UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK¶
In re:¶
Docket #19cv10475 , et al., : 1:19-cv-10475-LGD-DCF¶
- against -
INDYKE, et al.,¶
Plaintiffs,¶
New York, New York Defendants. : May 22, 2020 : TELEPHONE CONFERENCE¶
PROCEEDINGS BEFORE THE HONORABLE DEBRA C. FREEMAN, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE¶
APPEARANCES:¶
For Plaintiffs: BOIES, SCHILLER & FLEXNER LLP¶
BY: SIGRID S. MCCAWLEY, ESQ.¶
SABINA MARIELLA, ESQ.¶
ANDREW VILLACASTIN, ESQ.¶
401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301¶
For Defendants - TROUTMAN SANDERS LLP¶
Darren K. Indyke and BY: BENNET MOSKOWITZ, ESQ.¶
Richard D. Kahn: MATTHEW AARONSON, ESQ.¶
VALERIE SIROTA, ESQ.¶
875 Third Avenue New York, New York 10022¶
Transcription Service: Carole Ludwig, Transcription Services 155 East Fourth Street #3C New York, New York 10009 Phone: (212) 420-0771 Email: Transcription420@aol.com¶
Proceedings recorded by electronic sound recording; Transcript produced by transcription service.¶
For Defendant - Ghislaine Maxwell: HADDON, ANRE BY: LAURA MENNINGER, ESQ. 150 East Tenth Avenue Denver, Colorado 80203¶
COURT REPORTER PRESENT¶
INDEX¶
EXAMINATIONS¶
Re- Re-Witness Direct Cross Direct Cross Court¶
None¶
EXHIBITS¶
Exhibit Voir Number Description ID In Dire¶
None¶
2 THE COURT: All right, so this is Judge 3 Freeman and this is a conference in four of the cases 4 against the Jeffrey Epstein estate, versus 5 Indyke, 19cv10475, versus Indyke, 19cv10476, 6 versus Indyke, 19cv10479 and Doe 1000 versus 7 Indyke, 19cv10577. If you are here for some other 8 case or you think I got those numbers wrong, please 9 make sure I know about it. But I'm going to ask for 10 your appearances, we have quite a number of people on 11 the line, may I have appearances first by plaintiffs' 12 counsel in these cases.¶
13 MS. SIGRID MCCAWLEY: Yes, Your Honor, good 14 morning, this is Sigrid McCawley from the law firm of 15 Boies, Schiller & Flexner, and I'm representing the 16 plaintiffs in the actions that you listed. Along with 17 me I have my colleagues, Sabina Mariella and Andrew 18 Villacastin. We also have a few of our summer 19 associates who had joined the line, as well.¶
20 THE COURT: All right, do I have a court 21 reporter on the line?¶
22 COURT REPORTER: Yes, good morning, Judge, 23 this is Kristen Carinonte (phonetic), may I ask the 24 parties who are not speaking to mute until they're 25 needed to speak, please.¶
2 THE COURT: Yes, and also I'm going to ask¶
3 anyone who is giving appearances for the record to¶
4 please spell your names. Ms. McCawley, if you could¶
5 please spell your name and the names of your¶
6 colleagues?¶
7 MS. MCCAWLEY: Of course, Sigrid McCawley,¶
8 which is spelled S-IG-R-I-D, and the last name is¶
9 McCawley, M-little C-big C-A-W-L-E-Y. I also have¶
10 with me Sabina Mariella, which is S-A-B-I-N-A¶
11 Mariella, M-A-R-I-E-L-L-A, and Andrew Villicastin, and¶
12 that's A-N-D-R-E-W, and Villicastin is V-I-L-L-I-C-A-¶
13 S-T-I-N.¶
14 THE COURT: And you're counsel in all of the¶
15 cases that are on for today?¶
16 MS. MCCAWLEY: Correct. Correct, Your Honor.¶
17 THE COURT: Can I have defendants' counsel,¶
18 please.¶
19 MR. BENNET MOSKOWITZ: Hi, Your Honor, again,¶
20 this is Bennet Moskowitz, B-E-N-N-E-T, last name M-0-¶
21 S-K-O-W-I-T-Z, at Troutman Sanders, for the co-¶
22 executors in each of these cases. My colleagues who¶
23 handle the day to day discovery, Matthew Aaronson and¶
24 Valerie Sirota are on, that's Matthew is M-A-T-T-H-E-¶
25 N, last name is A-A-R-O-N-S-O-N, and Valerie, V-A-L-E-¶
2 R-I-E, last name Sirota, S-I-R-O-T-A, and we're 3 counsel for the co-executors in each of these cases.¶
4 THE COURT: All right, do I have any other 5 attorneys who are on who are representing plaintiffs 6 in any of the other cases that are pending before the 7 Court? No, all right.¶
8 MS. LAURA MENNINGER: Your Honor?¶
9 THE COURT: Yes?¶
10 MS. MENNINGER: Sorry, this is defendant's 11 counsel for Ms. Maxwell, Laura Menninger, I'm in the 12 10475 case.¶
13 THE COURT: Can you spell your name, please?¶
14 MS. MENNINGER: Yes, it's L-A-U-R-A M-E-N-N-I-15 N-G-E-R.¶
16 THE COURT: Okay. And again, are there any 17 other attorneys on the line in any of the cases? All 18 right, I'm going to assume then that anyone else on 19 the phone is public or press and just ask you to 20 please keep your lines muted. Sometimes on these 21 calls we hear beeps which suggests that someone else 22 may have joined in the call, it can also suggest that 23 someone may have dropped off the call, and because of 24 that I'll probably interrupt anyone who is speaking 25 just to try to make sure that we didn't lose anybody¶
2 or we didn't gain anyone we should know about. It's 3 not a courtroom where I can see people coming and 4 going so I just like to make sure we didn't 5 accidentally lose one of the counsel who's supposed to 6 be present, and I apologize in advance for the 7 interruptions. Do I have¶
8 : Yes, Judge, I'm here.¶
9 THE COURT: Okay, that's one of my law clerks, 10 just so you know. All right, so I have letters in 11 these cases, they've come in clusters of letter and 12 response and reply in the three, the three cases where 13 Ms. Maxwell is not a party and then there are letters 14 relating to her in the case where she is a party. Let 15 me start with the other cases where she is not the 16 party and deal with those letters first. Can I have 17 from Ms. McCawley just a status update from you where 18 things stand with your current requests, with your 19 understanding about potential settlements?¶
