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UNITED STATES DISTRICT COURT¶
SOUTHERN DISTRICT OF NEW YORK¶
15 Civ. 7433 (RWS)¶
GHISLAINE MAXWELL,¶
Defendant.¶
New York, N.Y.¶
April 21, 2016¶
11:05 a.m.¶
Before:¶
District Judge¶
APPEARANCES¶
HON. ROBERT W. SWEET,¶
BOIES, SCHILLER & FLEXNER LLP¶
Attorneys for PlaintiffBY: SIGRID STONE McCAWLEY¶
-and-FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L.¶
BY: BRAD EDWARDS¶
-and-PAUL G. CASSELL¶
HADDON, MORGAN & FOREMAN¶
Attorneys for Defendant¶
BY: LAURA A. MENNINGER¶
JEFF PAGLUICA¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
(212) 805-0300¶
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(Case called)¶
THE COURT: Welcome back. I have read the papers. Who knows. I might have missed something, but I think I’ve got it fairly well under control. I would be pleased to hear anything anybody wants to tell me in addition to what you’ve already given me.¶
MS. McCAWLEY: Your Honor, this is Sigrid McCawley. I would like to start, if it’s convenient with the Court, with the pro hac vice motions that are pending because we would like counsel to be able to anticipate in these proceedings. Would that be all right if I started with that?¶
THE COURT: I don’t care.¶
MS. McCAWLEY: Thank you. Your Honor, you have before you two pro hac vice motions. My client, would like to have counsel of record in the case be added as Professor Paul Cassell and Brad Edwards. We have presented those pro hacs to your Honor. This is the first time in my years of practice that I’ve had a contested one, so I’ve looked at the case law surrounding that and I think it is very clear that a client is entitled to counsel of choice in a case.¶
In this matter she has selected these lawyers. They have been working with her. They had been working on this matter for many months now. We need them as counsel of record in the case now because we are going to have depositions throughout the country where, for example, Professor Cassell is¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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in Utah. He will be able to handle the Colorado depositions and things of that nature. We are here because those pro hac vice motions are being contested. The core piece of that is the argument that they should not be allowed to seek confidential information in this case.¶
Your Honor will remember that I was before you a couple of weeks ago again trying to get the deposition of the defendant, which is set for tomorrow, but still hasn’t occurred yet. And in order to expedite that process I agreed to the protective order that was put in front of the Court and I waived all of my objections to that in order to be able to facilitate and move that deposition forward. That protective order provides that attorneys who are actively working on the case can receive confidential material.¶
My opposing counsel has interpreted that to mean that that must be a counsel of record in the case. We disagree with that interpretation. I wouldn’t have agreed to a protective order knowing that they were already working on the case. If that were the situation, as your Honor can understand in this case, the majority of the material has been marked confidential, so it would prohibit my cocounsel from working on behalf of their client.¶
Your Honor, I’m here to request on behalf of my client, that she be entitled to have her counsel of record of choice in this matter. If your Honor will¶
DISTRICT REPORTERS, P.C.¶
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indulge me, I would like Mr. Cassell to address his pro hac motion, please.¶
MR. CASSELL: Good morning, your Honor, Paul Cassell.¶
I’m a law professor.¶
THE COURT: I don’t want to hear it. Sorry. No.¶
Thanks very much.¶
MR. CASSELL: Thank you, your Honor.¶
THE COURT: Anything from the defense.¶
MR. PAGLIUCA: Yes, your Honor. Jeff Pagliuca on behalf of Ms. Maxwell.¶
Your Honor, I have never opposed a pro hac motion in my 34 years of practice, so this is a first for me. But it is clear, your Honor, that these lawyers will be witnesses in this case.¶
THE COURT: This we don’t know. I can’t make that determination now. Anything else?¶
MR. PAGLIUCA: Yes.¶
THE COURT: You may be totally right, but I don’t know.¶
MR. PAGLIUCA: Your Honor, here is the problem. This case is about the plaintiff’s false allegations.¶
THE COURT: Yes. I think I picked up on that.¶
MR. PAGLIUCA: These are the lawyers that wrote the false allegations.¶
THE COURT: I think I picked up on that, too.¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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MR. PAGLIUCA: These are the lawyers that admitted that these were false allegations.¶
THE COURT: I know. I don’t have to tell you, you know, there is going to be all kinds of privilege issues, all kinds of issues about whether or not they have to testify. We are not at that stage. I cannot and I will not decide that now.¶
What else?¶
MR. PAGLIUCA: There is a problem with the sharing of confidential information with these lawyers. These lawyers have both personal and professional interests.¶
THE COURT: I understand that. I get that point.¶
Anything else?¶
MR. PAGLIUCA: No, your Honor.¶
THE COURT: This is what we will do on the pro hac. Everybody agrees, nobody, maybe in the world, but nobody in this courtroom, including me, has dealt with this kind of problem before. That’s perhaps only one of a number of issues that are unique about this case. That’s neither here nor there. Clearly, the plaintiff has the right to consult with any lawyer she chooses. However, the materials here are sensitive. I don’t know the extent to which they have been designated confidential, but I’m quite sure that a substantial number of them have been, by the very nature of the case, I guess. Let me put it this way. I want to be sure that we¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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enforce the confidentiality appropriately.¶
Now, with those preliminary thoughts in mind I am going to deny the motion at this time because I know that there is a statement, some kind of a statement from the mediator in the Florida action. When I get a piece of paper that says the Florida action is dismissed, a court order or whatever, then this motion can be renewed.¶
Also, I want an affidavit from the two lawyers that there is no matter in which they are personally involved, that they are making no claim, there is no claims, there is no litigation in which they are involved. The reason I say that is that I would not grant the application for a pro hac status to a party in this or a related litigation. If I get those affidavits and the statement about the closure of the Florida case in which they are a party, then the application can be renewed and at that point I would be probably inclined, unless something else comes up or unless the defense tells me something that I don’t now know, I would grant the application that brings us to the order itself and the meaning of the order. I think active in the litigation is the key phrase. The plaintiff has listed the people that she considers would be appropriate and it’s these two gentleman and I think one other person, and that’s fine. That is the definition.¶
