn’t mention at oral argument on Monday or today is a case that Wilmer Hale and my adversary litigated on behalf of the TVPA victim, Lisa Ricchio. That’s the Ricchio v. McLean case, Judge. That went all the way up to the First and Justice Souter, retired from the Supreme Court, designation, he — they sued both the offsite hotel Circuit, sitting by defendant and the on-site hotel employee. If you will, analogize that to JPMorgan and Jeff Staley. And what did they argue there? Of course the on-site hotel employees are agents for the offsite corporation, and of course — and Justice Souter agreed — they are the agents, and anything they know, they knew and saw, is imputed to the offsite hotel.¶

THE COURT: Whoa, whoa, whoa. It’s one thing what the court decided. I don’t see anything wrong — maybe I’m missing your point — between a law firm arguing one position in one lawsuit and the opposite position in another lawsuit. I thought that’s what we all learned in law school.¶

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MS. LIU: And I wasn’t suggesting there’s anything wrong there, your Honor. My point was that that is perhaps the most famous of the TVPA cases, of the hotel cases. It’s one that was not mentioned, and it’s one where the court said, without any pause, of course what the hotel employees saw can be imputed to their owners, the hotel chain.¶

And also, I just want to add the note, if Staley is, as JPMorgan argues, a rogue employee, if Staley is a rogue employee, why isn’t Jamie Dimon? Because the question is not, as has been sort of alluded to — the question is not whether or not Mr. Staley raped any young women in the Virgin Islands. That’s not the question. The question is: What did he know? And Jamie Dimon knew in 2008 that his billionaire client was a child sex trafficker. Staley knew, Dimon knew, JPMorgan knew.¶

With respect to the extraterritoriality arguments, this is very puzzling to me, your Honor. They cite this case InfoSpan for this point. InfoSpan involved a UAE bank defendant, a Cayman Islands plaintiff, and the issue there was credit card services to UAE customers. And the lawsuit was brought in California. There, the court found that there were not sufficient contacts with California. Here, JPMorgan targeted and transacted business for decades with Jeffrey Epstein, a resident of the Virgin Islands, who we allege his home base for trafficking was in the Virgin Islands, and the principal purpose of the accounts that JPMorgan held for¶

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Jeffrey Epstein was human trafficking. Of course we have alleged sufficient connections with the Virgin Islands.¶

With respect to CICO, we’ve proved each element. The best case that they could cite for association with a CICO enterprise is the Rosner case, Judge. If you look at the Rosner case, here’s what the allegations were there — six months of a relationship in conduct between a bank and the individual involving 38 or roughly three dozen transfers that the court said was insufficient to get us beyond sort of regular banking services. Here, we have a nearly 20-year relationship, hundreds of millions of dollars in accounts, countless transactions to young women who were Epstein’s victims and recruiters, by JPMorgan. In short, they broke every rule to facilitate his sex trafficking and then to conceal it in exchange for Epstein’s wealth, connections, and referrals. This is a far cry from the six months and the handful of transactions at issue in Rosner.¶

I will also mention the Daddario case that they cite from the Second Circuit, that case says that operation or management — which we have alleged, but nonetheless, that case says that test must be applied based — it’s a test of — it’s based on the facts. It is not appropriate, the court said, to make that determination at this early stage on a motion to dismiss.¶

Last, with respect to the pattern of criminal¶

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activity, the five-year statute of limitations applies to the look-back rule, I would just note for your Honor that 604(j)(2)(B) specifically says that does not apply in the context of criminal human trafficking. It references Title 5, Section 3541. If you look at Title 5, Section 3541, that’s a criminal statute of limitations. The first section of that statute specifically says, when it pertains to human trafficking, there is no time limitation. We’ve alleged conduct within five years, but we don’t need to because there is no time limitation under CICO to go after JPMorgan for human trafficking.¶

THE COURT: So just while we’re on the subject of CICO, so you allege a so-called association-in-fact enterprise, and the enterprise that you’re association-in-fact enterprise Mr. Epstein’s sex trafficking, positing is an between JPMorgan and or his sex trafficking venture. But your adversary says that really all you’ve shown that was the common enterprise, if at all, was an enterprise for making money, and you allege that JPMorgan’s services furthered the trafficking enterprise’s purposes, but you don’t allege that JPMorgan shared the purpose of trafficking. So I’m not sure if I’m making myself totally clear, but as I understand the argument from your adversary, it’s one thing to allege that for various claims that JPMorgan knew of and, through its services, facilitated Mr. Epstein’s sex trafficking; it’s something else¶

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to say that they together formed a single enterprise whose purpose that was. My grammar may be a little off, but anyway, you get the point. What about that?¶

MS. LIU: So under the People v. McKenzie case, which is the Virgin Islands CICO case upon which JPMorgan relies, what is required for association with an enterprise is, yes, a common purpose, longevity, and relationship. They don’t argue longevity or relationship. Obviously those two are shown.¶

With respect to common purpose, what the cases look at is were these routine, run-of-the-mill services that were being provided, or is there somehow something more going on here, and does that something more go to the heart of the enterprise? And certainly, Judge, we have alleged that here. We have alleged that at every turn, they broke every rule and engaged in not run-of-the-mill banking services but rather extraordinary banking services to facilitate, to promote Jeffrey Epstein’s sex trafficking enterprise. Why? First of all, the principal business of those accounts at JPMorgan, we allege in the complaint, was sex trafficking. So the money, the referrals, the connections, all of the business related to sex trafficking, and JPMorgan facilitated that transacted business, and fed off the wealth, connections, and referrals of Jeffrey Epstein for almost two decades. Of course they were not only associated with the enterprise; their conduct, in making the transactions, in channeling the funds, and in¶

concealing the conduct, allowed that sex trafficking enterprise to flourish, including in the Virgin Islands.¶

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THE COURT: Well, so I’m more familiar with the term “enterprise” in the context of RICO than in CICO, and I need to get more familiar with it in the latter context, but at least in the RICO context, we’re usually talking about something that has a common organization. It may be an implicit organization, but it’s not the same as a criminal organization that uses someone else’s services and this person who provides the services knows he’s providing it to a criminal organization. In my hypothetical, the aider and abettor, if you will, may have liability as an aider and abettor, but he’s not part of a common enterprise. So I’m still having a little difficulty seeing why there’s a common enterprise here.¶

MS. LIU: Sure. So we allege that had it not been for JPMorgan, that Jeffrey Epstein’s sex trafficking enterprise or sex trafficking venture could not have flourished as it did. JPMorgan provided the banking services, the extraordinary banking services and later the coverup, to allow Jeffrey Epstein’s sex trafficking venture to flourish. And under the case law, including the Handeen case we cite from the Eighth Circuit, for example, when the courts are looking at whether or not professional services can be part of an enterprise or can be associated with an enterprise, what they look at is, are these run-of-the-mill services or not run-of-the-mill services,¶

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and if the latter, did they go to the heart of the enterprise? And we’ve alleged 20 years of not run-of-the-mill services that enabled, facilitated, and allowed Jeffrey Epstein’s enterprise, the sex trafficking enterprise, to flourish, including in the Virgin Islands.¶

THE COURT: All right. So unless there was anything else you needed to cover, I think we need to hear rebuttal from your adversary.¶

MS. LIU: Very well. Thank you, your Honor.¶

THE COURT: Thank you.¶

MS. ELLSWORTH: Thank you, your Honor.¶

As to the question of the retroactive application of Section 1595(d), counsel cited so-called legislative history. That is a single — a floor statement from a single member of Congress. I know different courts have different views of legislative history writ large, but a single floor statement is certainly not persuasive history of anything.¶

I would also note, as to the parens patriae requirement, counsel just stated that the case the U.S. Virgin Islands is bringing is on behalf of the victims of Epstein who were, in her articulation, somehow residents of the island. That is an impermissible parens patriae case. That is a case on behalf of a particular individual interest. They need to plead a quasi-sovereign interest. They have not pled it in their complaint, they attempted to backfill it in the motion to¶

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dismiss opposition, and they still have not identified any facts to support a quasi-sovereign interest. What was just articulated is contrary to a quasi-sovereign interest and instead is a vindication of private interests.¶

THE COURT: I’ll have to go back and look at the complaint. Certainly what your adversary said here was that Virgin Islands’s interest was in not allowing the Virgin Islands to become an easy base for sex trafficking, which, given its remote islands and its other situations, it could otherwise easily become. And assuming for the sake of argument that that’s articulated or could be articulated in the complaint, why isn’t that enough?¶

MS. ELLSWORTH: Because there’s no factual suggestion that there’s some risk of that happening in the future, and as to past harm, there’s no articulation of how that harms the residents of the Virgin Islands. Certainly not in the complaint. Again, there’s one paragraph in the complaint that’s conclusory at best but even in the paragraphs that are cited on page 9 of the opposition brief that counsel just cited to you, paragraph 107, doesn’t have any articulation of harm to the Virgin Islands that they’re seeking to protect. In order to proceed as a quasi-sovereign, they need to articulate an interest that is different —¶

THE COURT: Yes, but I guess my question is: Assuming for the sake of argument that they had articulated the interest¶

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they’ve now articulated in oral argument, why isn’t that sufficient that the Epstein trafficking situation showed that the Virgin Islands were too easy a target for people like Mr. Epstein to engage in sex trafficking because it presented, for example, remote islands that could be used for this purpose from which the victims could not escape, because it was less in the public eye. One could go on. I understand fully your point that their complaint has not articulated it and it may be the end of that, but assuming for the sake of argument that what was articulated just a moment ago had been properly pled or could be properly pled, why isn’t that sufficient?¶

MS. ELLSWORTH: I don’t think it’s sufficient to make sort of generalized statements about sex trafficking threatening public safety or somehow threatening the residents of the Virgin Islands. It’s a very amorphous and ill-pleaded, even if it were pled, which it’s not — I know your Honor will look carefully at the complaint. It doesn’t sort of identify the concrete interests. They do need both parens patriae interest and Article III standing, right? Snapp makes that clear, as do the cases out of the Second Circuit.¶