20 MS. MCCAWLEY: Yes, Your Honor. So with 21 respect to the requests, we've presented to the Court 22 a main threshold issue which has been unresolved at 23 this point by the parties, and that is the issue of 24 the time period within which the defendants of the 25 estate will produce documents. That issue remains¶
2 unresolved. It is the plaintiffs' position that 3 documents for the entire relevant time period for each 4 plaintiff would run from the date of their abuse that 5 year to the present are responsive and relevant to 6 discovery in the case. That goes to the evidence with 7 respect to any of the conduct that Epstein was 8 engaging in over those years that would prove the 9 abuse, not simply as in a car crash case, you don't 10 just get the evidence of the date of the car crash, 11 you get all evidence relating to anything that's 12 relevant and could be used potentially at trial. 13 Similarly here, the defendants have attempted to limit 14 their production to simply the year of the abuse or 15 'years of the abuse if it happened in more than one 16 year. It's our position that all evidence relating to 17 the 20, over 20 year span of Epstein's abuse of not 18 only our clients, but other clients that are similarly 19 situated, other women that are similarly situated, is 20 highly relevant to the discovery in this matter.¶
21 And, of course, as Your Honor knows, the 22 plaintiff has the burden of proving her case in each 23 of these instances and the estate has taken the 24 position of attempting to prove Epstein's innocence, 25 therefore making all of this information highly¶
2 relevant to the entire time period. This is similar 3 to other cases that have come before in the Southern 4 District of New York, for example, Judge Sweet in his 5 case with one of the victims allowed discovery for the 6 entire time period from 2000 to the present, and that 7 is again because under 415 evidence of other abuse can 8 be admissible at trial. So we believe that the entire 9 time period is highly relevant and those documents 10 need to be produced.¶
11 The status of this, as of the date of filing 12 our letters no documents have been produced in the 13 last couple of days. In case and in the 14 Jane Doe 1000 case there has been one document 15 produced by the defendants. In the case of 16 there have been three documents produced, one 17 of which was clawed back. And in the case of Juliet 18 , there have been 90 documents produced, and 19 that is on their side. So we are still in a position 20 where we have not received any substantial document 21 production in this case.¶
22 The Court will remember that back on January 23 28th, the cases were filed in November, back on January 24 28O1 we sent, after your hearing that you had in 25 December asking them to preserve documents, we sent a¶
1 2 3 10¶
document preservation letter that outlined in very specific detail the email accounts which we were aware 4 of that Mr. Epstein had utilized. You are going to 5 hear today, and you saw it in the filings from the 6 defendant about their claims of burden, they have not 7 justified burden at this point, they have thrown 8 around a number of 700,000 documents. I will tell you 9 that we've already gone through 600,000 documents in 10 just Annie's case alone for our production. They have 11 not produced a hit list to show burden or otherwise 12 establish why our request would be so burdensome. So 13 with respect to, and that is only, now they are only 14 still responding for the time period that is the one 15 or two year window, depending on the particular 16 plaintiff.¶
17 So at this stage we do not have, that is still 18 the threshold issue that we're asking this Court to 19 resolve. We need that issue resolved before we can 20 undertake depositions or get this case moving because 23. we at this point have no documents of any substance 22 from the other side. So that is the key issue that 23 we've put before the Court for resolution. They have 24 produce supplemental interrogatory responses. Again, 25 those are still limited to the time period that they¶
2 have set forth. They have not agreed to produce
3 information for the entire time period at this point.
4 So that is the key issue that we've put before the
5 Court that we need resolution on it in order to be
6 able to move these cases forward at this point.¶
7 THE COURT: All right, before I ask some
8 questions about that, let me just ask about potential
9 for settlement of these cases, what's plaintiffs'
10 understanding?¶
11 MS. MCCAWLEY: Potential for settlement in
12 these cases, as Your Honor knows, there was the
13 proposal of a potential claims administration program
14 that came about in the fall of this past year. That
15 program has been through a series of back and forth
16 between the US Virgin Islands AG and the estate with
17 input from various plaintiffs' attorneys, as well.
18 That program has not yet been approved, it's made
19 headway but it has not yet been approved to move
20 forward. There are still issues with respect to a
21 release and other matters, so that has not gotten off
22 the ground at all. So there have been no substantive
23 settlement discussions of any kind in these cases.