However, I’m also going to ask the parties to agree upon an order that would expand the confidentiality agreement¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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to this extent, to require the plaintiff to indicate to me and to the defense if there is anyone else who is going to be active in the litigation. I’ll tell you why I feel this way. I want to be sure that we can enforce the confidential aspect of that agreement, and I think that could be critical down the line. That’s the reason for those requests.¶
Now, we also have a motion to compel.¶
MS. McCAWLEY: Your Honor, can I just get clarification very quickly because I don’t want to have to come back to the court so I want to make sure I’m following correctly. Your ruling, because we have a deposition tomorrow that counsel was going to be assisting me with, particularly on the Fifth Amendment —¶
THE COURT: Can’t have access unless I get these materials by then. If I do, that’s something else. If I do, fine. Otherwise, they can’t have access to the confidential data. They can assist.¶
MS. McCAWLEY: Can I just point something out to the Court as well.¶
THE COURT: The plaintiff can have any lawyer she wants. The question is the confidential materials.¶
MS. McCAWLEY: Can I just point the Court to one more issue, because this is their protective order. They now said to the Court that these two individuals are witnesses or potential witnesses. The protective order allows in Section G¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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confidential material to go to deponents, witnesses or potential witnesses.¶
THE COURT: That’s a different issue. I have not dealt with that. Obviously anybody who is a witness may have access to the confidential material, because they have to buy into the confidentiality order in order to do that. But they are outside of it at the moment.¶
MS. McCAWLEY: Your ruling is, they cannot attend the deposition tomorrow?¶
THE COURT: They can. Anybody can attend the deposition that anybody wants to have, but they can’t participate in it. They can’t have access to the confidential material until we get this matter straightened out. Ok.¶
MS. McCAWLEY: I understand, your Honor.¶
MR. PAGLIUCA: Your Honor, we will be designating the testimony as confidential.¶
THE COURT: You see. There you go. That’s life. I can’t believe that this entire testimony is going to be confidential. Honestly, you all are too much. Ok. If that’s what you do, you know that’s not going to work because not all of this stuff at issue is going be to confidential. No, no way. What is your name? Ok. We will deal with tomorrow’s problem tomorrow.¶
MR. PAGLIUCA: Ok, your Honor.¶
THE COURT: The compel. Anybody want to add anything¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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on that?¶
MS. MENNINGER: Yes, your Honor. Laura Menninger on behalf of Ms. Maxwell. I have taken the liberty, your Honor, of just making a very short little cheat sheet of the outstanding issues, if I may approach.¶
THE COURT: Yes. It will be interesting to see if yours is the same as the one we have prepared. Yours is much longer than ours.¶
MS. MENNINGER: Your Honor, I’m happy to address all of the ones on mine. I certainly am also happy to take direction from the Court regarding issues that you believe to still be of more interest.¶
THE COURT: As I say, I’ve read your papers. I would be pleased to hear anything you want to add that you think is not covered or you want to respond or anything like that.¶
MS. MENNINGER: Your Honor, one of the largest and most significant pieces to us are the assertions by plaintiff that her own communications with law enforcement are somehow protected by —¶
THE COURT: I’m prepared to deal with that.¶
MS. MENNINGER: The second one, your Honor, and it relates somewhat to the issues already presented on the pro hac motions, are our requests for the fee agreements with all of plaintiff’s various 15 or so lawyers who purport to be representing her. Your Honor. I can find no case law that¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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suggests that the agreements are privileged, as plaintiff argues. She has refused to identify when these individuals began their representations, the nature of the representations.¶
THE COURT: There is a little confusion here, at least in my mind, as to what we are talking about. I certainly understand the two gentlemen whose applications I have just dealt with and the third person, who I take it is affiliated with the Boies firm.¶
Obviously, over time the plaintiff has probably conferred with other lawyers. But who cares? Let’s assume she has talked to 20 more lawyers. You want all those retainers? That doesn’t make any sense. What is the universe we are talking about?¶
MS. MENNINGER: Your Honor, I certainly understand all of the members of the Boies firm that currently represent her. The third individual, if I understand correctly, is a gentleman by the name of Stan Pottinger. He is a lawyer of some renown. He is also an author of best-selling books. He is listed quite frequently on plaintiff’s privilege log as being part and parcel of advice being given to her on, quote/unquote, media issues.¶
THE COURT: That is one.¶
MS. MENNINGER: Your Honor, there are other persons listed on their privilege log. Many are listed as counsel for plaintiff, but others are listed. Attorney giving advice to SOUTHERN DISTRICT REPORTERS, P.C.¶
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victim’s —¶
THE COURT: Is what you want the retainer agreements, if there are any, whatever the arrangements are, with anybody on the privilege log that is listed as rendering advice?¶
MS. MENNINGER: Yes, your Honor. That, I think, would be appropriate because some of our biggest issues concern the privilege log.¶
THE COURT: I understand.¶
What else?¶
MS. MENNINGER: Your Honor, we have asked for, but been denied by plaintiff, her own deposition testimony in the Florida action. In that case the Court entered a confidential order —¶
THE COURT: I’m prepared to deal with it.¶
MS. MENNINGER: Your Honor, the next topic are plaintiff’s medical records.¶
THE COURT: I think I understand that. There is one thing, though. Are there any pre-‘99 medical records?¶
MS. MENNINGER: Your Honor, the case law is quite clear that injuries that were preexisting —¶
THE COURT: I’m sorry. Excuse me. Go ahead.¶
MS. MENNINGER: Plaintiff has alleged that the defamation of this action triggered or caused her to reflect back upon her alleged sexual abuse. She has also alleged, for example, that many, several, three, I think, at last count, or¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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four individuals had sexually abused her prior to ever meeting Mr. Epstein.¶
If she has evidence that she already was suffering from depression or some type of mental health disorder before meeting our client, Ms. Maxwell, or Mr. Epstein, then her flashbacks, if you will, could be related to other incidents that she has put out in the press. And she, I believe, has also told the press that she was in a drug rehabilitation facility at the time that she met Mr. Epstein.¶