THE COURT: Why isn’t this an easier case just on standing? I remember thinking of the famous case of Massachusetts v. EPA, where Massachusetts was able to gain standing by saying that global warming is partly caused by emissions from vehicles throughout the United States but it¶

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erodes land in the coast of Massachusetts and therefore we have standing. Why isn’t this a much easier case than that?¶

MS. ELLSWORTH: Well, Massachusetts v. EPA, the ongoing harm there was the continued both past erosion and future erosion that was expected to occur, and unfortunately has occurred, on the shoreline of Cape Cod and elsewhere in Massachusetts.¶

THE COURT: Yes, but then if you keep talking about the future, I keep coming back to the words of the statute, which is “has been.”¶

MS. ELLSWORTH: I understand, but they haven’t pled either. That’s why I’m —¶

THE COURT: I understand that point.¶

MS. ELLSWORTH: There’s no factual articulation of some future imminent harm necessary under Mass. v. EPA or Spokeo v. Robins or any of the other Article III cases, and there’s no articulation of what the past harm to residents that is a quasi-sovereign interest that has been inflicted.¶

THE COURT: This goes back to an earlier argument. If the residents include the victims who were transported there, then —¶

MS. ELLSWORTH: Then that harm is not a quasi-sovereign interest, that’s a private interest that the U.S. Virgin Islands would be trying to advance on behalf of individuals.¶

4 THE COURT: Okay.¶

5 6 MS. ELLSWORTH: If I can make a few other points, your Honor.¶

7 THE COURT: Yes, absolutely.¶

8 MS. ELLSWORTH: So —¶

9 10 THE COURT: I wanted to hear what you had to say about the enterprise issue.¶

11 12 13 14 15 16 17 18 19 20 MS. ELLSWORTH: Yes, I think your Honor’s questions were correctly directed towards trying to identify what that enterprise is. I don’t think, number one, it has been pleaded; number two, I don’t think counsel was able to articulate an enterprise that would satisfy either the federal RICO or the CICO case law that has been cited to you. Again, there needs to be more than we we’ve talked about participation and what that means in the context of TVPA cases. In RICO, there needs to be a meeting of the minds; there needs to be a more overt act than it’s both participation or an enterprise.¶

21 22 23 24 25 THE COURT: Basically, this is not the only possibility, but most common association-in-fact under RICO are conspiracies. And this is not an agreement that would constitute a conspiracy, or at least that is the argument you’re making. I think it has some force.¶

THE COURT: All right.¶

MS. ELLSWORTH: That’s being advanced, quite ably, by other parties sitting in this courtroom.¶

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MS. ELLSWORTH: That is correct, your Honor. I would also note that as counsel noted, the U.S. Virgin Islands used its enforcement power to obtain documents from JPMorgan Chase on which it based the allegations of its complaint, so it has already received the discovery that it might need in order to make out or attempt to make out a well-pleaded complaint on all of these counts and it has not done so. I do feel compelled to note that the Court is constrained by the allegations of the complaint. Counsel’s argument today was not so constrained. There were several statements made that are not supported by the complaint at all; in particular, the suggestion of Mr. Dimon having any knowledge of anything.¶

THE COURT: Well, I know all about constraints because I’m a married man. But in any event, I take your point.¶

MS. ELLSWORTH: The final point I’d make, your Honor, is just, I didn’t argue the factors of the TVPA to you. We do have separate arguments as to why, even if 1595(d) applies retroactively and even if they have sufficiently made out a parens patriae complaint, the TVPA claim still fails on the merits. I won’t repeat them, but I will just point out to the Court that the knowledge requirement for the attorney general statute is different than the knowledge requirement that needs to be pled by a victim, such as the Jane Doe case. There is no constructive knowledge or no “should have known” aspect of the claim that the U.S. Virgin Islands is bringing. They do have¶

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to show actual knowledge in order to proceed under the TVPA.¶

THE COURT: Okay. The only thing that was sort of new was that last point. If counsel for the Virgin Islands wanted to respond to that last point, I’ll allow her; otherwise, we’ll move on.¶

MS. LIU: I’m sorry, your Honor. My colleagues were distracting me and I missed the last point.¶

THE COURT: II, wow. Boy. You’re sure he’s not a fifth column?¶

So there was argument being made as to what knowledge had to be shown, but, you know, I think, in all fairness, I wanted this argument to go a half hour. It’s already gone almost an hour. I will look at your papers carefully, and if there’s anything further I need, I’ll let you know and you can submit something.¶

MS. LIU: Thank you, your Honor. Yes. We briefed that issue in our papers.¶

THE COURT: Okay. So I will reserve judgment, but as already indicated, we’ll get you a bottom-line ruling by the end of the month. And by the way, I will, of course, write a full opinion on all these issues. I just don’t think I’ll have a chance to finish that by the end of the month. But there will be a full opinion as well as a bottom line preceding it.¶

All right. Now we need to turn to some discovery matters. And the first one on my list is the motion by¶

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JPMorgan to compel the production of documents from the Epstein Victims Compensation Program. And I appreciate that counsel for that program has patiently been here, but let me hear first from counsel for JPMorgan.¶

MS. ELLSWORTH: Me again, your Honor.¶

So we have a motion to compel the production of documents relating not just to the plaintiff — this isn’t just the Doe case right now, but from the victims compensation program for the applications and other information submitted by —¶

THE COURT: What about that? As I understand, the administrator argues, among other things, that there’s a privacy concern here that can be outweighed, but it has to be outweighed by some very special need.¶

MS. ELLSWORTH: There certainly is a privacy concern, and I think that concern is ably addressed by the protective order in this case. We have also offered to have the information, names redacted and other information like that. We’re not seeking that information right now.¶

The reason why this information is so important, and the reason why we’re able to overcome whatever privacy concern might exist and has been articulated, is because this repository of information is quite critical to the class certification arguments that your Honor will hear. This will identify differently situated individuals who are thought to be¶

or who are part of the putative class right now and will identify — go to issues such as typicality, commonality, predominance, etc., to allow the Court to understand whether a class can be certified at all in this case and, if so, what the contours of that class might be. So we think we’ve more than overcome —¶

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THE COURT: So for example, I’m looking at request 7, documents sufficient to show the total number of applicants that the program approved for any compensation and the reason for those approvals; and request Number 8, documents sufficient to show the total number of applicants that the program denied any compensation, the reasons for those denials. What does the exercise of their judgment in that regard have anything to do with this case?¶

MS. ELLSWORTH: Well, perhaps the exercise of the program’s judgment may be — we don’t know what these documents look like so we don’t know what information is being weighed, but certainly the submission that different individuals made to the program that would demonstrate differences in the length of time during which they were abused, differences in the effect or impact that that abuse may have had on how they came to be involved with Epstein no longer be involved with him, those are them, differences in and how they came to all differences that — both the way they might be weighed by the program but, more importantly, information that was submitted to the program¶

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would be very important for understanding the class certification question.¶

I would also note that this is a repository of this information that typically doesn’t exist in a case where you have a putative class, such as like we do in this case. It’s a repository that would allow the information to be considered by the Court and to be marshaled by JPMorgan without having to invade the interests of unjoined class members at this point, and so that is a reason why there’s — again, with the appropriate privacy protections of the protective order and potentially something more, this information already exists and can be provided and can be considered by the Court to understand whether in fact the class certification requirements are met here.¶

THE COURT: All right.¶

MS. ELLSWORTH: The other point I’d like to make, your Honor, is we did attach — I don’t know if the Court has the attachments there, but — the protocol that is publicly available that the program used or announced. I can pass up a copy if you don’t have one.¶

THE COURT: Yes. Let me see that.¶

MS. ELLSWORTH: So the protocol — and I point the Court to page 9 of the protocol — at the very end indicates two things that I think are important for the Court’s consideration. The first is that all confidentiality¶

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requirements are subject to law, regulation, process. I don’t think the Court needed the recognition of that in order to exercise its certainly that was recognized participated in it that these have some — would be subject and judicial program’s power, but by the program and by those who confidentiality obligations would to something like this.¶

The other point I would raise to the Court is the paragraph directly preceding that indicates that individual claimants are not bound by any confidentiality if they choose to disseminate the information that they submitted. If they choose to disseminate their experience with the program, they are free to do so, under the weight of the confidentiality protections that were put in place for this program. So the program has made a suggestion applies here. This is unlike Court I think would typically of a mediation privilege that a mediation privilege that the see because it’s only one way; apparently, it doesn’t apply necessarily to the other counterparties to the privilege. And so that as a matter of fairness, if the Court is — one of the factors that the Court considers in determining whether a mediation privilege, once invoked, can be overcome, the fact that one side of the equation can use this information and JPMorgan is not being allowed to access it is we think unfair because it would be necessary for the Court’s full consideration of the class consideration.¶

4 5 MR. : Good afternoon, your Honor. for nonparty Jordana in her capacity as administrator of the program.¶

6 7 You know, we’ve been going here for roughly two and a half hours, and the first hour was —¶

8 THE COURT: Well, I’m just getting going.¶

9 10 11 12 MR. : Just getting going. And I listened for an hour as the Court made its schedule on two cases with trial dates, etc., and then we heard able counsel argue motions to dismiss for approximately another hour.¶

13 14 15 16 17 18 19 20 21 22 23 I think it’s worth pointing out what a marvel this program was, and is, because in this program, about 130 claims were sort of adjudicated through this ADR process in an efficient manner, in about one year’s time. Many of those claims had already been subject to filed litigation, and other claims were filed with the administrator after the program was publicized. The program paid out in a sufficient manner approximately $121 million. And at the cornerstone of this program is the promise of confidentiality. The program was built around confidentiality, and it was confidentiality as to -¶

24 25 THE COURT: Why isn’t that problem — which I agree with you is a serious matter — solved for all these immediate¶

THE COURT: All right. Thank you very much.¶

Let me now hear from counsel for the program.¶

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purposes by (a) redacting the names, and (b) having the documents subject to the Court’s protective order?¶