24 And again --¶
25 THE COURT: If the program gets off the¶
2 ground, the program as you understand it to be 3 fashioned, would these plaintiffs be likely to 4 participate in it?¶
5 MS. MCCAWLEY: We still have to have those 6 final conversations with the clients pending what the 7 final outcome of the program is, but they have all 8 been interested in trying to participate in a program 9 if it does go forward. Our concern, of course, is that 10 that program has been delayed and has not moved 11 forward, so we have had the need to press forward with 12 our case. Of course, in that program, too, any offer 13 that could be made could be very substandard where our 14 clients would want to proceed with the merits of their 15 action, which is why we are here before the Court 16 trying to seek resolution of our clients' claims, 17 because there is no guarantee with respect to that 18 program, whatsoever.¶
19 So we are in a position where we need to and 20 want to move forward with discovery without further 21 delay to be able to get to the merits of our clients' 22 claims. Any discovery that we receive in these 23 matters would be relevant anyway to those discussions 24 with our presenting claims to the claims 25 administrator. So we see that as coinciding and being¶
2 relevant and responsive to us being able to establish 3 our claims, again, before the claims administrator.¶
4 THE COURT: All right, and going back to your 5 request to compel discovery from defendants, you say 6 that the timeframe is the issue. The way the letter 7 was presented it appeared to say in general you hadn't 8 gotten discovery responses to document requests or 9 interrogatories and then you highlighted this issue. 10 Is this really the key issue or the only issue or are 11 there other issues with respect to just not getting 12 responses?¶
13 MS. MCCAWLEY: Well you're correct, Your 14 Honor, at the time we wrote the initial letters, the 15 responses were, there were not responses, there were 16 just objections. They have since supplemented their 17 responses but, again, limiting it only to the 18 timeframe. So we still may have issues with those 19 responses because at this point we only can see them 20 as to the time period within which they're saying the 21 abuse victims, that time period where they were 22 abused. So we don't believe that they're fulsome at 23 this point, but if the Court could resolve the 24 threshold issue of whether or not they have to produce 25 for the entire time period, they would then¶
2 supplement, our assumption is that they would
3 supplement their responses both to interrogatories and
4 to the request for production, and then we could
5 evaluate that point if it appears that there is
6 anything missing.¶
7 THE COURT: And why would it not be the case
8 that document request by document request or
9 interrogatory by interrogatory the inquiry might be
10 different as to what timeframe would be appropriate to
11 look at? There might be some, depending upon how the
12 request is framed, where it would be appropriate to
13 look at a longer timeframe, and there may be some
14 based on the nature of the request where that would
15 not make sense to look at a longer timeframe, why
16 should I be doing this on a global basis?¶
17 MS. MCCAWLEY: Well that's a very fair
18 question, Your Honor. So the requests, for example,
19 seek information related, like the request number one
20 is information related to the plaintiff including
21 diaries -- diaries, journals, calendars, any
22 information, travel itineraries, that relate to that
23 plaintiff. And that could be in any time period. For
24 example, if Epstein last year was talking about one of
25 our clients and had information that he had recorded¶
2 in an email about one of our clients, that would be 3 responsive.¶
4 So the time period does pertain, in my view, 5 to all of the requests. They have not come to us and 6 said a particular request only applies for these 7 reasons to one particular year. In my view, the 8 requests, for example, for flight logs, if there 9 aren't flight logs in a certain year they would only 10 produce what they have, obviously, but if they have 11 flight logs for the entire time period, we would want 12 those. So it is, Your Honor is correct that there can 13 be some request specific issues, but they haven't 14 agreed to produce anything outside of the year of the 15 abuse at this point.¶
16 THE COURT: Are there some requests that 17 relate to people other than your clients?¶
18 MS. MCCAWLEY: Yes.¶
19 THE COURT: Are there --¶
20 MS. MCCAWLEY: So, for example, yes. So, as I 21 said before, it's our position that with respect to 22 our clients' claims in each of the cases, information 23 relating to Epstein's abuse of other victims is highly 24 relevant under 415, particularly to establish that 25 this pattern of luring in young girls in the same way,¶
for example, saying you're interviewing for a modeling job, or saying they're coming for an assistant interview, the pattern of how he lured girls in then abused them is relevant to our clients presenting their claims to the jury to prove the truth of the fact that they were, as well, abused in a similar manner.¶
So we firmly believe that that information is highly relevant to the case. Again, the estate has taken the position, and you've seen it in their filings, that Epstein is innocent and we have to prove the truth of that, as well as with respect to all of these cases. So we are in a position where we are having to fight to get discovery from the estate. I was certainly hoping it would not be this kind of a battle, I was hoping that now that he is no longer taking his Fifth Amendment privileges, no longer with us, that we would be able to get substantive discovery in a more streamlined manner, but that is not the case. And this threshold issue is very important because it implicates our clients' ability to be able to present their case and to be able to substantively depose witnesses.¶
As Your Honor knows, our discovery deadline is¶
2 looming in early July. We need to be able to take the 3 depositions of various people who either interacted 4 with our clients who are witnesses to the abuse that 5 occurred in Epstein's various homes, and we need the 6 information and the documents from his files that 7 establish and relate to the abuse. And those are the 8 requests that we've put forward.¶
9 THE COURT: All right, I have some thoughts on 10 this but let me hear from defendants first.¶
11 MR. MOSKOWITZ: Hi, Your Honor, Bennet 12 Moskowitz, if I may, I'd like to address the program 13 issue first, which I think is much quicker than the 14 discovery, my colleague, Matt Aaronson, will address 15 the discovery issues, if that's okay?¶
16 THE COURT: Okay.¶