Obviously, to the extent she was under the influence of drugs, which is what she has told the press, at the time she met him, she persisted in being addicted to drugs during the time that she knew Mr. Epstein, and it certainly relates to all of her requests for, I believe she has requested $30 million in damages, your Honor, not just from the defamation, but also harkening back to what she claims were her years as a sex abuse victim.¶
THE COURT: What’s the basis of your statement that we will call it the flashback?¶
MS. MENNINGER: Your Honor, I believe —¶
THE COURT: Because, quite frankly, I was unaware of that. Is that my error? Are you telling me something that’s not quite right?¶
MS. MENNINGER: Your Honor, I believe that is what plaintiff has alleged in her complaint. If you can give me a¶
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moment. To the extent she is now alleging she suffers from emotional distress from any preexisting —¶
THE COURT: That’s from the defamation.¶
MS. MENNINGER: She claims it’s from the defamation. However, your Honor, if she has preexisting conditions that were truly the cause of whatever emotional injury she claims that she now possesses —¶
THE COURT: Correct me if I’m wrong, and perhaps plaintiff will make it clear, my understanding is that the injuries alleged result from the claim of the alleged defamation, period.¶
MS. MENNINGER: Your Honor, she has claimed emotional distress from the defamation, yes. We are requesting evidence that would show that she has preexisting emotional conditions.¶
THE COURT: Not from the defamation.¶
MS. MENNINGER: Not from the defamation. From the many, many other things that have occurred in her life predating even her meeting Mr. Epstein and Ms. Maxwell, as she has told the press, not because we told the press that.¶
Your Honor, it is difficult, if not impossible, to address her claimed $30 million emotional distress from a defamation statement that was a denial of her allegations versus any emotional distress or emotional conditions she already had before any such statement was made.¶
Similarly, your Honor, we have asked for discovery of¶
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her claimed prior sexual abuse. She has, again, put in the press a number of statements regarding that, and I can’t imagine that it is to the extent she claims privacy now, those might be relevant in our case both on credibility and also damage issues.¶
Your Honor, we have asked for a lot of other interrogatories and documents that go to her damage claims, her education records, her work history. She has refused to answer any questions before where she has worked. She has refused to answer any questions about where she went to school. All of these are appropriate under the local rule for interrogatories.¶
Finally, your Honor, we have asked for her contracts with media. She has refused to disclose those. She has refused to disclose her tax returns that show all of the payments that she has received from various media sources.¶
THE COURT: I take it your view of any funds from the media would operate to reduce her damages.¶
MS. MENNINGER: Your Honor, it also shows her motive and bias in bringing this case. To the extent she has been paid for her stories to the media, which she has, she has admitted that she has been paid hundreds of thousands of dollars for giving these stories to the media.¶
But to the extent that she is now bringing this defamation claim, if she is still either planning to receive more money from the media, she has a motive and bias to make¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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her story consistent with her previous stories. She has claimed $5 million in lost wages, your Honor. This is a person who has worked primarily as a waitress in the last 15 years, until her media sensational story was purchased from her by some British press.¶
THE COURT: Anything else?¶
MS. MENNINGER: Your Honor, the other issues are addressed in our papers. We have highlighted her incomplete production on several fronts and her refusal to answer any interrogatories. So I would rest on my papers with respect to the other arguments. Thank you.¶
MS. McCAWLEY: Thank you, your Honor. I’d like to be very clear here, your Honor. Discovery production, I’ve tried to do that in our papers. But listening to opposing counsel I’m concerned maybe she hasn’t reviewed the documents we have produced. We have clearly produced all of the media communications she has, including records —¶
THE COURT: All the media.¶
MS. McCAWLEY: All of the media communications. She has issued wildly broad requests in this case which we have complied with. We ran over 200 search terms. Her request No. 5 alone seeks communications with over 100 individuals. And we have complied, your Honor. This is coming from the defendant who until Monday night, when you directed her to produce privileged information, has only produced two e-mails in this¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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case.¶
Your Honor, we have complied with our production. We have produced the materials that she is saying we have not produced. It’s incorrect. We have produced her school records that we have. We have produced her tax records that we have. We have produced all of those items that we have.¶
With respect to her medical records I am going to direct you to the case that is cited in our brief as the Evanko case and it was a similar circumstance to here. It was a Title VII case where there were emotional distress damages being alleged and the Court found that the other side could not have carte blanche ruling over all of her medical records from the time she was born to the present. We met and conferred on two hours on their discovery requests, your Honor. We agreed to produce all of her medical records that we had from 1999 to 2002 and anything else we had that was related to the sexual abuse she endured at the hands of the defendant and Mr. Epstein. We have agreed to produce those.¶
We have already started producing those records from the various doctors, from the treating physicians. Those are in their production. Should they be entitled to things that happened prior to that? Absolutely not, your Honor. They are not entitled to a full-scale production of everything that’s happened in this young lady’s life. She was abused by these individuals. She shouldn’t be reabused by having to disclose SOUTHERM DISTRICT REPORTERS, P.C.¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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things that happened prior to her time with them. Your Honor, we do object to the production of that material.¶
THE COURT: The flashback allegation.¶
MS. McCAWLEY: I think what she may be referring to, I have not heard that term used, I think what she may be referring to was the fact that this is a defamation claim and the person who defamed my client was also an abuser, we allege. So when she is defamed by the person who abused her and that abuser is calling her a liar, that caused her significant emotional distress. It’s different than if some other individual that she had not had contact with called her a liar. When she is talking about a flashback, maybe that’s what she is referring to, but we don’t have the word flashback anywhere in our complaint.¶
THE COURT: No. I made that up.¶
There will be no claim by the plaintiff that the defamation caused her distress by making her aware or as a result of the prior sexual abuse.¶
