United States District Court
Southern District of New York¶
[REDACTED]¶
Plaintiff,¶
Case No.: 15-cv-07433-RWS¶
v.¶
Ghislaine Maxwell,¶
Defendant.¶
_____/¶
PLAINTIFF'S AMENDED1 CORRECTED2 REPLY IN SUPPORT OF MOTION TO
EXCEED PRESUMPTIVE TEN DEPOSITION LIMIT¶
Sigrid McCawley
BOIES, SCHILLER & FLEXNER LLP
401 E. Las Olas Blvd., Suite 1200¶
[REDACTED]¶
1 Pursuant to conferral with opposing counsel, Plaintiff has revised the first paragraph of this brief, as well as the second-to-last paragraph of Section I of this brief out of a concern Defendant raised with the use of the term "set" when referring to depositions. In an abundance of caution, to avoid unnecessary disputes and waste of this Court's time, the undersigned agreed to revise the brief to remove the language in question. The remainder of this brief is unchanged.¶
2 On June 13, 2016, [REDACTED] filed her Reply in Support of her Motion to Exceed the Presumptive Ten Deposition Limit (DE 203). [REDACTED]¶
Ft. Lauderdale, FL 33301 (954)356-001I¶
TABLE OF CONTENTS¶
Page¶
| I. | THE PROPOSED DEPOSITIONS ARE IMPORTANT TO THE FUNDAMENTAL | |
|---|---|---|
| CLAIMS AND DEFENSES IN THIS CASE, AND NONE ARE DUPLICATIVE. | I | |
| IS SEEKING HIGHLY RELEVANT TRIAL TESTIMONY. | 6 | |
| REQUEST IS TIMELY. | 9 |
TABLE OF AUTHORITIES¶
Page¶
Cases¶
Atkinson v. Goord,¶
No. 01 CIV. 0761 LAKHBP, 2009 WL 890682 (S.D.N.Y. Apr. 2, 2009) 3¶
Gen. Elec. Co. v. lndem. Ins. Co. of N. Am.,¶
No. 3:06-CV-232 (CFD), 2006 WL 1525970 (D. Conn. May 25, 2006) 9¶
LiButti v. United States,¶
107 F.3d 110 (2d Cir. 1997) 8¶
Rules¶
Fed. R. Evid. 404(6) 7¶
Fed. R. Evid. 415(a) 7¶
Plaintiff by and through her undersigned counsel, hereby files this reply in support of her Motion to Exceed Presumptive Ten Deposition Limit. The motion should be granted because has shown good cause for needing to exceed the ten deposition limit and in light of recent developments, has streamlined her request, and now seeks only a total of three additional depositions. The Court should grant her motion and allow her to take the three additional depositions.¶
I. THE PROPOSED DEPOSITIONS ARE IMPORTANT TO THE FUNDAMENTAL CLAIMS AND DEFENSES IN THIS CASE, AND NONE ARE DUPLICATIVE.¶
Defendant argues that the depositions seeks to take are somehow "duplicative" of each other. Even a quick reading of the Defendant's pleading makes clear this is untrue.¶
But, as the mere¶
3¶
fact of this dispute confirms, this case is going to be hotly contested and the weight of the evidence on each side is going to be vitally important. The Court is well aware of many other civil cases where the parties have taken far more than ten depositions by mutual agreement. Defendant’s refusal to agree to a few more depositions here is simply an effort to keep all the relevant facts from being developed.¶
Since [REDACTED] filed her initial motion seeking seven additional deposition, she has worked diligently to try to streamline the necessary depositions and has discovered new information concerning witnesses and their knowledge of the claims in this case. Accordingly, [REDACTED] currently brings before this Court a significantly shorter list4 of witnesses she needs to depose to prove her claim, with some alterations. To be clear, [REDACTED] has narrowed her request and is now only seeking an additional three depositions from the Court as follows:¶
[REDACTED]¶
- • [REDACTED]
- [REDACTED]
- [REDACTED]
- [REDACTED]
[REDACTED]¶
[REDACTED]¶
[REDACTED] is still working diligently with opposing counsel, these witnesses, and their attorneys on scheduling, as well as identifying other witnesses who may have factual information about the case. But, at this time, she seeks this Court’s approval for an additional three depositions – depositions that will not consume the full seven hours presumptively allotted.¶
All three prongs of the three-factor test to evaluate a motion for additional depositions strongly support granting the motion. Atkinson v. Goord, No. 01 CIV. 0761 LAKHBP, 2009 WL 890682, at *1 (S.D.N.Y. Apr. 2, 2009). First, as reviewed in detail on a witness-by-witness basis above, the discovery sought is not duplicative. [REDACTED]¶
[REDACTED]¶
Second, if [REDACTED] is denied these depositions, she will not have had the opportunity to obtain the information by other discovery in this case. [REDACTED]¶
[Redacted text block]¶
5 [Redacted text block]¶
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block] Document discovery
and interrogatories are not helpful in obtaining this type of evidence: depositions are needed.¶
Third, the burden and expense of this proposed discovery is limited to three additional depositions. Defendant in this case is a multi-millionaire with able counsel. Three depositions will not cause her undue burden, expense, or inconvenience. These depositions are important to resolving issues in this case. [Redacted text block]¶
[Redacted text block]
[Redacted text block]¶
It is plain why Defendant does not want these depositions to go forward. [Redacted text block]¶
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]¶
II. [Redacted] IS SEEKING HIGHLY RELEVANT TRIAL TESTIMONY.¶
All of the people [Redacted] seeks to depose have discoverable and important information regarding the elements of [Redacted] claims. [Redacted text block]¶
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]
[Redacted text block]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
[REDACTED]¶