17 MR. MOSKOWITZ: So I am very, very surprised 18 to hear Ms. McCawley give a presentation that seems 19 like her clients are lukewarm on the program. She is 20 on the emails from this week where Brad, who 21 represents five plaintiffs, and we understand the vast 22 majority of claimants, all of whom want to participate 23 in the program according to him, announced to us on 24 the estate side that he was able to get the attorney 25 general to finally step aside and let the program move¶
2 forward. So my first surprise is hearing that Ms.¶
3 McCawley thinks that the program is still in some vast 4 limbo, it is not, for all the reasons that I discussed 5 this morning and which Ms. McCawley is aware of.¶
6 THE COURT: Hold on a second. We had two 7 separate conferences, one was at 10:00 and this one is 8 at 11:00. So when you say that we discussed this 9 morning, Ms. McCawley, unless you didn't announce 10 yourself, was not on that call and doesn't know what 11 you said on that conference.¶
12 MR. MOSKOWITZ: Sure, I'm happy --¶
13 MS. MCCAWLEY: No, Your Honor --¶
14 THE COURT: I'm sorry?¶
15 MS. MCCAWLEY: I'm sorry, this is Sigrid 16 McCawley, I didn't, I was not aware of a 10:00 17 conference call, I'm sorry.¶
18 THE COURT: We had a conference call in 19 certain of the other cases with different plaintiffs' 20 counsel where there were somewhat different issues 21 raised. I'm trying to cluster these so that we don't 22 have to have a marathon session with all cases at 23 once.¶
24 MR. MOSKOWITZ: I'm happy to concisely, as 25 best I can, go through the same points, and I will say¶
2 now that I know Ms. McCawley knows all of the¶
3 following with perhaps one exception, which I'll¶
4 explain. Ms. McCawley knows that around 69 individual¶
5 claimants, including her clients, have publicly come¶
6 forward to voice overwhelming support for the program,¶
7 including to the USVI probate court. We know that¶
8 that's the vast majority of known claimants. We're¶
9 aware of only one claimant who is a state court¶
10 plaintiff, who has publicly said that she is not¶
11 participating and that was through her counsel, and I¶
12 don't even know if that's that person's current¶
13 position.¶
14 Ms. McCawley also knows that seven plaintiffs¶
15 in the SDNY actions, including one of her clients,¶
16 , most recently, stayed their actions in¶
17 favor of the program, and it bears mentioning that¶
18 , you know, the stipulation in that¶
19 regard goes contrary to everything Ms. McCawley just¶
20 said. Your Honor entered that order, so I don't think¶
21 I need to repeat it verbatim, but mentioned in there¶
22 was the notion of conserving resources. And in that¶
23 regard, as a side note it bears mentioning that Boies¶
24 Schiller has been the biggest culprit in driving up¶
25 the estate's litigation costs, money that will never¶
2 be available for their clients or other alleged 3 victims in the program, we don't understand that. We 4 were staffed very leanly until recently, just me and 5 an associate, five attorneys on their side, including 6 three partners. I had to add lawyers, my colleagues 7 who are on now, to the team more recently because 8 Boies Schiller takes the most unreasonable positions 9 on discovery, grossly overbroad view, again, Mr. 10 Aaronson will get to that, and they make the most 11 constant threat to motion practice, notwithstanding 12 their clients participating in the program.¶
13 Ms. McCawley also knows that the protocol for 14 the program, which was done in close consultation 15 between the administrator and designers and claimants' 16 counsel, including hers, her firm, and with input from 17 the co-executors, is nearly finalized. And Ms. 18 McCawley also knows the only reason things haven't 19 gone forward until now was because of the USVI 20 Attorney General who, again, Mr. announced a 21 couple of days ago in an email that Ms. McCawley is 22 on, that that last, quote, "lingering issue," as Mr. 23 put it, is now resolved. And again, there are 24 a few less contentious matters to iron out, but it is 25 our firm's expectation that by sometime next week that¶
2 resolution in principle will be formalized.¶
3 The sole thing that not be 4 aware of is that if something unexpected happens and 5 that resolution in principle is not finalized, well 6 then by June 15th our current intent on the estate's 7 side is to move forward with the program absent the 8 probate court entering an order directing us not to or 9 otherwise impeding that. And I don't think that's 10 going to happen because another person who has voiced 11 support for the program is the probate judge, who on 12 February 4th at a hearing that Ms. McCawley attended, 13 as did David Boies, the probate judge said the 14 following, quote, "I think we agreed that everybody 15 believes this program is a great program."¶
16 So I will say that I don't understand why we 17 get one display of overwhelming support from Boies 18 Schiller and others when we are not before Your Honor, 19 and then we come before Your Honor and I hear a 20 different story. The program is going to go forward 21 very soon, I am confident of that, and I am confident 22 that per Ms. McCawley's own statements, all of her 23 clients, not just the one who stayed her action 24 already, are going to participate. So again, every 25 dollar we're spending on meantime is money that will¶
2 never be available for that program. That's all I 3 have to say on the program aspect, unless Your Honor 4 has questions I'll refer to my colleague, Mr. 5 Aaronson, to address the discovery issues.¶
6 7 issues. THE COURT: Let me hear on the discovery¶
8 MR. MATTHEW AARONSON: Good morning, Your 9 Honor, Matthew Aaronson. I want to correct a couple of 10 misstatements that Ms. McCawley made, it is not the 11 estate's position that documents that relate to the 12 claims asserted by the plaintiff will not be produced. 13 And, in fact, all of our discovery responses have 14 identified that to the extent the request seeks 15 information about plaintiffs, it will be produced.¶
16 We also identified, Your Honor, in the letter 17 that we sent to you --¶
18 THE COURT: Hold on, let me interrupt you, 19 without regard to timeframe or only within a specific 20 timeframe?¶
21 MR. AARONSON: I was about to clarify that. 22 We said in our letter to Your Honor, without regard to 23 timeframe, with respect to the plaintiff. And, in 24 fact, that is something that, Your Honor, the problem 25 we have here is we were still under the impression we¶