MR. : Well, let me start with the protective order first, because “protective order” is quite broad. It includes literally hundreds of potential people, including all of the personnel at JPMorgan, which is a company that employs tens of thousands. The protective order is also no guarantee that the documents would become part of the public record at a trial. The protective order —¶

THE COURT: Well, that’s true, but that’s in the Court’s discretion.¶

MR. : The protective order really is, I would submit, a slippery slope towards eventual publicizing of the document and the circumstances of the individuals.¶

THE COURT: In virtually every case, of any size, this and every other judge in this court gets a confidentiality order, and the main difference between some of those orders and my order is that I put the parties on notice that the Court reserves the right to make something public if it has to do with a motion or has to do with evidence at trial or something like that, so that no one can claim that they were surprised when the Court does that, but obviously, like every other court, this Court is very sensitive to protecting the confidential information of victims. So I don’t understand why you think it’s any different here.¶

a¶

First of all, the names are redacted. And I understand that’s not the end of the question. Second, though, you might want to ask me to make it attorneys’ eyes only. That might be a good resolution. But in any event, just like your agreement had a confidentiality provision, this case has a confidentiality provision.¶

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(Continued)¶

MR. : Well, so here’s what I think makes it different, and some of it goes to the nature of the private intimate details of the nature of the abuse that the claimant suffered. But there’s a substantial number of the claimants in the information that’s sought by JPMorgan on their motion who are claimants that never would have stepped forward and asserted their claim but for the principle of confidentiality at the core of the program and wouldn’t have signed up for the process —¶

THE COURT: Well, I mean, that’s relevant, but, first of all, this was not itself a court order.¶

MR. : It was —¶

THE COURT: At least so far as I can see from what was handed to me.¶

And, second, more importantly, as was pointed out by your adversary, it says, in a whole separate paragraph when they’re getting to confidentiality, “All confidentiality requirements are subject to law, regulation, and judicial process.”¶

And one would have to be very cloistered not to know that the issues involving the Epstein victims were going to be the subject of other litigation.¶

MR. : Your Honor, this was a court-approved and authorized program.¶

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THE COURT: Okay, what court approved it?¶

MR. : The Superior Court of the Virgin Islands in the matter of the Estate of Jeffrey Epstein. The architects of this program — Ken Feinberg, Camille Biros and our client, Jordana — traveled to St. and testified about the circumstances of this program, including testimony from Ken Feinberg, who was questioned under oath, back on February 4, 2020, about the nature of the program. Concerns about confidentiality were raised by the Attorney General of the U.S. Virgin Islands, and Mr. Feinberg gave testimony about how important it was that the protocol expressly secures the confidentiality of anything provided by the claimant.¶

He also testified that the claimant, and the claimant alone, decides the extent of transparency or disclosure; not the program, not the administrator, or the estate. I have extra copies of what I’m reading from.¶

THE COURT: No. No. I appreciate that and like most people, I’m a great admirer of Mr. Feinberg, and that is despite the fact that he and I served in the U.S. Attorney’s Office together, so I know what a bad sense of humor he had. But, of course, that court — and I’m glad to know, it’s important to know that the court approved this order, but, of course, that’s not binding on this Court.¶

MR. : No, but now I think we’re in the terrain sort of covered by the Second Circuit’s case in Telligen and¶

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your colleague, Judge Furman’s, very sort of thoughtful decision in Accent Delight, and what are the reasons for applying a mediation privilege in this circumstance, and that is to incentivize — among other things, incentivize participants to use an alternative dispute resolution program to settle matters, to provide information and arguments on a confidential basis, and keep litigation from clogging the courts, and that’s exactly —¶

THE COURT: And, of course, Judge Furman is another great judge. But there have been other judges who have questioned the entire effect of that in keeping from the public important information and allowing people who have committed wrongdoing to, in effect, buy off their victims under a promise of confidentiality, and so it’s, I think, a controversial area.¶

MR. : Well, I don’t think the non-disclosure agreements that your Honor is referring to potentially from the MeToo cases over the last four or five years really are what this program was about. So the types of programs, and this program, indeed, that Mr. Feinberg and others have worked on and structured, such as the 9/11 Program and allegations of sexual abuse in the Catholic Church have really efficiently dealt with hundreds and hundreds of claims in a way that benefits the victims —¶

THE COURT: And that’s laudable. No one could be other than impressed by that, but I don’t think that’s¶

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dispositive — I’m still not understanding. Let’s assume for the sake of argument that these documents were provided on a attorneys’ eyes only basis so that they could, for example, make use of summary information on a confidential basis in submissions in class certifications so they might want to argue, for example, on class certification that we now know that the situations involving these victims are also sui generis that there shouldn’t be a class. And I might accept that or reject it, but the point is, they would be in a much better position to make that kind of argument if they knew about all the particulars that had been furnished in your program. But if we kept it to attorneys’ eyes only, I’m not sure why anyone is harmed.¶

MR. : Well, there are several instances of this. Claimants came in as part of the program, spoke to and her colleagues in the program and were quite explicit, they had never told the details of what happened to them to any other person before, and now those details will be shared with a class of people in violation of the promise of confidentiality to induce them to participate in the program. It’s a —¶

THE COURT: It’s a class of people, if we limit it to attorneys’ eyes only, would be a rather small class — a wealthy class, admittedly, but a small class — and given the attorneys we have in this case, I don’t have any hesitation in¶

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believing they would adhere very strictly to any limitation to attorneys’ eyes only.¶

MR. : But your Honor would have to agree that is just an interim step, and the limitation on the use of the materials is not just for the class certification process. Once the materials go over into the hands of JPMorgan and the other lawyers in this case, it’s for all purposes in discovery. And I think, your Honor, the part about —¶

THE COURT: That’s right, but it’s also still limited — none of it can be disclosed because it’s attorneys’ eyes only. And the disclosures, if any, are governed by this Court, and, of course, if I made any disclosures at all, I would only do so after giving you first an opportunity to be heard.¶

MR. : Well, your Honor notes the potential for the application, opposing class certification, could be better or stronger if JPMorgan had access to these individualized statements. There is — and this goes to the need aspect of getting through the Telligen standard, the heightened standard that applies to mediation materials, there’s a wealth of material that’s available to JPMorgan.¶

As I think someone noted, they’ve been investigating these issues for years. There are scores of publicly filed lawsuits with individual detail about the abuse that the victims suffered. There’s information —¶

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THE COURT: Wait a minute. I don’t understand how you how that’s consistent with the argument you just made. If you think 98 percent of what you have is already a matter of public, then no one can complain about your turning over the - because there is no confidentiality because it’s all out there in the public domain.¶

MR. : I’m not saying 98 percent, your Honor. I’m saying there is sufficient sample size of information about the abuse that victims suffered with Jeffrey Epstein and others in the public record and in the hands of others where it is not subject to confidentiality of the program. And that’s on the public docket in scores of lawsuits. It’s in the hands of statements —¶

THE COURT: Your position has got to be, if I understand it, that — for example, let’s take the two I just referred to. Request number 7. Documents to show the total number of applicants that the program approved for any compensation and the reasons for those approvals.¶

Let’s just take the first part of that. Documents sufficient to show the total number of applicants that the program approved for any compensation. What possible objection would you have to that?¶

MR. : We didn’t have an objection to the number. We gave them the number of applications that were approved.¶

THE COURT: So and then — and if the reasons for¶

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those approvals did not include the names of the persons, this is really — I’m not sure — it’s really the program’s thought processes that are being revealed there, which may not be relevant. That’s a different question.¶

MR. : I think your Honor already observed that—¶

THE COURT: But I don’t see the confidentiality being implicated.¶

MR. : If we got to that level, we’d have some pretty thorny issues of attorney-client privilege in there since is an attorney and had attorneys on her staff making those determinations. So the reasoning beyond approval, which is really the question —¶

THE COURT: Okay. And of course any document demand can always be accompanied by a claim of privilege on particularized documents, so…¶

MR. : If your Honor is moving on to request number 8, we also gave them the number of applications that were denied. I’ve been talking about the total number of claims made —¶

THE COURT: How about — because this has been an issue in this case in the scope of releases. So request number 12: All releases, including drafts and final versions, whether executed or non-executed, and all communications concerning the releases.¶

Now, let’s assume that I found that overbroad and¶

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limited. For example — I’m not making any ruling now, but just, for example, to all releases. Again, with the names redacted and so forth, where’s the harm there?¶

MR. : Well, number one, we gave them or offered to give them a blank form of the release. I might note here that we’ve had similar discussion with the attorneys for Deutsche Bank who served a similar subpoena on us. We worked it out.¶

THE COURT: Yes, because they’re relying on arguments about the release in their case.¶

MR. : And they have the form of the release. I believe it we made it available to JPMorgan. The program’s perspective covered by the promise of confidentiality, there’s an alternative source for this. This whole argument about central repository, that’s a matter of convenience for JPMorgan. If they put the work in your Honor, and they have resources — sometimes we talk about we’re up against the government. The government has unlimited resources. JPMorgan & Co. is the next best thing they have virtually unlimited resources, and the estate has copies of all these releases because they’re a party to the releases. If they want the releases, they can subpoena the estate. And then deal with the question of redacting names with the estate.¶

The program, which is foundedd on this promise of confidentiality and all the benefits to the litigants and¶

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society more generally — think about the next time one of these programs is designed, your Honor. Without the promise of confidentiality, it just won’t be as effective. So we’re not just talking about the claimants in this particular case, the 130 successful claims, and the others who were denied. Obviously, they still get the promise of confidentiality too. We’re talking about the next situation that involves sensitive details of personnel abuse, sexual or otherwise, who would be willing to participate in a program on a confidential basis but not willing to participate if it involved the prospect of what your Honor is sketching out here; that their details are first made available to many lawyers who will keep them to themselves potentially, but then on the slippery slope to later disclosure in a litigation. That’s not what these folks signed up for, in fairness to them and future claimants.¶