MS. McCAWLEY: The sexual abuse by the defendants?¶
THE COURT: No.¶
MS. McCAWLEY: Sexual abuse by others.¶
THE COURT: Yes.¶
MS. McCAWLEY: No. Sexual abuse that relates to the Epstein period, yes.¶
THE COURT: That I understand.¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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MS. McCAWLEY: I think we are on the same page.¶
THE COURT: I think talking about the earlier period.¶
MS. McCAWLEY: Prior to Epstein, no, no, she doesn’t have a claim with respect to that.¶
THE COURT: Anything else?¶
MS. McCAWLEY: Your Honor, I just want to point out again that our production — you asked us to complete that. We have gone through and run over 200 search terms. We have produced all of those communications she has had with all of those individuals. The things that we have not produced are the criminal investigation records. I know your Honor is going to address that. I would like to be very clear there.¶
The point there is that she has said in the motion to stay papers that she filed Tuesday that she needs to have that information so she can decide whether she is going to be asserting her Fifth Amendment privilege. Truthful testimony shouldn’t have to be crafted, your Honor. She shouldn’t need to know what agency is investigating her in order to decide whether or not she is going to be asserting her Fifth Amendment privilege.¶
We do have with us, your Honor, for an in camera submission, if you would like it. That is the way that courts have dealt with this issue in the past. When there is a claim from an agency that the disclosure of that investigation could harm the investigation, we can submit that to you for in camera¶
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review so you are aware of the ongoing investigation. But it is my view that that needs to be protected.¶
As you probably know, the history of these cases with Mr. Epstein, there were a variety of things that went on in that investigation, so there is reason to keep an investigation in this situation protected so that they can properly investigate and move forward with that without being inhibited by other individuals. Your Honor, I would ask that that remain protected. It’s covered by her very, very broad requests, which is why we had to lodge those objections. I would appreciate your Honor considering our arguments with respect to that issue.¶
The other things, your Honor, that she has raised is, for example, she had asked for the Epstein settlement agreement and that was one of the things that she asked for. We agreed to produce that if we got the waiver from Mr. Epstein because we can’t produce it without that waiver.¶
I believe that covers it, your Honor. If you have any questions, I would be happy to answer them.¶
THE COURT: Thanks very much.¶
Thank you all for all the clarification that you’ve given me. I much appreciate it.¶
With respect to the retainers and the dates of representation, that information will be provided for any attorney that’s listed on the privilege log.¶
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The plaintiff has told me that they have now supplied all the education and employment records that they have. I think if there is any question about that, if the defense is skeptical, I would ask the counsel for the plaintiffs to make that statement on the record, not necessarily here, but by way of a statement to the Court and principally to the defendant.¶
On the question of residences, that’s, in my view, not a contention interrogatory because of the nature of this case. I think it’s more like listing witnesses. So I would say that the plaintiff should supply all residences.¶
The Dershowitz deposition will be produced under the confidentiality provision. As I read what I’ve been given, it’s to be held in confidence and it will remain in confidence, but it will be produced.¶
Yes, the tax returns should be produced. 15 years seems like — I see. Ok. 15 years.¶
The medical records of the period ‘99 to 2002 will be produced and the plaintiff will indicate whether that production is complete or, if it isn’t complete, when it will be complete.¶
As for the pre-‘99 medical records, based on where we are at the moment, I do not believe that those are relevant. Because the damage issue relates, in my view, solely to the defamation. If that changes in any way, I will revisit that issue.¶
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The criminal investigation. Any materials that the plaintiff has with respect to any criminal investigations will be turned over except for any statements made by the plaintiff to law enforcement authority and those statements, if there are such, will be submitted in camera, and I will review them.¶
I hope that clears up our problems. Tell me if I have failed in my effort to do so. Yes, ma’am.¶
MS. MENNINGER: Your Honor, two quick things, I think. With respect to medical records, we also certainly believe that the period from the time the statement was made in January 2015 until the present, because she has claimed emotional distress from that defamation —¶
THE COURT: Sure, yes.¶
MS. MENNINGER: The problem is, we have asked through interrogatory what were the names of the medical providers because they have not disclosed who her medical providers were. So there is no way for us to tell whether the records in fact have been sought from and produced with respect to each of those medical providers. I will say that other records in the possession of plaintiff lists other doctors who they have not asked for records from or releases.¶
THE COURT: Let’s see if we can clear that up.¶
MS. McCAWLEY: We have disclosed the names. She has those names. We have also disclosed records, the more recent records. We have not contested that.¶
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With respect to the interrogatories, your Honor ruled on this previously, but there is a local Rule 33.3, which is why we didn’t serve interrogatories in this case at this point. She is deposing the plaintiff in two weeks, next week, whenever it is, and can certainly ask those questions as well. But we have disclosed the names of the providers.¶
MS. MENNINGER: They have not, your Honor.¶
THE COURT: Look. Wait just a moment. You two are lawyers. Now, that is not an issue about which you should differ. Go over in the corner right now, both of you, and let’s make it clear who is telling me the right story. Now.¶
I take it that I misunderstood the colloquy and that this matter has been resolved.¶
MS. McCAWLEY: Your Honor, I think there was a misunderstanding with respect —¶
THE COURT: I was sure.¶
MS. McCAWLEY: Dr. Olsen has been noticed for deposition in Colorado already. In my view, we have disclosed the doctors. Ms. Menninger says that there is other doctors that have been disclosed in documents that we have not yet listed to her. I think in discovery we are finding additional —¶
THE COURT: You think you may not have discovered that your client has had some doctors —¶
MS. McCAWLEY: In the past. We are talking about¶
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years and years ago. The recent doctors we have disclosed they have noticed for deposition.¶
THE COURT: What else?¶