2 were meeting and conferring with plaintiffs' counsel 3 4 5 6 7 8 9 10 11 12 13 14 15 16 on these issues. And we put that in our letter, and before we could even, you know, we told them we would consider their positions, and before we could even conclude that they filed the letter with the Court. And I think you're aware we, our initial letter to the Court said that we were sort of surprised by that and saying it was premature. We still think these issues are premature, but the simple fact is, Your Honor, our position is we are producing any documents that reference or relate to the plaintiffs. And, in fact, we have searched documents for that, so there is no dispute there, there's no issue there. We're not saying that the time period for documents relating to plaintiff is limited in that way, shape or form.¶
17 18 situations, 19 20 21 22 23 24 25 one day in 2002, proportional to ask for What we did say was these are events, in some incidents that happened on and we're not saying it's not our client, the estate, to search for documents relating to a 20, I guess it would be an 18 year period, Your Honor, relating people who may have worked at a property that Mr. Epstein owned, and, in fact, property that doesn't allege she ever visited. You know, it's a¶
2 scope issue but, again, to the extent that there is an 3 allegation that, I'm sorry, if there's a 4 document that references we've agreed to 5 produce it. We've searched for those documents and 6 the same applies for all the plaintiffs. So I want to 7 make it very clear that that was a misstatement of 8 what our position is.¶
9 You know, again, the scope here is just so 10 overbroad, beyond the plaintiff, that we think it's 11 not proportional to the case. We disagree completely 12 with Ms. McCawley's statement that any of that 13 discovery is necessary for her to prove her claims. 14 Her claims in the case are a simple claim of battery, 15 that's the claim in this case. That's her burden to 16 prove and that is it. And we have agreed to provide 17 documents that relate to her claims, if she said she 18 was at a property at a certain date, we've identified 19 to the best of our ability people who may have been at 20 that property at that date.¶
21 You know, I'm not sure what more we're 22 obligated to do, Your Honor, and this is part of the 23 problem. If they have complaints about search terms, 24 they didn't engage with us to talk about search terms. 25 Before we could even finish the process they ran to court.¶
2 We're open to a dialog. We've been always open to a dialog 3 to try to resolve these issues. As we've told you, they 4 prematurely went to court to try to, you know, to try to get 5 before Your Honor before we could even finish that. 6 And there's a lot of requests in here, Your Honor, 7 that are just completely unrelated to these cases, I 8 don't think it's appropriate now to go through each 9 one right now, but I just wanted to clarify that this 10 concept that it's a, we're not agreeing to produce 11 documents about the plaintiff, it's wholly untrue, and 12 I just wanted to make that very clear.¶
13 THE COURT: Okay. So let me go back on 14 plaintiffs' side, I'm not going to make any blanket 15 rulings and I'm not persuaded that you've conferred 16 fully in good faith before bringing the motion, in 17 part because you've already said that some of it is 18 moot because, in fact, when you got responses, you no 19 longer had a complete absence of information, and now 20 you're really just focused on the timeframe issue. 21 That tells me that when you wrote the initial letter, 22 you hadn't conferred fully in good faith to see what 23 really had to be put before the Court.¶
24 With respect to the timeframe issue, it sounds 25 like defendant is prepared to and planning to produce¶
2 documents without regard to timeframe that refer to 3 your clients or relate to your clients, and it also 4 sounds like defendant are willing to confer with 5 respect to other requests. As far as those other 6 requests go, the test for relevance is not whether 7 something is relevant to a general subject matter of a 8 case, it's whether it's relevant to a claim or defense 9 asserted in the case. It may be with respect to some 10 of the requests where timeframe is at issue, that the 11 documents sought are, in fact, highly relevant to a 12 defense that's been asserted in the case, for example. 13 It may be that they are tangentially relevant. It may 14 be the burden is great, it may be the burden is 15 modest.¶
16 It may be that -- let me just make sure I 17 didn't lose counsel, do I still have plaintiffs' 18 counsel?¶
19 MS. MCCAWLEY: Yes, Your Honor.¶
20 THE COURT: Do I still have defendants' 21 counsel?¶
22 MR. MOSKOWITZ: Yes, Your Honor.¶
23 THE COURT: All right, if anyone joined from 24 the public or press I'll please ask you to mute your 25 phone. Did anyone join who is an attorney in one of¶
2 the cases in front of me? No.¶
3 All right, I've lost the thread a little bit 4 of what I was saying, but the point is that if this is 5 in front of me with particularized disputes, I'm going 6 to have to look at each document request at issue or 7 each interrogatory at issue, hear from the parties 8 about the particular relevance to a claim or defense, 9 hear from the defendant about the particular arguable 10 lack of relevance or burden, and make item by item 11 determinations. I'm not going to do it in a blanket 12 fashion and you're going to have to confer on that 13 kind of level to get it focused for me, if it comes 14 back to me, so that I understand just what the 15 documents are that are being sought, just what the 16 claim of relevance is, just what the purported burden 17 is, just what the proportionality is so that I can 18 make that assessment balancing relevance factors.¶
19 Now, the other issue that we have is resources 20 and settlements, and whether the dollars that are 21 spent by defendant in litigating the case and 22 responding to discovery requests might be better spent 23 by being put into a fund if plaintiffs are planning to 24 participate in that, and whether it is a consideration 25 that I should take into account whether we should have¶
2 any kind of extended period of time for the responses so that you can see if you're going to participate in the program if the kinks are worked out.¶
3 4¶
5 6 7 8 9 10 11 12 In the earlier conference we had today what I did was allow the parties to have a bit of a hiatus in their cases to conserve resources, asking for a status letter by June 19th with the understanding that the estate was planning to move forward with the program no later than June 15th, absent something that they thought would be extraordinary to stop it from doing so.¶
13 14 15 16 17 18 19 20 So on plaintiffs' side whether you think it makes sense to give it a window of time before there are increased attorneys' fees spent to see if, in fact, that program is moving forward and you might be participating in it. And in any event, let me hear what you have to say about my view that perhaps you should be conferring further in good faith about these timeframe issues on a request by request basis.¶