THE COURT: But, you know, they knew because it says it right in the agreement, which you now tell me was a court order, that there were possible limitations to this. It says it right in the agreement. You know, the most basic principle of all is a party and a court is entitled to every person’s evidence. That’s a principle that goes back about a thousand years in the common law of England and carried over here. Privacy is a very important contrary of consideration, and I don’t want to be misunderstood. I take that very close to my heart in a case like this. But it’s not a right for a private¶

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citizen to say, okay, I want some money because I’ve been done wrong, and I’ll sign up to get that money, and anything I provide you with is, as a matter of law, universally without disclosure of any kind whatsoever. And, therefore, where the agreement says that all confidentiality requirements are subject to law, regulation and judicial process, I, the victim, say I understand that that means zero, and is just some language some lawyer put in there and some court approved. That can’t be right.¶

MR. : I’m not suggesting it’s right. I’m suggesting the law, regulation, and judicial process is the law in the Second Circuit decision in Telligen, and further extended by the Accent Delight case by Judge Furman, and we think that standard applies here. They’ve not shown heightened need. The materials are available elsewhere. And —¶

THE COURT: I apologize, but I do want to give your adversary one last shot to be heard.¶

Is there anything else you want to say.¶

MR. : Yes, because the suggestion that redaction is the solution is a solution that would be, I think for the program such as it is, there’s no program any more. It’s shut down. There’s no staff. There’s the administrator, and I think one lawyer working with her, moving on to other projects. In the Maxwell case in front of Judge Nathan, which was quite a limited different application, different interest at stake, the¶

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materials relating to four witnesses were ordered to be turned over, but just the submissions, nothing else. There were 6,000 pages of material for four. We have hundreds of claim files. And to go through them and redact — they’re not readily available. They’re not in a searchable database. They’re just sort of sitting electronically offline. To say to go in and pull those and redact out names, that’s a project that will take many more lawyers than are in this courtroom many, many, many hours to get done.¶

THE COURT: I don’t know about that. If I used the lawyers in this courtroom, they’d get it done in about two minutes, but the — but maybe the argument is that to the extent you have to use time of lawyers who have already — who are no longer involved, that they need to be paid by JPMorgan.¶

MR. : Well, I suppose that’s up to JPMorgan and maybe we can work something out. I’m talking about —¶

THE COURT: I don’t think it’s up to JPMorgan. I think it’s up to me.¶

THE COURT: I’m talking about burden on the administrator, who — the program is essentially shut down. I think has one lawyer on staff and maybe an assistant that this falls to her and them to, in the first instance, figure out what’s there. I’m making a burden argument under¶

THE COURT: Let me ask you this: When was this¶

4 THE COURT: That’s what I’m asking.¶

5 6 MR. : More than a year ago, so but the subpoenas —¶

7 8 9 10 11 12 THE COURT: So why do you have anything if according to this what you say is an order, it says to protect the privacy of claimants participating in the program, all personal information provided by the claimant during the process will be returned or destroyed within one year after the conclusion of the program. So have you done that?¶

13 14 15 16 17 18 MR. : Not yet. In part, because of the litigation in front of Judge Nathan, and in part because there was an ongoing process to clear liens with respect to many of the claims. And that process didn’t wind down — there was still — the year hadn’t finished yet and the subpoena from JPMorgan was served,¶

19 THE COURT: Thank you very much.¶

20 Let me hear from JPMorgan.¶

21 MS. ELLSWORTH: Thank you, your Honor.¶

22 23 24 25 Just briefly on the confidentiality concerns that the Court was discussing with counsel, we agree with the Court that a protective order, including modifications, to make the production subject to attorneys’ eyes only, outside counsel¶

program shut down?¶

MR. : That’s a very interesting question because under the protocol, one year from final date.¶

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eyes only, whatever appropriate modifications the Court may see fit to protect confidentiality would be the way to address that articulated concern.¶

THE COURT: Let me ask you this: I understand that the program offered you a compromise, which was a chart showing the total number of individuals who applied to the program through the registration or claims filing process.¶

Second, the total number of claimants who applied to the program.¶

Third, the total number of claimant deemed ineligible.¶

Fourth, the total number of claimants deemed eligible who received an award and signed a release.¶

Five, the total number of claimants deemed eligible who declined an award or did not timely respond within the response deadline.¶

And, sixth, the aggregate amount of payment made to eligible claimant who received an award and signed a release.¶

Now, putting aside the fact that that makes me a little skeptical of your adversary’s argument about how burdensome this is all going to be, because it’s certainly going to have to do a lot of review to supply the chart, but why isn’t that sufficient for your immediate purpose?¶

MS. ELLSWORTH: Your Honor, we do have that chart.¶

It’s actually Exhibit 1 to our letter brief, and the Court has it as well. I agree that it does seem to undercut a bit the¶

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arguments of burden that we heard there at the very end.¶

What it does not provide is any information about the types of claims that were submitted and how differently situated or not the individuals who submitted claims were, whether they were granted some compensation or a larger amount, a smaller amount, if they were rejected compensation, the information that was provided goes to the questions that the Court will have to consider at class certification, including commonality, including whether the named plaintiff is typical, typicality, of the class she seeks to represent, and including some of the questions that relate to the predominance of the injuries suffered by the named plaintiff here versus the members of the class.¶

THE COURT: What about — since your immediate reason for this demand relates to the class certification, what about a requirement that in addition to being attorneys’ eyes only, that all the information be returned and no record kept of it by your client after class certification is resolved.¶

MS. ELLSWORTH: I think that could be a possible compromise. I would want to think there one aspect of the request we made does relate to the named of plaintiffs and certain information. We have information provided by the plaintiff that was submitted. What we don’t have is what was considered by the program in determining what relief to grant that individual. I think if the class is not certified, then¶

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returning all that information would potentially be a compromise. I’d have to understand what is in there to know whether there’s some other merits reason that that information might be —¶

THE COURT: Well, you could always reapply upon a more specific showing as to an individual file or something like that.¶

All right. Here is where I think I come out, and this is not going to resolve this until next week, but it gives you the — I think there are at least some of these requests that the Court will grant. I think many of them are overbroad and will have to be narrowed, and some I may not grant at all. Those I do grant will be granted on attorneys’ eyes only and with the qualification that all documents — no copies could be made, and all documents provided have to be returned to the program after class certification is resolved. But with those limitations, I think there will at least be some of this that I will grant.¶

To move this along, notwithstanding now that we’ve extended the trial endlessly to what, II, 2029 — no, it’s October 23, 2023 — I will get you an order on this by the end of next week.¶

MS. ELLSWORTH: Thank you very much, your Honor.¶

MR. : Your Honor, may the Does be heard on this issue?¶

4 5 6 7 MR. : And, just briefly, your Honor, a couple considerations. One, even if your Honor is going to grant this, at least in part, were to be turned over for attorneys’ eyes only, if we were to do that, the names of the individuals victims are totally irrelevant for class certification purposes.¶

8 9 10 THE COURT: I’m sorry, I meant to add that, and the name — while it will be turned over, it will redact the names. Thank you.¶

11 12 13 14 15 16 17 MR. : Because I know what these submissions consisted of. In fact, with respect to the named plaintiffs in this case, we have no objection to those records being turned over. We’ve turned them over. We have no problems from the program. But because the submissions also include the names of other victims, for instance, the way in which this scheme worked —¶

18 19 THE COURT: That’s why we’re going to redact the names.¶

20 21 MR. : Okay. Family members other identifying information such as that.¶

22 23 24 25 THE COURT: Yes, anything that on its face would identify who the person was will be redacted. But that’s not the same as saying, II, if you wanted to do a lot of homework after you’ve got this, you might be able to figure out who that¶

is. That would be too burdensome I think and too impossible to carry out. But family members, yes, that will also be redacted.¶

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MR. : We would also ask in that same vein that medical records not be produced as well. They would be identifying, probably violate HIPAA as well, but not something that’s going to be play into the class certification.¶

THE COURT: I’m not sure they asked for medical records.¶

MR. : That’s part of the submission, so I just didn’t want that to be included, even though it might not have been specifically requested.¶

THE COURT: Anyway, yes, I agree. No medical records. By the way, on that one, as opposed to the other ones, if after receiving the information JPMorgan thinks that in a particular case it is vital for class certification purposes for them to have the redacted medical records without the name, but what’s in — I doubt that will be the case, but I will give them leave to then separately apply, and you’ll be heard, of course, in opposition.¶

MR. : Thank you, your Honor.¶

Also, the time frames for complaints against JPMorgan, the earliest timeframe begins 1998. There were victims that were abused prior to that that would in no way fall within the class. I don’t think that it would be discoverable then for¶

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their files to now be turned over, especially given the fact and I think that your Honor has —¶

THE COURT: Why isn’t that potential — it may not relate to class certification, you may be right about that. If the case were to go to trial, it would be 404(b) material. But maybe you’re right, it doesn’t have anything to do with class certification.¶

MR. : Yes, your Honor. So at this stage I think that would just — that would not appropriate.¶

THE COURT: I want to hear from your adversary on that one.¶

MR. : Okay. Lastly — and I think your Honor touched on this — there were two representations that many relied upon, and I think that counsel for the program referred to them as promises. And they were promises.¶

One was that this was going to be entirely confidential for the victims, meaning it was a one-way street. If the victim chose at the program to disseminate information, they could. And that goes along with the rights of crime victims. But the program would not.¶

And so some of these individuals that applied to the program, they relied on that promise is when they applied to the program. And I understand are there are exceptions to that. Not only that promise. It was the promise that as soon as it was over, their documents would be returned or destroyed,¶

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and they have all believed that their documents had been destroyed, only to now find out — and probably not even now, when the press reports it tomorrow — that these promises upon which they relied were false, promises and now to their detriment there is going to be a large class of —¶

THE COURT: Wait a minute. If you’re saying that the program did not fulfill its contractual duty, then that’s I suppose they would have a claim against the program. But if I mean, I’m reminded, and this is not a perfect analogy, but it is I think relevant. So every company has its document “retention policy” which really means a document destruction policy. And all documents are supposed to be destroyed every three years, whatever it is, depending on the company, but once litigation has started, that automatically comes to a halt.¶