MS. MENNINGER: Your Honor, with respect to the employment and education records, as you heard plaintiff say, she has disclosed, quote/unquote, what she has. Under local rule 33.3, we are allowed to ask for the names of witnesses with knowledge at the outset of the case, and they might be custodians of records. We asked her who have been your employers. She won’t tell us who her employers have been. She has just gone through her computer and say if I have an employment record I’ll give it to you, but I am not going to tell you who her employers were.¶
THE COURT: She will.¶
MS. MENNINGER: Same thing with the education records. We asked her to list where she had gone to school and tell us where it is. She won’t do it. Those are the things where my skepticism arises from.¶
Largely, to the extent your Honor has ordered the production of whatever materials, criminal investigation materials that were not to be submitted in camera, those were the ones that involved plaintiff’s statements, we would like the other materials that they have brought with them today to give to your Honor that do not encompass their client’s statements to law enforcement.¶
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THE COURT: I don’t know whether there are such. Is it possible that nothing in this lawsuit is clear? Well, I tried to make it clear what should be produced and what shouldn’t. Anything that has been submitted to any law enforcement officer by the plaintiff I will take in camera. Anything other than that with respect to any law enforcement should be produced.¶
MS. MENNINGER: Thank you, your Honor.¶
THE COURT: Thank you, all. I think we have the pleasure of your company — do we need you next week? We are up to date, aren’t we?¶
MS. McCAWLEY: Your Honor, we have a motion with respect to our discovery that’s set for next Thursday.¶
THE COURT: That’s fine.¶
MS. McCAWLEY: Just before we adjourn, because Mr. Cassell had a question, and I just want to make sure that I understand, with respect to tomorrow’s deposition, they are entitled to attend but have to leave the room if confidential information is disclosed?¶
THE COURT: That’s where we are at the moment, unless it changes.¶
MR. PAGLIUCA: Your Honor, with regard to next Thursday, both Ms. Menninger and I have other matters that are previously scheduled and it would be impossible for us to take care of those matters and be here at the same time. I’m¶
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wondering what the Court would like to do about that.¶
THE COURT: First of all, you know how we play this game. You don’t ask me first. You ask your opponent first. Have you done that?¶
MR. PAGLIUCA: I have not, your Honor.¶
THE COURT: Will you?¶
MR. PAGLIUCA: I certainly will, your Honor.¶
THE COURT: Now.¶
MR. PAGLIUCA: Absolutely.¶
THE COURT: You can go over to the corner, too.¶
MR. PAGLIUCA: I think we need a corner bar on this, your Honor.¶
Ms. McCawley, I’m wondering if we can get a mutually convenient date to hear that matter as opposed to next Thursday.¶
MS. McCAWLEY: Of course.¶
MR. PAGLIUCA: That was simple enough, your Honor.¶
MS. McCAWLEY: Your Honor, one more thing. I didn’t realize that my counsel can submit that stipulation to you because that case has been settled —¶
THE COURT: If I get something that closes that case and I get the affidavit that there are no other matters in which they have any claims or defenses relating to any of these statements, that will do it.¶
MS. McCAWLEY: Your Honor, so I know, if we can submit¶
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that by fax this afternoon, will they be able to attend the deposition tomorrow?¶
THE COURT: I would think so, if I think those are adequate representations and so on. The statement from a mediator doesn’t mean anything to me. Something that has a court sign to it. That I understand. But the mediator saying that it’s settled doesn’t work for me.¶
MR. CASSELL: Your Honor, maybe Mr. Edwards could briefly explain Florida procedure. The case has been dismissed, but it does not require a Court’s signature. Mr. Edwards can elaborate more fully on that.¶
MR. EDWARDS: Sure. If I may. There are two ways in which a case can be dismissed in Florida. One is by way of a court order. The other is by way of a stipulation. That is what was done. There was a stipulation of dismissal signed by both parties, that being the plaintiff and the defendants and counsel, that has been done and that was dismissed.¶
THE COURT: That’s filed in the case.¶
MR. EDWARDS: That’s filed in the case and filed in the court.¶
THE COURT: Do you have a copy of that?¶
MR. EDWARDS: I can get a copy of it immediately.¶
THE COURT: Give it to the defense. If they have any problems, they will let me know. That sounds all right to me. What do I know about Florida except that it’s flat and hot.¶
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Your representation sounds right.¶
MR. EDWARDS: Additionally, just with respect to the affidavit, there needs to be an affirmation that we have no other claims that relate to the statements in this case. Is that what we are saying?¶
THE COURT: I think it should be broader than that. I think it should be — look. I don’t think it would be appropriate if there is any possibility for either of you to being a party. That’s what I’m after. And having any proceedings against you arising out of the situation with the plaintiff. I think it would be inappropriate for you to be counsel if you have the potentiality of being a party, either plaintiff or defendant, in any proceedings. If I get an affidavit saying that you’re unaware of any claims against you or any intention to make a claim arising out of the circumstances surrounding this lawsuit, that should be broad. I think that would satisfy me.¶
MR. EDWARDS: Ok.¶
MR. CASSELL: I’ll be filing those materials this afternoon, your Honor. My plan is to attend —¶
THE COURT: The defense has a thought on this.¶
MR. PAGLIUCA: Your Honor, I am looking at documents from Florida. One is a docket sheet captioned: Epstein v. Brad Edwards and Paul G. Cassell, Lower Tribune Cases 15 000072 which shows that that matter is still pending. There is¶
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another case, as I understand it, Edwards v. Epstein and Rothstein, which is also pending. I can confer about this, your Honor.¶
THE COURT: Let’s do this. When do you plan to return to the snow fields?¶
MR. PAGLIUCA: There is still snow on the ground, your Honor. Well, Friday night or Saturday morning is my current plan.¶
THE COURT: That’s great. Whatever the applicants have on this subject, please turn it over. You all can work out how you are going to do that. Turn it over to the defense. And if there is anything you want me to do, I would be prepared to do it tomorrow. But that way I hope we can get it cleared up.¶
MS. McCAWLEY: Your Honor, we do have the deposition of the defendant scheduled for tomorrow.¶
THE COURT: Then everybody will be having a nice time together. Maybe you can all go out and have lunch, have a drink, and exchange these documents and go away happy. Not likely, but perhaps, depending on where you have lunch.¶
MS. McCAWLEY: Thank you, your Honor.¶
THE COURT: Anything else?¶
MS. MENNINGER: Nothing.¶
THE COURT: Thank you, all.¶
One thing. I would appreciate it if counsel would get¶
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THE COURT: Thanks a lot.¶
together on my request for additional coverage in the¶