21 22 23 24 25 MS. MCCAWLEY: Of course, Your Honor, this is Sigrid McCawley for the plaintiff. With respect to the issue of a hiatus, my concern there would be that we, as you know, back in November talked about this program. And while Mr. Moskowitz has made¶
2 representations on this call, you'll understand that 3 those were the same representations that he was making 4 back in December and January, and for a number of 5 reasons that program has just not moved forward. Now 6 I'm hearing for the first time this June 15th date, but 7 I have not heard before.¶
8 The problem I see with any kind of hiatus, and 9 to be clear, we don't want to, of course, expend 10 unnecessary estate resources, the issue that I have 11 with that is the continued delay and the part of the 12 disadvantage to my clients, and that they don't have 13 information, all the information they need relevant to 14 their claims because they haven't received, even 15 though we've tried diligently, they have not received 16 substantial production in the case of any kind.¶
17 So with respect to a hiatus, my concern would 18 be that right now our discovery deadline is set for 19 early July. We were hoping to get documents in order 20 to be able to take, start taking some of the necessary 21 depositions to get information for our case to be able 22 to move it forward. And I believe that is something 23 that we would be entitled to. I think that my concern 24 is that, again, it would be a July 15th date, then it 25 would be, I'm sorry, a June 15th date, then a July 15th¶
2 date, and it would continue without us being able to 3 move the case forward.¶
4 5 6 7 8 9 10 11 12 13 14 Also, as you know, the claims program is voluntary. So to the extent that a client does participate in that and gets, we don't know what that claims administration program is going to ultimately prove to be, so to the extent that a client and it's offered something or not offered anything, their case should be moving forward so that they're able to go to trial on the merits of their claims if they need to against the estate. So that would be my concern with making any change at this point. participates¶
15 16 17 18 19 20 23. 22 23 Again, the discovery in my view has moved very, very slowly so to pull back and not have them continue to engage with us on discovery in my view would be problematic because it would just further delay the case. So those are my concerns generally with respect to that. And again, I'm hearing from the other side this June 15th date but I have no confidence that that is something that will necessarily move forward because we don't have anything in writing with 24 respect to that or any statement from the court in the 25 USVI that they've approved that, or anything of that¶
2 nature. So that would be my concern there.¶
3 With respect to the issue before the Court, we 4 are in a position where the timeframe issue is 5 significantly problematic to us for the reasons that 6 I've outlined. While they are representing to the 7 Court today that they will produce documents related 8 to the plaintiff, you'll remember --¶
9 THE COURT: Well what do they say in their 10 responses that you got in? Did they say these 11 documents will be produced or is it just they're 12 saying this for the first time to the Court today?¶
13 MS. MCCAWLEY: With respect to the plaintiff, 14 they represented they would run the name of the 15 plaintiff in their discovery searches and produce with 16 respect to the plaintiff, yes, that they did. But the 17 problem with that --¶
18 THE COURT: Why did you tell me earlier on in 19 the call that they were refusing to produce any 20 documents for the later timeframe, even with regard to 21 the plaintiff?¶
22 MS. MCCAWLEY: That is my understanding of 23 their position, Your Honor. I'm hearing now that 24 they're saying, first of all, they've only produced 25 one document for case, one document for¶
2 Jane Doe's case --¶
3 THE COURT: Wait a minute. Wait a minute.¶
4 This is a complete lack of meaningful dialog between 5 the parties, because I'm hearing opposite things from 6 the parties about what defendants' position is.¶
7 Defendant, as I understand it from this call, has said 8 they will and have told you that they will produce 9 documents, regardless of timeframe, if they refer or 10 relate to the plaintiff. And that they're doing that, 11 in fact, in all cases and have not taken a position 12 that they would not. And you're saying that is Your 13 Honor understanding of their position, that they will 14 not. How can that be if you've had a good conference 15 between you?¶
16 MS. MCCAWLEY: Your Honor, as we set forth in 17 our letter, we did have a two-hour conference where we 18 asked them about the timeframe issue and made sure to 19 get the full position on that because that was our 20 biggest concern. And that is what we discretely 21 presented to the Court because that was the concern we 22 had, that they were not going to be producing anything 23 beyond the time period of the abuse.¶
24 THE COURT: No, that is not what you 25 discreetly presented to the Court, you presented to¶
2 the Court in your opening letter that there was a 3 complete failure to respond to any of the requests.¶
4 And now you tell me on the call that since then there 5 has been a response. And so what is now being 6 discreetly presented on this telephone call is what 7 you say is the remaining issue, which seems like it's 8 only a remaining issue in part. Because it seems like 9 if there are documents specifically relating or 10 referring to the plaintiff, defendants have agreed to 11 produce it, and according to defendants have told you 12 they've agreed to produce it in their responses that 13 you have since gotten.¶
14 Now I haven't seen those responses, if they 15 have, if they've been put before me, I'm sorry, I have 16 not reviewed them. I don't think I have them. For that 17 matter, I'm not sure I have all of their requests, I'm 18 not sure I have an item by item explanation of 19 relevance, and I'm not sure that your discussion has 20 been adequate between the lawyers.¶
21 MS. MCCAWLEY: Your Honor, this is Sigrid 22 McCawley for the plaintiff. I appreciate that, I am 23 hearing Your Honor, we will go back and address these 24 issues again with the defendants in the hopes of being 25 able to resolve them and not hopefully have to come¶
2 before the Court with respect to them. We are, again, 3 hopeful to be able to get discovery in this case. We 4 do not believe that has been the situation that we're 5 in presently and that's why we presented to the Court, 6 but I understand your point, Your Honor, and we will 7 make sure to engage further in the hopes of being able¶
10 defendants' side, by when do you plan to produce, assuming 11 we have no stay of discovery here or no hiatus, how, by when¶