And as I understand it, the reason apparently why initially this came to a halt was in Judge Nathan’s case. At least that’s what I understood from what the attorney for the program says.¶

MR. : That didn’t stop the time limit for the entire destruction process. That related to the four victims that were testifying in that particular case. But —¶

THE COURT: Well, if it didn’t, then the question is why hasn’t it been destroyed?¶

MR. : We’re still asking that question, but there’s going to be victims asking that question tomorrow¶

morning.¶

4 MR. : Thank you, your Honor.¶

5 6 THE COURT: Thank you. I do want to hear from JPMorgan in a minute on that one aspect, but let me hear from—¶

7 8 9 10 11 12 13 14 15 MR. : On that point the program wasn’t wound up, the year hadn’t run, and because there was still cleanup to do with respect to lifting liens, with respect to certain Medicare, Medicaid benefits, I think it is, the work of the program wasn’t done. The year was running, and we got the subpoena. So, you know, we were really right at the edge and the implementation of the retention policy was about to be acted on, we got the subpoena. It was very poor timing, as it turned out.¶

16 THE COURT: Let me hear from JPMorgan.¶

17 18 19 20 21 22 23 24 25 MS. ELLSWORTH: Thank you, your Honor. Two points that I wanted to make or address. First, as to Mr. mentioned medical records, what we have seen in the one submission that we’ve seen is medical record was the only thing that was submitted to the program. There’s a formd that was filled out and a narrative, but in terms of some of the information factual information that allowed the program to make determinations about preexisting conditions, et cetera, that was all in medical records and evaluations. So I heard¶

THE COURT: Let’s find out from the program counsel why that hasn’t happened.¶

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the Court to say that maybe medical records —¶

THE COURT: I don’t see how it relates to class certification.¶

MS. ELLSWORTH: Well, it relates to whether there are any preexisting conditions that any individual victim had that either affects the compensation that the program was willing to give them or affects —¶

THE COURT: How does that relate to class certification?¶

MS. ELLSWORTH: Again, it relates to whether damages can be determined on an individualized or class-wide basis, among other things. It also relates to the different aspects of alleged trafficking, and the force, fraud and coercion requirement that needs to be shown and whether there are different victims who are differently situated in terms of their interactions with Epstein. So I think the medical — I’ll be happy to come back with another application if we get information and it turns out that the medical —¶

THE COURT: I think I’m still going to exclude the medical records without prejudice to your coming back in any individual case and saying we need the medical records for this particular person and here is why, and then we will deal with that then one way or the other.¶

MS. ELLSWORTH: Okay. I will tell your Honor, I think we will be back before you on that, but I’m happy to wait and¶

4 MS. ELLSWORTH: Your Honor asked about information outside of the class period or application for individuals.¶

5 THE COURT: Yes.¶

6 7 8 9 MS. ELLSWORTH: To the extent that there is no allegation of abuse that takes place within the class period, I don’t think we’re seeking that, but there are many individuals—¶

10 THE COURT: Where there is a continuing abuse.¶

11 MS. ELLSWORTH: Yes.¶

12 13 14 THE COURT: Well, I agree with that. If you’re not seeking it for ones that ended before the class period, they don’t have to produce that, but they do have to produce —¶

15 16 MS. ELLSWORTH: If there’s anybody that falls within the proposed class definition, then that¶

17 18 19 20 21 22 23 24 25 THE COURT: But I’m going to — one thing that I think should be made clearer, including to any victims, a lot of these requests have nothing to do with any individual victim and don’t reveal even on their face anything of a personal or private nature. It’s one thing that’s already been provided documents sufficient to show the total number of applicants. That’s a number. All releases — I may limit that to all signed releases — but, in any event, all releases with the names redacted. That’s of relevance, if at all, because of¶

see what we get —¶

THE COURT: It’s always a pleasure to have you back.¶

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important arguments that have already been made in this case about the scope of the class, who was released, who was not released, and so forth, and has nothing to do with any individual’s personal private information.¶

I’m not sure whether I’m going to grant this, but documents showing why the program decided to award to some victims and not to award to others, and putting aside any attorney-client privilege or any other privilege that might or might not apply to that. I don’t see once the names are redacted how that’s likely to get into anything that would compromise the privacy of any individual.¶

If you are told, we decided to reject individual unknown X because that individual could not show any injury, you know, something in that broad form doesn’t implicate privacy.¶

Would the medical records that are relevant to that maybe implicate privacy? Yes, that’s why I’m at least initially excluding medical records.¶

Some of the other things that I’ve already excluded, and most obviously the name, implicate privacy? Of course.¶

So that’s why we’re counting that all out.¶

But I think the — I suspect that these documents as now limited and, of course, limited to attorneys’ eyes only, will be ones that probably no victim in fact would object to turning over if they could actually see it. And, of course,¶

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the victims themselves retain the right to disclose information. That’s not the issue here. They’re not being asked for their permission. But I think the — it’s the assertions of privacy here can be easily protected in all relevant ways by the many limitations that the Court has now already indicated it is going to impose, as well as further limitations on the scope of particular requests that I will make evident in my ruling next week.¶

MS. ELLSWORTH: Thank you, your Honor. We do, of course, takes the confidentiality obligations very, very seriously, and I know your Honor understands that.¶

THE COURT: Very good. Thanks very much.¶

All right. So moving right along. The next item is the plaintiffs motion seeking production of documents from prior to 2006. So let me hear first I note for the record that this motion was filed without the Court having expressly granted leave to file the motion in violation of my individual rules, so naughty, naughty, but I don’t think it was a significant violation. So let me hear from moving counsel.¶

MR. VILLACASTIN: Good evening, your Honor.¶

Andrew Villacastin from Boies Schiller Flexner.¶

On the procedural matter, our understanding was when we spoke to , that we raised that we would have issues slight variations from the —¶

THE COURT: I’m sorry, I granted the Virgin Islands¶

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leave, but I didn’t grant leave to Jane Doe.¶

MR. VILLACASTIN: Right. Our understanding from the conference, it wasn’t reflected in the email order explicitly, but —¶

THE COURT: And it’s really — I just couldn’t resist, but in any event, it’s not a violation that I considered of any materiality whatsoever.¶

MR. VILLACASTIN: Thank you for saying that.¶

I think at 7:00, you yourself said that evidence predating 1998 would be relevant under Federal Rule of Evidence 404(b). Five minutes later, Ms. Ellsworth said she would be seeking documents from 1998 onwards from the Epstein Victims Compensation Program. Our motion for the same reason as seeking documents from 1998 to 2000, which is a run period that exists after the Court granted USVI’s motion at Docket 73 on March 9. We are requesting that the date for our discovery go back two years to 1998, which is to encompass our class period.¶

I don’t think there’s a real argument that document discovery into 1998 would be relevant. So the knowledge would shift to any burden arguments that the other side would have. We have asked them to substantiate their burdens. We have not received any number substantiating that burden.¶

I will point to their brief where in a footnote on page 8, they say they have not even collected ESI or can confirm its existence, and therefore, you know, they have no¶

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basis to oppose this request. So unless the Court has any questions —¶

THE COURT: Well, let me hear from the opposition.¶

MR. BUTTS: Good evening, your Honor. I will be brief on this. I will start where you started, which is the absence of the request or the permission to file. I’m not standing on that, but it’s relevant in this way. You didn’t give permission to file because they didn’t ask for it because they never raised this issue for us. This was a negotiated process where the parties would negotiate a custodian’s burden in the context of burden, custodian search terms, 300 of them, and time period.¶

And in the record before you is the documents where we identified the custodians from 2000 to then 2013. We took it forward. The Virgin Islands had an issue with the end date. Nothing in that record about anything of 1998 and 1999. They asked for more custodians, and we offered a number from - because of the burden with particularized periods for individuals positioned in relevant spots, right, JPMorgan’s a big company, employees move around the company a lot, decades does not make sense for every person. We see in that, and it’s also in the record before you, those we had particularized periods for in the second, and the earliest was 2006, which was really an inflection point in this case when Mr. Epstein was arrested in Florida, his first arrest.¶

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And the response back from , but with a note that she was speaking on behalf of both plaintiffs, because we’ve been dealing with discovery in a consolidated way, is: Thank you for the compromise. Please add these three additional custodians which we negotiated over time. To be sure, there was lots about the notion of 2013, we extended to ‘14. It was the subject of a separate motion. We’re executing your Honor orders to take that out to 2019, but there was never the idea that, II, and also ‘98 and ‘99.¶

What we got when we were inspecting the Virgin Islands motion on the tail end was the pair move of, well, we’ll at the couple years to the front end. So it was never discussed in that context, and I think it’s improper in that regard.¶

The other thing is there really isn’t a reason for it. It’s an arbitrary notion that the Doe plaintiffs are here trying to say let’s have a class starting in 1998. Ms. Doe alleges specifically she was — claims to have been victimized between 2006 and 2012. When you look at the body of her complaint, which we have cited in the papers, and there’s no - nothing contrary from Ms. Doe’s side is the allegations about what JPMorgan’s conduct supposedly changed based on Mr. Staley, and the allegation is expressly around 2000, Mr. Staley gets involved with Mr. Epstein and develops this relationship and the case goes on.¶

So the period that we offered was tied to those¶

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allegations. It was never any contrary argument. There was never any requests for permission to come in at 1998 and 1999. And, candidly, this is an exercise in adding burden when we’re moving through quite a lot of things on an appropriate schedule.¶

The reason that counsel points out, and we pointed out, that we have not collected 1998 and 1999 is because it was always dealt with as a — in the context of negotiations that we were starting off in 2000.¶

THE COURT: The one thing I’m a little unclear about, so did you agree as part of these negotiation to go back to those two years for certain limited purposes, or not at all?¶

MR. BUTTS: Not at all, because it was never asked. We always started at 2000, and so 2000 —¶