confidentiality agreement.¶
MS. McCAWLEY: Sure.¶
G4LMGIUC¶
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK¶
Plaintiff,¶
15 CV 7433 (LAP)¶
Remote Zoom Conference¶
GHISLAINE MAXWELL,¶
Defendant.¶
Before:¶
HON. LORETTA A. PRESKA,¶
District Judge¶
APPEARANCES¶
BOIES, SCHILLER & FLEXNER, LLP¶
Attorney for Plaintiff¶
BY: SIGRID S. MCCAWLEY¶
HADDON, MORGAN, AND FOREMAN, P.C.¶
Attorney for Defendant¶
BY: LAURA A. MENNINGER¶
SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300¶
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(The Court and all parties appearing via Zoom)¶
THE COURT: Are we ready to begin or is there anyone else we’re waiting for? OK.¶
So let’s begin. I wanted to start out by thanking counsel for organizing the docket entries by motion, by Doe, by pinpointing the references to the Does and the like. It was exceedingly helpful to the Court and really a model of making it easy for the Court.¶
My law clerk is on the call and I’m going to invite him to correct me if I make any mistakes in going over charts when we go document by document.¶
To remind us where we are in the process of unsealing materials from v Maxwell, the Court is to:¶
One, evaluate the weight of the presumption of public access to the materials;¶
Two, identify and evaluate the weight of any countervailing interests; and¶
Three, determine whether the countervailing interests rebut the presumption.¶
The Court acknowledges that the presumption of public access attaches to judicial documents, that is, to documents filed in connection with a decided motion or to papers that are relevant to the Court’s exercise of its inherent supervisory powers. The documents at issue here relate to discovery motions previously decided by Judge Sweet, and so the Court¶
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concludes that they are judicial documents to which the presumption of public access attaches. Because the motions are discovery motions, the presumption is somewhat less weighty than on a dispositive motion but is nevertheless important to the public’s interest in monitoring federal courts’ exercise of their Article III powers.¶
The motions at issue today mention Does 1 and 2, the first long line of nonparties mentioned throughout the sealed materials. Pursuant to the protocol set out in docket no. 1044, these individuals were given notice of the motion to unseal and given the opportunity to request the material that pertains to them and to object to its unsealing. Neither Doe requested the material or lodged an objection to unsealing. The Court notes that the names of Does 1 and 2, portions of their deposition transcripts, and portions of the Palm Beach police report ascribed to them have already been made public. Also, Doe 1 gave a press interview about the subject matter of this action.¶
Also pursuant to the protocol, the parties were permitted to comment on the motion to unseal, and defendant Maxwell has lodged objections to unsealing. In her objections, Ms. Maxwell relies on several countervailing interests, the most weighty of which are that the material concerns personal matters that, if released, might lead to annoyance or embarrassment, that the material was abusively filed or is¶
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untrustworthy, and that the material concerns the subject of a criminal investigation.¶
With respect to the argument that the material constitutes personal information which might lead to annoyance or embarrassment if unsealed, Ms. Maxwell proffers little more than her ipsi dixit; she provides no specifics as to these conclusions. In her first deposition, which is among the documents being considered on this motion, Ms. Maxwell refused to testify as to any consensual adult behavior and generally disclaimed any knowledge of underage activity. In the context of this case, especially its allegations of sex trafficking of young girls, the Court finds that any minor embarrassment or annoyance resulting from disclosure of Ms. Maxwell’s mostly nontestimony about behavior that has been widely reported in the press is far outweighed by the presumption of public access.¶
With respect to the argument that the material was abusively filed or is untrustworthy, again, Ms. Maxwell proffers few specifics. That some of the exhibits to the motion papers might not have been technically required on the motion does not make the papers abusively filed. That Ms. Maxwell’s lawyers did not cross-examine some of the witnesses relied on does not make the witnesses’ testimony too unreliable to be unsealed. In any event, the Court is dubious that such a fine-toothed comb review is required to evaluate¶
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the public interest in access to these papers. Thus, the Court finds that these interests are entitled to little weight under the facts of this case.¶
Finally, that the material relates to a person now known to be under criminal investigation, Ms. Maxwell, is not entitled to much weight here. Again, Ms. Maxwell has relied on ipsi dixits and has not explained how the sealed material, if released, could, as she posits, “inappropriately influence potential witnesses or victims.” Again, the Court finds that this interest is entitled to little weight under the facts of this case.¶
As should be clear from the above, the Court finds that the countervailing interests identified fail to rebut the presumption of public access to the motions at issue and the documents filed in connection with those motions. Accordingly, those papers shall be unsealed.¶
The Court also notes that several of the documents sealed on these motion papers have already been made public, and so those documents will not be discussed.¶
Also, personal identifying information as to any person mentioned in the documents and the names of nonparties other than Does 1 and 2 and other portions related to such nonparties’ specific conduct will be redacted from the materials being unsealed. Disclosure of the additional nonparty names will await notice to those parties and an¶
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opportunity for them to be heard.¶
I won’t repeat this caveat as to each document but will only comment when it is not applicable. So unless there’s a specific comment, personal identifying information should be redacted and the names of the other Does not yet identified.¶
Consistent with the protocol, the Court will now announce its findings with respect to the sealed documents relating to Does 1 and 2 that are the subject of this motion to unseal. For ease of reference, as counsel knows, the Court will proceed in the order of the documents listed on Exhibit A, that is docket no. 1068-1.¶
Docket entry 143. Plaintiff’s motion to compel defendant to answer deposition questions. Unseal subject to the caveat which I won’t keep saying.¶
- Plaintiff’s declaration of Ms. McCawley in support of the motion. Unseal.
144-1. Exhibit 1. Page 21 of Ms. Maxwell’s April 22, 2016 deposition. Unseal.¶
144-2. Additional pages of Ms. Maxwell’s April 22, 2016 deposition. Unseal.¶
Same thing for 144-4.¶
Same thing for 144-5.¶
Same thing for 144-6.¶
Same thing for 144-7.¶
- Defendant’s response to the motion. Unseal.
SOUTHERN DISTRICT REPORTERS, P.C.¶
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- Declaration of Mister — how does he say it, Mr. Pagliuca? Say it again.