14 MR. MOSKOWITZ: We've already started that 15 Your Honor, Bennet Moskowitz, excuse me. And, in 16 fact, I apologize, let me let Mr. Aaronson address 17 that question, then if I can I'd like to just very 18 quickly respond to something Ms. McCawley said about¶
23 Aaronson. We have already started the production, we 24 made a production I believe on Wednesday of documents, 25 and I think, in particular, , there was over¶
2 100 documents. So the process is underway, and again, 3 I think, Your Honor, you've gotten this correct, we 4 have told them, you know, that we will produce and 5 search for, search for and produce documents that 6 refer or relate to their clients. To the extent that 7 they think we need to additional search terms, we've 8 searched their, you know, the individual plaintiffs' names, 9 if there are additional search terms we are open to a dialog 10 to discuss that, if there are additional terms, as in every 11 case, you know, whether or not we can reach agreements on 12 those terms.¶
13 You know, the thing --¶
14 THE COURT: I'd like to put a deadline on 15 getting the production complete with respect to any 16 documents that in any way refer or relate to the 17 plaintiff after you've had some further discussion 18 perhaps on search terms, if necessary. But I'd like to 19 have a firm date when, you know, you're not just 20 producing a few documents, a few documents and say 21 it's underway, that that actually gets produced. 22 What's your response?¶
23 MR. AARONSON: That's fair, Your Honor, I 24 think the, you know, part of that goes back to the 25 same issue you raised earlier about, you know, the¶
2 expenditure of time and money on discovery issues versus, you know, putting it towards the program. You know, so to the extent the Court is not inclined to issue a pause or some sort of temporary, you know, issue on that, you know, it's hard to say. The problem we have is that, you know, it's difficult to search all of our files given the pandemic, some files have not been able to be collected yet. So I can tell you that of the electronic documents that we have collected, I think we can complete that probably, you know, within 30 days, you know, of what we've collected already. But I will tell you, we've done an initial pass through that and we have made those productions. As I said, Juliet, there was a significant number of documents, for some of the other plaintiffs there were not.¶
So, you know, again, we do believe that it would be appropriate to maybe pause some of this, but you said the Court is not inclined to do that. You know, I think 30 days for what we have, but to be clear, Your Honor, I don't know that we have collected every, you know, source at this time given our inability to collect documents due to the pandemic.¶
THE COURT: How has the pandemic affected your¶
2 ability to collect documents specifically?¶
3 MR. AARONSON: Well, and I'll let Mr.¶
4 Moskowitz speak to that, but my understanding is that, 5 you know, we haven't been able to access certain, 6 people are not traveling to different locations. So we 7 have collected electronic documents, I'm not, and 8 again, I'm deferring to Mr. Moskowitz on that, whether 9 or not additional documents are still out there.¶
10 MR. MOSKOWITZ: Yeah --¶
11 MR. AARONSON: Go ahead.¶
12 MR. MOSKOWITZ: Bennet Moskowitz, happy to 13 clarify that point, Your Honor. There are two, let me 14 take a step back, yes, it is true that we have 15 collected over 700-and-I think-40,000 documents, and 16 we did search them for the plaintiffs' names and we 17 did produce what we found that wasn't privileged. And 18 we will go back and make sure that that's complete. 19 But the fact that we located many documents for Juliet 20 as, which were dated to as late as I believe 21 last year, they've already been produced, so I don't 22 understand Ms. McCawley's confusion about the 23 timeframe issue. But in any event, the fact that we 24 found those but didn't find such documents for the 25 other cases, just evidences a lack of documents, not¶
1 2 3¶
38¶
something wrong with the search process.¶
In terms of the pandemic difficulties, my 4 problem with making a 30 day blanket representation is 5 that there are at least some hard copy files that I 6 would like certain people to look through. And while I 7 have no reason one way or the other to respect that 8 responsive materials are there, I'd like that to 9 happen before such deadline and I'm not 100 percent 10 certain that it can because at least some of the 11 documents are in places that are still under lockdown 12 or there are still health concerns.¶
13 In addition to that, this is somewhat subject 14 to the disputes about the scope of discovery. If Ms. 15 McCawley is, let's say, correct, in these cases 16 anything related to any allegedly bad thing Mr. 17 Epstein ever did is relevant in each action, well, 18 then it could take me, you know, six months or a year 19 to finish looking for every piece of paper in every 20 property Mr. Epstein owned. So again, it's with the 23. context of just the searching for names, Mr. 22 Aaronson's correct, that could be done in the next 30 23 days with the exception of anything that we can't 24 actually access to look through. And again¶
25 THE COURT: If you already have the documents¶
2 electronically, at least certain of the documents, 3 most of the documents --¶
4 MR. MOSKOWITZ: Yes.¶
5 THE COURT: And you have already gone through 6 them and you've already made some production, why 7 would you need another 30 days before you can get to 8 the end of that particular road?¶
9 MR. MOSKOWITZ: We may not, it really depends 10 on the rest of the meet and confer process which never 11 completed. It depends on the search terms that are 12 proposed, whether there are any additional search 13 terms proposed. For example, what we wanted to happen 14 during the full meet and confer process, which is what 15 we strive to do in every case, and what we're actually 16 doing in other actions against the estate that Boies 17 Schiller is not involved with, is suggest search terms 18 to us that you think would satisfy your view of what a 19 particular request entails, let us run the report. If the 20 hit report comes back and says 500 documents or even 21 1,000, we may deem that reasonable for that request. 22 If it goes back 10,000, we may not deem that 23 reasonable. So this is part of what an ongoing 24 discussion, I hope, would have entailed, which gives 25 me pause to again say blanket yes, we can get it all¶
2 done in 30 days.¶
3 4 5 6 As to searching for things that mention the plaintiffs, in what we've already collected, to the extent we didn't complete that, no, we don't need 30 days, but I don't know that that will satisfy Ms. 7 McCawley.¶