In addition, one of the witnesses that [REDACTED] seeks to depose is registered sex offender Jeffrey Epstein, who stands at the center of the case. Indeed, some of the most critical events took place in the presence of just three people: [REDACTED], defendant Maxwell, and Epstein. If Epstein were to tell the truth, his testimony would fully confirm [REDACTED] account of her sexual abuse. Epstein, however, may well attempt to support Defendant by invoking the Fifth Amendment to avoid answering questions about his sexual abuse of [REDACTED].¶
Defendant makes the claim that it would be a “convoluted argument” to allow [REDACTED] to use those invocations against her. Defendant’s Resp. at 3. Tellingly, Defendant’s response brief cites no authority to refute that proposition that adverse inference can be drawn against co-conspirators. Presumably this is because, as recounted in [REDACTED] opening brief (at pp. 20-¶
[REDACTED]¶
22), the Second Circuit's seminal decision of LiButri v. United States, 107 F.3d 110, 121 (2d Cir. 1997), squarely upheld the drawing of adverse inferences based on a non-party's invocation of a Fifth Amendment right to remain silent. The Second Circuit instructed that, the circumstances of given case, rather than status of particular nonparty witness, determines whether nonparty witness' invocation of privilege against self-incrimination is admissible in course of civil litigation. Id. at122-23. The Second Circuit also held that, in determining whether nonparty witness' invocation of privilege against self-incrimination in course of civil litigation and drawing of adverse inferences is admissible, court may consider the following nonexclusive factors:¶
- (1) nature of witness' relationship with and loyalty to party;
- (2) degree of control which party has vested in witness in regard to key facts and subject matter of litigation;
- (3) whether witness is pragmatically noncaptioned party in interest and whether assertion of privilege advances interests of witness and party in outcome of litigation; and
- (4) whether witness was key figure in litigation and played controlling role in respect to its underlying aspects.
Id. at 124-25. will be able to establish that all these factors tip decisively in favor of allowing an adverse inference. Accordingly, her efforts to depose Epstein, and seek important information that will be admissible at trial.¶
III. REQUEST IS TIMELY.¶
Defendant also argues that this motion is somehow "premature." Defendant's Resp. at 2-3. Clearly, if had waited to file her motion until later, Defendant would have argued until the matter came too late. The motion is proper at this time because, as of the date of this filing, fact discovery closes in 17 days (although has recently filed a motion for a 30-day extension of the deadline). In order to give the Court the opportunity to rule as far in advance as possible — thereby permitting counsel for both side to schedule the remaining depositions — brings the motion now. She also requires a ruling in advance so that¶
she can make fmal plans about how many depositions she has available and thus which depositions she should prioritize. 9¶
An additional reason this motion is appropriate now is that, despite diligent pursuit of depositions, many witnesses have cancelled their dates, failed to appear, or wrongfully evaded service. These maneuvers have frustrated ability to take their depositions in a logical and sequential fashion, complicating the planning of a deposition schedule.¶
witnesses evaded Additionally, three other important repeated efforts to serve them. It took motion for alternative service (DE 160) to convince Jeffrey Epstein to allow his attorney to accept service of process. The Court also has before it motion to serve mid by alternative service. These witnesses' evasion of service delayed the taking of their depositions, and, as of the date of this fling, none have been deposed yet.¶
CONCLUSION¶
For all these reasons, should be allowed to take three more depositions than the presumptive ten deposition limit — a total of thirteen depositions.¶
Dated: June 14, 2016.¶
9 Defendant tries to find support for her prematurity argument in Gem Elec. Co. v. Indem. Ins. Co. of N. Am., No. 3:06-CV-232 (CFD), 2006 WI.. 1525970, at *2 (D. Conn. May 25, 2006). However, in that case, the Court found a motion for additional depositions to be premature, in part, because "[d]iscovery has not even commenced" ... and the moving party "ha[d] not listed with specificity those individuals it wishes to depose." Of course, neither of these ints a lies in this case at hand: the parties are approaching the close of fact discovery, and has provided detailed information about each individual she has deposed already and still seeks to depose.¶
Respectfully Submitted,¶
BOLES, SCHILLER & FLEXNER LLP¶
By: /s/ Sigrid McCawley¶
Sigrid McCawley (Pro Hac Vice)¶
Boies Schiller & Flexner LIP¶
401 E. Las Olas Blvd., Suite 1200¶
Ft. Lauderdale, FL 33301¶
(954) 356-0011¶
David Boies¶
Boies Schiller & Flexner LLP¶
333 Main Street¶
Armonk, NY 10504¶
a J.t (Pro Hac Vice)¶
, JAFFE, WEISSING,¶
FISTOS & LEHRMAN, P.L.¶
425 North Andrews Avenue, Suite 2¶
Fort Lauderdale, Florida 33301¶
(954) 524-2820¶
Paul G. Cassell (Pro Hac Vice)¶
S.J. Quinney College of Law¶
University of Utah¶
383 University St.¶
Salt Lake City, UT 84112¶
(801) 585-520210¶
1° This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation.¶
CERTIFICATE OF SERVI_CE¶
I HEREBY CERTIFY that on the 14th day of June, 2016, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CM/ECF.¶
Laura A. Menninger, Esq.¶
Jeffrey Pagliuca.¶
HADDON, & P.C.¶
150 East 10 Avenue¶
Denver, Colorado 80203¶
Tel: (303) 831-7364¶
Fax: (303) 832-2628¶
Email: Imenninger@hmflaw.com¶
/s/ Sigrid S. McCawley¶
Sigrid S. McCawley¶