MS. MENNINGER: Pagliuca.¶
THE COURT: Mr. Pagliuca in opposition to the motion to compel. Unseal.¶
150-1. Additional pages from Ms. Maxwell’s April 22, 2016 deposition. Unseal.¶
-
Plaintiff’s reply memorandum of law on the motion. Unseal.
-
Ms. McCawley’s declaration in support of the motion to compel. Unseal.
I’m sorry. I’m going to go back to 152 for a minute. Unseal the portions summarizing Doe 1’s public statements. Those appear on page 6. Unseal portions summarizing deceased nonparties’ public statements. Page 6. OK.¶
Continuing on. 153-1. Additional deposition excerpts. Unseal.¶
-
Defendant’s motion to compel all attorney-client communications and work product put at issue by plaintiff and her attorneys. Unseal.
-
Declaration of Ms. Menninger in support of that. That can be unsealed in full because there are no — there is no material within the caveat in the document.
165-3. Exhibit C. This is a copy of a motion to join in Jane Doe 1 and Jane Doe 2 files in court. That document is¶
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165-8. Excerpts from Ms. deposition taken in the Dershowitz matter on January 16, 2016. Unseal.¶
165-10. Copy of e-mail correspondence. Unseal.¶
165-11. Excerpts from Ms. deposition, May 3, 2016. Unseal.¶
-
Plaintiff’s response in opposition to the motion. Unseal the portions relating to Does 1 and 2 which appears on page 3.
-
Ms. McCawley’s declaration in opposition. That can be unsealed in full because there is no material included in the caveats in the document.
185-2. Copy of Jane Doe’s no. 3 and 4 corrected joinder motion. Already filed in public.¶
185-3. Response to the motion to intervene. Already filed in public.¶
185-11. Various deposition excerpts from Ms. deposition. The pages unsealed by the Second Circuit should, of course, remain unsealed.¶
185-13. It’s a copy of Ms. May 30, 2016 affidavit. That can be unsealed in full.¶
185-14. Copy of deposition excerpts from Mr. Cassell. Unseal.¶
185-15. Copy of a transcript of the interview of April 7, 2011. Unseal in full. The document is¶
already public.¶
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already public¶
185-16. Copy of common interests agreement. Unseal.¶
- Ms. Menninger’s declaration in support of the motion to compel. Unseal in full.
194-3. Excerpts of Ms. deposition. Unseal.¶
-
Plaintiff’s motion to exceed the presumptive ten deposition limit. That may be unsealed. Obviously subject to the caveat.
-
Ms. McCawley’s declaration in support. Unseal
173-5. May 18, 2016 deposition transcript of Doe 162. Pages released by the Second Circuit, of course, will remain sealed — will remain unsealed. Let me say it again. The pages unsealed by the Second Circuit, of course, remain unsealed and further unsealing awaits notice.¶
173-6. Excerpts from Ms. Maxwell’s April 22, 2016 deposition. Same thing. Pages unsealed by the Second Circuit remain unsealed. The portions of the deposition relating to Does 1 and 2 which appear pages 71, 72, 73, and 218 shall be unsealed.¶
-
Response in opposition to the motion. Unseal everything except for the reaction — I’m sorry, the redaction on page 5 pending further nonparty notice.
-
Ms. Menninger’s declaration in opposition. That can be unsealed in full.
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190-1. Excerpts from Ms. deposition taken on May 3, 2016. Unseal everything except for the inadvertently included letter on page 2.¶
-
Response in support of the motion. The portions relating to Does 1 and 2 which appear at pages 2, 5, and 6 may be unsealed.
-
Ms. McCawley’s declaration in support. Unseal.
204-1. Doe no. 162’s deposition transcript. The pages unsealed by the Second Circuit will, of course, remain unsealed and the remainder of the document remains sealed until notice to the nonparty.¶
204-2. It’s Doe no. 151’s rough deposition transcript excerpts. The pages unsealed by the Circuit will remain unsealed. The remainder will await notice to that Doe.¶
204-3. Deposition of John Doe 1. Unseal in full.¶
-
That’s the reply to the motion. The portions mentioning Does 1 and 2 which appear at pages 2, 5, and 6 may be unsealed.
-
Ms. Schultz’s declaration in support of the motion. The portions mentioning John Does 1 and 2 which appear at page 2 may be unsealed.
212-1. Doe no. 162’s deposition transcript excerpts, pages unsealed by the Circuit will remain unsealed.¶
212-2. Doe 151’s final deposition transcript excerpts. The pages unsealed by the Circuit will remain¶
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unsealed¶
212-3. Doe 1’s deposition transcript excerpt. Unseal in full¶
222 — I’m sorry. 224. It’s the reply on the motion.¶
The portions relating to Does 1 and 2 which appear at page 2 may be unsealed.¶
-
That’s a motion for an extension of time to complete depositions. That’s open in any event.
-
The response in opposition to the motion.
Unseal.¶
- Ms. Menninger’s declaration in opposition.
Unseal.¶
221 — 229-1. Excerpts of the deposition of Doe no. 151. Hold until notice to that Doe.¶
229-2. The billionaire playboy’s club book manuscript. The pages unsealed by the Circuit will remain unsealed.¶
229-4. Excerpts of plaintiff’s deposition of May 3, 2016. Unseal the pages released by the Circuit.¶
229-10. This is correspondence released in the case between Ms. Maxwell and Jeffrey Epstein from January 2015.¶
Unseal in full.¶
229-11. Notices of deposition and a subpoena for Doe 84 — Will, I can say these two names, right?¶
THE LAW CLERK: Yes, Judge.¶
SOUTHERN DISTRICT REPORTERS, P.C.¶
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THE COURT: and together with a letter of production from Ms. McCawley. Unseal in full.¶
-
Reply memorandum of law in support of the motion. We’re going to await the notice to the Doe on that one.
-
Ms. McCawley’s declaration in support of the motion. Unseal in full.
249-4. Ms. McCawley’s correspondence with opposing counsel. The portions relating to Does 1 and 2 which appears at pages 4 and 5 can be unsealed.¶
249-13. Defendant’s Rule 26 disclosures. The portions relating to Does 1 and 2 shall be unsealed.¶
249-14. Ms. Schultz’s correspondence with opposing counsel. Unseal.¶
249-15. Same. Same.¶
-
Defendant’s motion to reopen the deposition of plaintiff It may be unsealed. However, the information currently redacted in the document relating to plaintiff’s medical history shall remain redacted for obvious reasons.