THE COURT: That answers my question. So back to moving counsel.¶

MR. VILLACASTIN: I will say that our request for production to define a date period of 1998 through 2019, 1998 is not arbitrary. It’s our class definition of people who were abused from 1998 onward. There’s also the — it’s coterminous with the banking relationship between Jeffrey Epstein and JPMorgan.¶

Now, you know, he is talking — Mr. Butts is talking a lot about agreements. However, there was no clear agreement which is evidenced by the fact that both the USVI and Jane Doe¶

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filed motions to compel. I will note that there were side discussions between JPMorgan and USVI. I will direct the Court to docket 52-3, which reflects emails between February 8 and February 12. Generally, our position is that while we may have been backfilled on some of it, it was never our understanding that we were giving up two years. And I think if Mr. Butts is raising some sort of due process or procedural issue, I think he’s been on notice of our position, at least since February 23 when we filed our motion, and I do believe, even though I wasn’t on the call myself, that we did preview the issue when we called¶

THE COURT: All right. So I think that tells me what I need to know. And I will again resolve this brought by an Order issued no later than the end of next week.¶

MR. VILLACASTIN: Thank you, your Honor.¶

THE COURT: Now the next item is two motions that were raised telephonically. One I previously denied, but I think the other is still alive. And this is a motion of the Virgin Islands to compel JPMorgan to answer two of its interrogatories. The interrogatories are interrogatory number 3. Identify all consultants and investigators you retained to assist, assess, implement, test, or improve your BSA/AML compliance program.¶

And the second interrogatory, number four: Identify all individuals who served on board or staff committees¶

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involved in your BSA/AML compliance program, including, but not limited to, the compliance committee established pursuant to the consent order and the officer responsible for communications to the office of the comptroller of currency, and indicate the dates of their service.¶

And the Virgin Islands also I think has applied to compel compliance with certain subpoenas on “Topic 21.” And I asked for the description of Topic 21, and Topic 21 is “Your knowledge of Epstein’s sex trafficking scheme described in paragraphs 2033 of the Virgin Islands first amended complaint.”¶

Now, interrogatories under local rules of the Southern and Eastern Districts of New York — no, this rule is only a Southern District Rule 33.3(a).¶

“Unless otherwise ordered by the Court, interrogatories will be restricted to those seeking names of witnesses with information relevant to the subject matter of the action, the computation of each category of damage alleged in the existence, custodian location and general description of relevant documents.”¶

So these two interrogatories are apparently directed at finding out the names of witnesses with knowledge of information relevant to the subject matter of the action.¶

So let me find out whether there is still opposition to comply with those two interrogatories, and if so, on what basis?¶

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16 THE COURT: Go ahead.¶

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So this would be question to JPMorgan.¶

MR. BUTTS: Yes, your Honor, there is opposition. I don’t think this needs to take the amount of time that some of the other issues have taken, but —¶

MR. BUTTS: I’m sure. I am too, personally. But be that as it may, those interrogatories have nothing to do with Jeffrey Epstein. They are seeking over multiple decades anybody who had anything to do with something related to JPMorgan’s BSA/AML compliance program. We’re one of the we are the fifth largest financial institution in the world.¶

THE COURT: Just because of my ignorance, what do those initials stand for?¶

MR. BUTTS: The Bank Secrecy Act and Anti-Money Laundering.¶

MR. BUTTS: The only tangential tie of those issues to the U.S. Virgin Islands’ claim you heard about in some of the motion to dismiss argument falls one of the predicates or CICA is here what the effort to do is to under that CICA claim. And the — a federal felony, and make a failure to file a SAR a federal felony to be a CICA predicate. It’s conceded in the papers. Everybody agrees. The only way you get to federal felony standard with regard to a failure to file a SAR is a willful failure to file a SAR. Was there a willful failure to¶

file a SAR with regard to Jeffrey Epstein? Not, “How is your program? Could have been better here? Was it great here?” If I came in and said, “We’ve got the best program over here, but there was a problem with Jeffrey Epstein,” none of it matters. So our view is wildly overbroad, not relevant, and therefore not tied to the local rule.¶

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And on top of that, this is a high-burden exercise by dint of the time period and by dint of the breadth of JPMorgan.¶

Thank you.¶

THE COURT: Let me hear response.¶

: Yes, your Honor, so I think the request is relevant to both of the U.S. Virgin Islands claims in the case, both the TVPA and the CICA claim, including its bank secrecy act predicate. And your Honor asked what the acronym stands for the BSA/AML program at JPMorgan Chase was the program responsible for ensuring compliance with respect to Jeffrey Epstein’s accounts. So that is the compliance program that was at issue in this case.¶

THE COURT: Yes, but the — remember, this is an interrogatory, and it’s very broadly worded. You presumably are taking a 30(b)(6) witness and you might ask the 30(b)(6) witness to address how the program ran, and whether there were any special circumstances related to Mr. Epstein and so forth and that might generate rate a further request for documents or depositions. But here you’re just very broadly saying¶

identify — all of this as number 3. Identify all consultants and investigators you retained to assist, assess, implement, test or approve this overall compliance program over a period of many, many years. That seems to me overbroad.¶

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: So it is, your Honor, for the time period for the discovery, right, which for the Virgin Islands is 2006 through 2019, and there’s a particular context that is relevant here. So Jeffrey Epstein was a client of the bank, and although he continued to do business with them, he was a client until 2013. In 2013, JPMorgan Chase also entered into a consent order with the Office of the Comptroller of Currency, and that consent order acknowledged widespread failures in the BSA/AML compliance effort that are four-squared with the allegations of this complaint; that they were not only a failure to file SARs, which was why —¶

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THE COURT: Well, and if that’s a consent order, so of course, to the extent that’s relevant, it’s admissible on its face, right? It’s a statement of a party adversary.¶

So what do you need? Everyone who was involved for years with this program could find out, which I think is what you want to find out, which was, did those failures in particular relate to Mr. Epstein or in what way did they impact the failure of the bank to cease doing business with him or anything like that?¶

: And let me speak to the generalized particulars, if I may.¶

So in particular, the Office of Comptroller of Currency consent order had specific requirements that JPMorgan Chase first do a SAR look-back, Suspicious Activity Report look-back, from 2013 backwards, to examine its failure to file SARs. It also required separately an account and transactions look-back, to look back to see if there were any failures in compliance during that time period — again, the same time period that Mr. Epstein was a customer of the bank. So we think that process in the specific either touched or didn’t touch Epstein’s accounts and are relevant for either reason. Certainly, to the extent that JPMorgan Chase went back and looked — and I don’t want to run afoul of FinCEN requirements that talk about filing of SARs, but to the extent JPMorgan did not file a SAR, hypothetically, during that period, and looked¶

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back to figure out why that was, that’s directly relevant.¶

Same to financial transactions that showed cash payments, when¶

Epstein is an individual who trafficked in cash, quite¶

literally. He paid his victims and recruiters in cash and also¶

sent wire transactions, none of which, as our complaint¶

alleges, were picked up and reported, picked up and acted on,¶

in the context of due diligence. So there is an¶

Epstein-specific point. There is also —¶

THE COURT: Yes, but I don’t understand how receiving¶

from them, if I allowed these interrogatories, this endless¶

list of names will help you with respect to that particularized¶

argument. It sounds to me like something you want to put to a¶

30(¶

: And the issue there, your Honor, is that¶

JPMorgan has resisted any discovery related to its general¶

compliance program, its BSA/AML compliance program or the OCC¶

consent order. So that’s not going to get covered in the —¶

THE COURT: Well, let me ask you this. Where do¶

things stand on the 30(¶

: The 30(b)(6) is scheduled the first¶

day of it is scheduled for the 29th of this month.¶

THE COURT: And have you requested, as one of the¶

subject matters to be covered, information about how this¶

program worked and how it applied, if at all, to Mr. Epstein?¶

: We did, your Honor.¶

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THE COURT: And was that refused?¶

: Well, I don’t have the full state of play, and I apologize for that. I know that anything related to Mr. Epstein’s accounts specifically has been agreed to and is either being covered in the 30(b)(6) deposition with document productions or deposition upon written questions.¶

THE COURT: Here’s what I think. Well, let me ask JPMorgan, on the more —¶

MR. BUTTS: I can speak to a lot of those issues.¶

THE COURT: Okay. And we’ll come back to —¶

MR. BUTTS: There are substantial pieces of information that were — this is a 28-topic 30(b)(6). There’s one topic, apparently, that’s still at issue. We’ve resolved all of the other ones. Some of them are by document requests and some of them by interrogatories, and some of them by testimony. Some of the things that we are doing is providing budget and staffing levels for the BSA/AML compliance program; we’ve provided every BSA/AML policy over the 20-year period that’s at issue; we’ve provided training documents related to BSA/AML training; we are putting up a witness to talk about efforts with regard to combating sex trafficking. We’ve addressed Epstein six ways till Sunday. This is overkill through this 30(b)(6) and, frankly, all of the discovery everything counsel said in their argument was about Jeffrey Epstein. Nothing about Jeffrey Epstein is in those two¶

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interrogatories, and that’s the issue that we’re dealing with, but in the context of the 30(b)(6), we are providing them context plus.¶

THE COURT: All right. Let me go back to plaintiff’s counsel.¶

: So, your Honor, the broader point I also want to make — so with respect to the OCC order and identification of the individuals who conducted those look-backs, the SAR look-backs and the account and transaction look-backs, is relevant to understanding what they did and found with respect to Epstein and what they didn’t do or find with respect to Epstein. The OCC consent order also required that JPMorgan engage outside consultants to do a wholesale examination of its BSA —¶

THE COURT: Your interrogatories are not limited to that. The first one is not limited at all. The second one just says “including but not limited to,” and then mentions that one.¶

So here’s my ruling on this one. This one I don’t think I have to wait. The two interrogatories are quashed without prejudice to a more limited interrogatory being propounded if, after the 30(b)(6) witness or witnesses have testified, there is still information about who was involved in, for example, the compliance committee established pursuant to the consent order, so far as it bears on this case. I can’t¶

predict exactly how that would be framed. But the way they’re each currently framed, I think they are indeed overbroad. But this is not a permanent ban. This is just until after the 30(b)(6) witness testifies.¶

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: Understood, your Honor. And we will do that to the extent that there is still a need after the 30(b)(6) happens.¶

I would like to make, if I could, just one more general point on this issue.¶

: Which is that the general context of JPMorgan’s compliance with the OCC consent order and the effectiveness of its AML — its BSA/AML program is we believe a relevant issue in the case, and it has been a point of dispute throughout discovery, and in these interrogatories and the 30(b)(6) and requests for production, and all of the discovery requests that were teed up in this conversation, all relate to that same point. And it’s —¶

THE COURT: Well, you’ve indicated that. That’s what I’m here for. If you can’t reach agreement, you need to bring it to me and I’ll resolve it. I can only deal with what you bring to me.¶

: Understood, your Honor.¶

THE COURT: So Virgin Islands said that it wanted to compel compliance with subpoenas on topic 21, which is¶

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“knowledge of Epstein’s sex trafficking scheme described in paragraphs 20-33 of the government’s first amended complaint,” the government there being the government of the Virgin Islands. And what were the subpoenas that there’s opposition to compliance with?¶

So let me hear from the Virgin Islands on that.¶

: So this is — I think what your Honor is referring to is topic 21 and topic 27. So this was a topic and again, let me just give you some context. So there were 28 different topics. We had narrowed this down through a productive process of meeting and conferring. JPMorgan is producing a witness on eight of them; the rest — two we’ve withdrawn; the rest are being answered, as Mr. Butts said, by interrogatory responses or document productions in another six weeks. The two we couldn’t agree on are 21 and 27. 21, it’s my understanding that JPMorgan’s position is that we can figure that out from documents. But in fact, what JPMorgan Chase’s knowledge was of Epstein’s sex trafficking is a central issue in the case.¶

THE COURT: So this is topics for the 30(-¶

-: That’s correct, your Honor.¶

THE COURT: Okay. And I know what 21 is. What’s 27?¶

: 27 is in the same spirit of the interrogatories. So topic 27 is any government investigations¶

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and/or actions against JPMorgan related to its BSA/AML compliance program — that’s the one that has inter alia — the 2013 consent order with OCC, communications with the OCC leading up to the 2013 consent order, compliance with the 2013 consent order, and then a second action in the same time period, which may be familiar to your Honor, which is a 2014 deferred prosecution agreement in connection with Madoff investment securities, which involved the same BSA/AML compliance program.¶

THE COURT: So I want to hear from your adversary, but just looking at topic 21, it seems to be somewhat ambiguously worded because what it says is, “your knowledge,” meaning the bank’s knowledge, “of Epstein’s sex trafficking scheme described in paragraphs 20-33 of the government’s first amended complaint.” So there are at least two ambiguities there. For example, the first is, does that mean that if you have knowledge of anything alleged in paragraphs 20-33, that’s responsive to this topic? So for example, paragraph 20 is, “Jeffrey Epstein was a resident of the Virgin Islands.” So does the 30(b)(6) witness have to say, well, we knew that from the following 14 bases? That seems not a sensible way to proceed. A sensible way to proceed would be to supply the documents. Then the item Number 22 in the complaint is, “Epstein was a Tier 1 offender under Virgin Islands law based upon his fraud or conviction of procuring a minor for¶

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prostitution.” So does your topic mean that the 30(b)(6) witness has to find out whether anyone knew whether Epstein was a Tier 1 offender under Virgin Islands law? That seems certainly an overbearing requirement. And then knowledge is itself I think somewhat ambiguous. Normally when I see 30(b)(6) requests, they are more like, what information did you have about this? “Knowledge” is a more loaded term. So I have some question about that wording as well. But I think the overall thrust of this is a legitimate matter to be inquired into with the 30(b)(6) witness but I think it’s mostly probably directed at documents.¶

But let me hear from JPMorgan and then we’ll come back to plaintiff’s counsel.¶

: And I will tell you, your Honor, we did not mean to be metaphysical, and the paragraphs were meant to provide a frame for this, but those are certainly defects that can be cured. And they may be —¶

THE COURT: Well, there’s nothing like being metaphysical, especially at 7:45 p.m.¶

: It’s the only way to be at this hour.¶

And just perhaps to aid in JPMorgan’s response, the reason we asked for information or knowledge — and I do recognize the Court’s constructive reading on that. So if we revised this to “information,” the reason we ask is because there are things that are clearly reflected in documents —¶

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circulating news articles, due diligence reports, things like that. What isn’t reflected in the documents and we think is core to the case and is most efficiently discovered through a 30(b)(6) are the things that JPMorgan I don’t want to use the word “know” again — information it has from sources that don’t necessarily get reflected in documents.¶

So we know, for instance, that numerous JPMorgan employees went to Jeffrey Epstein’s townhome, which is notorious for its artwork, naked pictures, massage rooms, etc. We know that JPMorgan, in various documents, talked about checking news sources and complaints, and the level of investigation that we think was appropriate. That kind of investigation would not necessarily be reflected in the documents.¶

THE COURT: Okay. So let me hear from —¶

MR. BUTTS: Your Honor, this is being dealt with in documents. It’s being dealt with in a number of depositions. One of — there are many challenges with this and, to use word, this is a metaphysical interrogatory, and I read it differently than apparently she meant the thrust of it to be, and that’s half the problem.¶

The other parts of the problem are all of the embedded legal language in there. And let’s start with “your knowledge.” You just heard lots of argument about what the company’s knowledge is and what Mr. Staley knows and in what¶

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context and to what extent that is —¶

THE COURT: No, I totally agree. I think if nothing else, this has to be reframed, because “knowledge” is a loaded term in the context of this case.¶

MR. BUTTS: On top of that, I submitted to Mr. Kern the full list of the embedded allegations from the complaint, paragraphs 20-23 of the complaint, and some of the things that they’re asking for knowledge about are the government’s — the Virgin Islands’s lawsuit against Jeffrey Epstein’s estate and related individuals for violation of CICO and civil conspiracy, which is recently settled, and Epstein-created network of individuals who participated directly and indirectly and conspired with him in a pattern of criminal activity, so on and so forth. And paragraph 27, an illicit enterprise of Epstein businesses and associated constituting what’s referred to as “the Epstein Enterprise,” listing a number of companies. There’s issues in here too about associations-in-fact. And all of those issues are legal in nature. They’re disputed. And that’s why I come back to a JPMorgan case that you decided, JPMorgan v. Liberty Mutual, where, to your point about information, 30(b)(6)s are designed to learn facts, not legal contentions and legal theories.¶

THE COURT: Yes, I agree with all of that, but also, I think what I got from what plaintiff’s counsel was just telling me is they think there is information that is not in¶

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documentary form that is relevant, nevertheless, to their case, and therefore a 30(b)(6) witness is the ideal witness to identify what information JPMorgan collectively had.¶

So I think that, as presently worded, I’m going to strike topic 21 and 27, but I think before the 30(b)(6) witness testifies, these can be reworded in a much more narrow fashion in ways that probably the Court will approve.¶

MR. BUTTS: A different topic would be a different discussion. The parties — we’ve acted reasonably. I think, you know, 28 requests and you’re hearing about two of them —¶

THE COURT: I’m all for working it out. It sounds like everyone’s proceeding in good faith. But I make it very easy. I call my system the “dial-a-judge” system because if you can’t work it out, all you need to do is get on the phone and I’ll work it out for you.¶

So I’m sustaining the objection to topic 21 and 27 as currently worded, but before the 30(b)(6) witness testifies, plaintiff’s counsel can propound new narrower topics. 28 is a funny number, where 30 would be so much more satisfying.¶

MR. BUTTS: Or 10.¶

THE COURT: And then if you can’t work it out, you’ll call me, and I’m here and ready to decide.¶

MR. BUTTS: Yes. We were hoping that Mr. Kern had some time to do some other work apart from this case. The one thing I will say, we’ll work it out. We’ve had success in that¶

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regard, albeit success through a number of pointed conversations.¶

THE COURT: Yes. Let me just repeat. What I do think should be provided is stuff related to information that was available to JPMorgan regarding Mr. Epstein’s sex trafficking or similar conduct that is not reflected in documents.¶

MR. BUTTS: We can do that, your Honor. The one thing I would say — you tied it to the upcoming deposition.¶

THE COURT: II, you’re right. You’re going to have that —¶

MR. BUTTS: It may be a different designee, so the parties —¶

THE COURT: That’s fine. You’ll just work it out. That’s fine.¶

MR. BUTTS: And your Honor, on that vein, could I ask you to come back to a scheduling question. I know you’re probably getting to the end of your agenda. I just want to make sure I leave here with —¶

THE COURT: I’m here till midnight if you want.¶

MR. BUTTS: Yeah. So the direction at the start of the day was shift in trial date, the parties should come back to you with a revised case management plan, and somebody’s written down the date we’re supposed to do that. What I want to make sure is there are deadlines, including one today, that we think ought to be part of that. It’s tied to — directly¶

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related to the EDCP issue.¶

THE COURT: Put in anything you think is relevant. So you’re not limited to the topics presently in the case management plan, if you think there are other topics that ought properly to be part of the case management plan.¶

MR. BUTTS: And it’s the service of an expert report, so we would not be serving it tonight.¶

THE COURT: Yes. All current deadlines are suspended till I get the new schedule.¶

MR. BUTTS: Thank you, your Honor.¶

MR. HENNES: Including the Deutsche Bank case.¶

MR. HENNES: Thank you, your Honor.¶

THE COURT: All right. So originally I was going to end this proceeding at 8 because my wife and I were going dancing at 8:30, which is our hobby, but she let me know earlier today that unfortunately she slightly injured her toe, and strangely enough, it wasn’t for the usual reason, which is my stepping on it. So I do have time for more if there’s anything else. But if you don’t have anything else, then, reluctantly — ah, we have a taker.¶