-
Ms. Menninger’s declaration in support of the motion. Unseal.
235-4. The deposition of Ms. The pages released by the Second Circuit of course remain unsealed. The portions relating to Doe 1 and 2 which appears — which appear¶
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at pages 122, 126, 134, and 138 shall be unsealed.¶
235-5. Ms. Menninger’s declaration. The medical records on pages 5 to 12 should remain sealed; otherwise, unseal.¶
235-6 are medical records. They shall remain sealed.¶
235-7. Excerpts from the — a deposition of Doe no. 131. That will remain sealed pending notice to the Doe.¶
235-8. Production letters from Ms. Schultz to Ms. Menninger. The exhibits will remain sealed.¶
235 — and they are medical records.¶
235-9. Excerpts from the May 26, 2016 deposition of Dr. Stephen Olsen. The material relating to plaintiff’s medical issues shall remain sealed. The other material in the deposition, for example, how the doctor takes notes, how the doctor gets new patients, how the doctor writes prescriptions and that sort of thing may be unsealed.¶
235-10. Production letters from Ms. McCawley to Ms. Menninger. Unseal.¶
235-12. The June 1, 2016 errata sheet relating to deposition. Unseal.¶
235-13. Plaintiff’s third revised disclosure pursuant to Federal Rule 26. Unseal.¶
- Ms. McCawley’s declaration in opposition to the motion. The reactions which are medical information will remain.
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260-1. Will, is this only the authorization or is it the authorization plus material?¶
THE LAW CLERK: Judge, I believe it’s the authorization on the first two pages and then the medical records on subsequent pages.¶
THE COURT: Thank you. The medical record authorization may be unsealed. The subsequent pages which constitute medical records will remain sealed.¶
260-2. Dr. Lightfoot’s June 27, 2016 correspondence. That may be unsealed.¶
-
The reply on the motion. The information relating to plaintiff’s medical history shall remain sealed.
-
Ms. Menninger’s declaration in support of the motion. Unseal.
268-1. Pages from plaintiff’s medical records. They shall remain sealed.¶
268-2. Excerpts from the deposition of Doe no. 67. The pages unsealed by the Second Circuit will remain sealed — I’m sorry, will remain unsealed and the remainder of the document will remain sealed pending notice to the relevant Does.¶
Counsel, I will ask you to confer and to prepare the documents for unsealing pursuant to this order and post the documents within a week on the docket sheet as documents unsealed pursuant to the Court’s order of July 23 or something¶
SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300¶
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like that.¶
Counsel, do you have any questions?¶
MS. MENNINGER: Your Honor, on behalf of Ms. Maxwell I would ask if we could have the opportunity for a brief stay in order to seek relief in the Second Circuit. There is not a certain mechanism for doing that in an unsealing context but I know that the Brown Court at the conclusion of their opinion stated their intent for that panel to maintain jurisdiction over this case for purposes of any appeals taken from an unsealing order and so we would ask for two weeks, if we could, to seek relief in the Second Circuit.¶
THE COURT: Ms. McCawley.¶
MS. McCAWLEY: Yes, your Honor. We obviously believe that the material should be unsealed as quickly as possible so we would prefer to obviously have the material unsealed.¶
MS. MENNINGER: Your Honor, if I may briefly, to add to my record. While I understand and respect the Court’s ruling, there have been some significant changes with respect to my client’s position since we concluded briefing. In particular, and perhaps known to everyone listening to this, while we were speaking about a potential ongoing criminal investigation at the time we submitted our brief, since that time Ms. Maxwell has been indicted and a trial has been scheduled for next July in another courtroom in the Southern District. So while we were not able to provide specifics¶
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necessarily with regard to what witnesses might be relevant to any such criminal trial, now we are in a vastly different position and certainly have great concerns about our client’s ability to seek and receive an impartial and fair trial and jury given the intense media scrutiny around anything that is unsealed or anything that happens in this or any of the related cases. So while we — your Honor had mentioned at the beginning of this ruling that there was a lack of specifics on the front of the pending criminal investigation, I think there may be the ability to provide a lot more specifics about that at this time and certainly I think it’s an issue that we would like to, if we may, have a brief amount of time to submit. It is important either to this Court’s analysis or to the Second Circuit.¶
THE COURT: So what are you asking me for?¶
MS. MENNINGER: Your Honor, I ask for two weeks if we could to file an emergency appellate motion in the Second Circuit and ask them to stay any further release.¶
THE COURT: I will give you a week to file the motion. In the meantime I will still ask counsel to confer and to prepare the papers for release. If the Court of Appeals has not ruled on your motion in a week, then you can let me know.¶
(Court reporter dropped off the call; called back in and read record to the point where call dropped)¶
THE COURT: After that, I asked counsel to confer¶
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generally along the outlines of the proposal in Ms. Maxwell’s letter of April 3, docket no. 1045 to propose the next chronological set of motions to be considered for unsealing. I also asked counsel to confer on ways to make the process more efficient, less time consuming, and to make it stretch out or over a shorter time period. For example, it occurs to me we could shorten the briefing time. We could reduce the number of pages of briefing, for example, to ten pages each side total or something like that. I’ll ask counsel to confer and to report back within a week.¶
Finally, going forward, as you all saw, Exhibit A to Ms. motion — I said the number of it earlier but that was exceedingly helpful. If you would like to propose a joint exhibit similar to that as we go forward with everybody’s positions, I would welcome it.¶
Is there anything else you want to ask, counsel?¶
MS. McCAWLEY: No, your Honor.¶
MS. MENNINGER: No, your Honor. Not from Ms. Maxwell. Thank you.¶
THE COURT: Thank you and I’ll just tell you lawyers again how useful the work you did in organizing the docket entries was. Thank you for it again.¶
MS. MENNINGER: Thank you, your Honor.¶
THE COURT: Good afternoon, counsel. Thank you.¶
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