MR. TODRES: Yes. Andrew Todres for Deutsche Bank. We can deal with this in two minutes, I think. I tried to raise it earlier but we were told to try to raise it here if we could.¶

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THE COURT: Okay.¶

MR. TODRES: So we have an issue in our case concerning the productions that we’ve been receiving from plaintiff in the document collection in the case. In particular, we have now on two occasions determined that the plaintiff’s counsel has not collected email for multiple email accounts for plaintiff that we know have highly relevant responsive documents to our document requests. Originally, at the outset of this matter, they told us that she had been locked out of an email account that they were regaining access to and that they would produce documents from it. After initial production that contained only printouts from that email account, they represented that the production was complete.¶

Subsequent to our negotiation, they did agree to begin searching that email account for some documents from it. However, in the course of that document production, we learned that she had — Jane Doe had an additional email account that we raised to the attention of plaintiff’s counsel and said there appears to be another account here that you need to collect and produce documents from. And we said that despite their having previously represented that they were not aware of an additional account. So they then began to produce documents from that additional account.¶

Then just today, literally an hour before we came¶

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here, we received a production from a third party in response to a third-party subpoena that identified yet another email account belonging to the Jane Doe that we had no idea existed despite, again, numerous representations by plaintiff’s counsel that they had given us all of — or collected all the email from Jane Doe’s email accounts. So as a threshold matter, your Honor —¶

THE COURT: Let me stop you right there.¶

Let me hear from counsel on that.¶

MR. VALLACASTIN: Good evening, your Honor.¶

We’re trying our best. Certainly when we represent —¶

THE COURT: As all judges, I rely on counsel to cross-examine their own clients. The clients, being, of their nature, very protective in a litigation context, are often not as forthcoming with their lawyers as they should be, even though, of course, what they say is protected by privilege. But my experience is, notwithstanding privilege, clients tend to not provide all the information that counsel needs to be responsive to their adversaries and the Court, except upon heavy pressure from the lawyers. So it sounds like you really need to push Jane Doe. Did you ask her for her emails, or did she only say, all I’ve got is one and I’ve been locked out or whatever and not reveal the other two?¶

MR. VALLACASTIN: Yes, that’s correct, your Honor. So we have —¶

THE COURT: Have you now asked her about the other two?¶

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MR. VALLACASTIN: We’ve asked several times and she’s confirmed all three —¶

THE COURT: What does she say?¶

MR. VALLACASTIN: She only recalled the gmail one first; the second account is an iCloud account, which I think a lot of people here don’t realize that they have because it’s, you know, just a function of having —¶

THE COURT: So it may have been an innocent mistake. But when you’re questioning her, you need to say, and by the way, do you have an iCloud account, do you have this, do you have that? And really push her hard. I’m sure you know that. I don’t mean to be preachy about this. It’s just that in case after case, I’ve seen situations where, precisely because of the close relationship between a lawyer and his or her clients, the tight, tough questioning has not occurred. So I encourage you to do that and supply, obviously, the results to your adversary.¶

MR. VALLACASTIN: Yes, your Honor. I appreciate that.¶

THE COURT: Very good.¶

MR. TODRES: And your Honor, to that point, the second issue does relate to results. So we do not believe that there has been a reasonable search conducted of the email that has been collected, setting aside the email that has not been¶

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collected. Originally plaintiff’s counsel proposed to use a sum total of 11 search terms to search plaintiff’s email, three of which were actually terms related to JPMorgan that had, as far as we know, nothing to do with our case, and over the course of discussions, we asked — we did the work for them and prepared, to the best of our ability, search terms for them to run. And I should add that of those 11 search terms, they didn’t include, for instance, the word “Jeff,” as in Jeffrey Epstein, they didn’t include “Maxwell,” they didn’t include any of the co-conspirators save for a few exceptions that are identified in plaintiff’s complaint, and I think your Honor should be aware that what we have learned so far in this case is that plaintiff had thousands of communications with Jeffrey Epstein, was part of his inner circle, and had very regular communications with numerous people in the complaint identified as co-conspirators. So these are issues that are not only important as to merits but vital as to class certification.¶

MR. TODRES: So as a result, we proposed a number of additional search terms and said to them that we expected in good faith that they would run standard variations on the search terms. So for instance, if you run the search term for the name Jean-Luc Brunel, who is an individual identified in the complaint as having assisted in Epstein’s¶

THE COURT: No, no, no. I think it’s your job to give¶

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them all the terms you want, and I don’t think you can rely on them to say, you asked for Jeffrey and we also have to do Jeff. You have to say you want Jeff. But once you say that, if they improperly refuse, of course, come to me, because they’d be in deep trouble.¶

MR. TODRES: Well, they have now — we have, since this discussion, have provided them with a more fulsome list of terms.¶

THE COURT: Okay.¶

MR. TODRES: And we would ask — we have not received a commitment that they are going to run and produce results of those terms, which we find particularly troubling.¶

THE COURT: Well, let’s deal with that.¶

MR. VALLACASTIN: Your Honor, with apologies again, things are moving really fast in this case. My update for you is we have reviewed every document hitting the terms that Mr. Todres provided us yesterday, as well as on March 1st. In total, just so the Court is aware, there are 408 search terms. We have produced all but 10, which, you know, I have an email that I have to respond to to release, either today or tomorrow, depending on whether we can access the new email address —¶

THE COURT: So if I understand what you’re saying, you’re not objecting to the new terms; it’s just you’re working your way through it.¶

MR. VALLACASTIN: We are almost finished, your Honor.¶

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It’s the new email address that we have to run the terms. Just to explain our approach in the beginning, it’s not the number of terms, not to get into the details of e-discovery —¶

THE COURT: It sounds to me like I’m glad we had this discussion, but I think things are moving in the right direction. I will just say this, so you’re all aware of it. If the case goes to trial or to an evidentiary hearing on some prior motion and I learn that a party has not produced a document that is reasonably within any fair reading of what they agreed to produce, I will impose sanctions. And you won’t like the sanctions. The sanctions could be things like striking your case. So be aware of that consequence. But sounds like everything is proceeding favorably and so I don’t think there’s anything I need to rule on tonight.¶

MR. : Your Honor, in the spirit of saving the most important issue for last, we have requested and had many telephone calls about the SARs that were filed by JPMorgan or Deutsche Bank, the timing of them, and we are told — at least I’m under the impression there’s no objection to turning them over but they’re just not permitted to turn them over without the permission of FinCEN, the regulatory agency, to produce the SARs.¶

THE COURT: I think unless someone tells me I’m wrong, I think this Court has the power to override that, and I just now decided I will.¶

4 THE COURT: You don’t think I have that power?¶

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7 THE COURT: This is FINRA?¶

8 MR. : FinCEN.¶

9 MR. BUTTS: FinCEN.¶

10 11 12 13 14 15 16 17 18 19 20 THE COURT: FinCEN. Yeah. So this will be really fun. Explain to them that if they still object to your turning those over, that we will conduct a hearing in my court, that they must appear in person, at a time and place set by the Court but no later than next week, and I will want present not only a lawyer but a decision-maker, if necessary, the highest decision-maker, to explain why they haven’t consented, if they haven’t, and if that person is not willing to appear, then I’ll have no choice but to ask the U.S. Marshals to arrest that person and bring them before me for that hearing. So they may want to consent. But just a thought.¶

21 MR. BUTTS: We’ll deliver that message.¶

22 MR. : Thank you, your Honor.¶

23 24 25 : Your Honor, related to that, the U.S. Virgin Islands has previously been authorized to receive this information but there has been a holdup in getting an¶

MR. : Thank you, your Honor. Yes.¶

MR. BUTTS: Respectfully, your Honor, I don’t think that’s right.¶

MR. BUTTS: It’s a statutory obligation and so I fear of being put in the betwixt and —¶

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authorization for us in this litigation, so we’d ask that that be included within the frame of what FinCEN has to —¶

THE COURT: Yes. Even though I beat the drums there, my experience is from prior cases that the government, once they know the situation, will be very happy to comply, and I can’t imagine that they would not comply, but if they can’t and don’t want to — and I’m not sure, by the way, that I don’t have the power to overrule that, but it will be an interesting question. The Supreme Court has so few good issues this day, that will be another one for them.¶

MR. : Your Honor, in the interim, the problems that this has caused, I’m hoping we can alleviate that as well. For instance, there’s telephone discussions where we, the Does, have to jump off the calls so these BSA matters could be discussed; depositions, including the Erdoe deposition yesterday, when we had to leave the room so that certain questions could be asked and we were not able to hear those things. There’s a deposition set for Jeff Staley next week. I would just ask that there isn’t a circumstance where we’re kicked out of the room any longer.¶

THE COURT: So there again, here’s how I handle that. When that situation comes up in a deposition, you should jointly call me, right there, from the deposition. And if I’m not on the bench, I’ll hear you right then and there. If I am on the bench, my clerk will inform you to call back in the next¶

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break in whatever I’m doing on the bench, and so I’ll resolve it. It always makes much more sense to resolve those things right then and there rather than, you know, waiting for later.¶

MR. : Thank you, your Honor. I appreciate it.¶

MR. TODRES: And your Honor, I just have one more issue to address from our prior discussion.¶

MR. TODRES: We had asked for medical releases in respect of the medical records for our Jane Doe. We’ve asked for them dating back to — I don’t know — probably a month ago now, and the third party that we received documents from today actually had a document production ready to go to us last week, and they said the only reason they couldn’t make it was because they had not obtained the release from plaintiff. And so we have seen unexplained delay in providing us documents that, again, we believe are critical to not only merits issues but class certification issues, and we’d ask that plaintiffs be required, as they committed to do, to provide all medical records and releases as soon as possible because we cannot afford this repeated delay.¶

THE COURT: Any problem?¶

: No, your Honor.¶

THE COURT: All right. Well, this was fun. Anything else?¶

Well, if there is nothing else, I notice that most of¶

the audience has wimped out long ago, but there are a few stragglers still here. So in all seriousness, I thank all of you for this very helpful conference.¶

ALL COUNSEL: Thank you, your Honor.¶

o0o¶