8 THE COURT: Okay. If this case goes all the 9 'way forward in litigation and goes to trial, you're 10 11 12 13 14 15 16 17 18 19 20 23. 22 23 24 25 going to try this case, you're not going to try every other case before this Court or any other Court at the same trial. That doesn't mean that evidence regarding others who are claiming to have been victims of Mr. Epstein might not have relevance to some claim or defense that's being raised. And I understand that it may, you know, some documents may have relevance, but you are going to have to get on plaintiff's side a lot more focused with what you want and why you want it. And if you are going to come back and make a renewed application to me, that application is going to have to be more focused on what kind of documents you're talking about, what claim or defense they're relevant to, why they're relevant to that claim or defense, giving me an example of some case law that shows how it could be relevant, and I will make a decision on a¶
2 request by request basis about what appropriate¶
3 timeframes should be used. And with respect to search¶
4 terms, in the first instance, you need to talk to each other¶
5 about that because you don't want the Court coming up¶
6 with search terms or trying to make judgment calls on that¶
7 if it's not necessary. You know, you are much better¶
8 off trying to figure it out between you, getting an¶
9 agreed protocol, an agreed list of custodians, an¶
10 agreed list of search terms and then go from there as¶
11 generally happens in cases where there might be a lot of¶
12 documents that are kept electronically.¶
13 So I expect you to go through that process as¶
14 you would in any other case. I am open to kicking out¶
15 your deadlines a bit to give you time to talk this¶
16 through and to see if we can get some progress. I'm¶
17 going to ask defendants, to the extent you already a¶
18 known universe of documents, if there are any you have¶
19 not yet produced, bet them produced within two weeks.¶
20 If there are additional search terms you'll talk with¶
21 each other in good faith about a timeframe for running¶
22 any additional searches and getting additional¶
23 documents produced. And if plaintiff wants to come¶
24 back to me on a renewed motion that's more¶
25 specifically laid out on particular categories of¶
2 documents or responsive to particular interrogatories,¶
3 you'll do that after you have tried to work these¶
4 thing through with an eye toward what is reasonable.¶
5 You know, plaintiff may reasonably need more than¶
6 defendants want to give. Defendants may have a¶
7 reasonable point about conserving resources for the¶
8 sake of a settlement program, which should be taken¶
9 seriously because it seems that very serious efforts¶
10 are underway to try to get that program off the¶
11 ground.¶
12 I'm going to ask for a status letter by June¶
13 19th which is the date that I gave in other cases. It's¶
14 geared to Mr. Moskowitz's representation that this¶
15 program should launch he thinks by June 15th. So it¶
16 seems to me by June 19th you'll have a better idea and¶
17 you'll also have a better idea of where you are with¶
18 respect to these discovery issues. I'm going to¶
19 caution plaintiffs' counsel, in the future please do¶
20 not send me something without being sure you're at the¶
21 end of the road in talking to your adversary. I don't¶
22 want to get a response that says it's premature, we¶
23 haven't really talked. Make sure you are clear on a¶
24 point by point basis that you have talked about¶
25 specific relevance, that you've talked about specific¶
2 burden issues, that you've talked about specific 3 4 5 6 search terms, at least you have tried to engage in that kind of dialog. If you're stymied, you're stymied, and I will hear from you, but I don't think you're at that point.¶
7 8 9 10 11 12 13 14 15 16 17 18 19 20 23. And I think that's it with respect to those disputes and I should probably turn to the dispute regarding Ms. Maxwell. What I'm going to do is I'm going to, I don't know if the letters were framed as a motion for a conference or a motion to compel. If they were framed as a motion for a conference I'll say granted, we had a conference. As to the underlying issue about compelling, you know, go talk, or if it's actually framed as a motion I'll say denied without prejudice to renew. And I'm going to ask for a status letter by June 19th. Anybody want to say anything else on that before I turn to Ms. Maxwell's issue? No, okay, I'm hearing no, or I'm hearing nothing. Hopefully I haven't lost everybody on the entire call. I'm hearing a laugh, so hopefully that means not.¶
22 23 24 25 All right, let me turn to Ms. Menninger's issue, and one thing I want to understand, because there was some reference to potential criminal prosecution which, of course, can impact whether there¶
2 'should be a stay as to a defendant who is being 3 criminally prosecuted. Currently, if I'm understanding 4 correctly, be the target of an 5 investigation, or you may be concerned she's the 6 7 target of investigation but there are not actual criminal charges pending, is that right?¶
8 9 MS. MENNINGER: Yes, that's correct, Your Honor, we do not have any criminal charges pending 10 anywhere, but we have a number of public statements by 11 the US Attorney's Office in the Southern District, as 12 well as statements made by plaintiffs' counsel to the 13 (press that suggest that those, that that investigation 14 is underway and that it would encompass Ms. Maxwell, 15 and so that is our concern. But it is correct to say 16 that there is no active criminal charges that I'm 17 aware of.¶
18 19 20 21 22 23 24 25 THE COURT: All right, so if there were active criminal charges filed, or if that should happen, that might influence the thinking about whether or not there should be a stay because, of course, if defendant ends up taking the Fifth that could have consequences in a civil case and defendant may feel there is little choice but to do that if the person is under criminal indictment or a complaint has been¶
2 filed.¶
3 So I just want to just note that if that 4 circumstance changed, if that circumstance changes, 5 you know, let me know, if it affects any ruling I make 6 let me know because I may need to revisit a ruling. 7 Let me hear what, given the last subject where there 8 seem to be some changed landscapes since the 9 application was initially made, let me make sure I am 10 aware of the current circumstance. Let me just hear 11 from Ms. Maxwell's counsel first on this.¶
12 MS. MENNINGER: Thank you, Your Honor, Ms. 13 Menninger here on behalf of Ms. Maxwell. The 14 landscape has not changed since our letters. We have 15 filed a motion to dismiss the claims which we believe 16 are distinct and different from any, for example, that 17 the estate might have, and we believe that they are 18 strong grounds for dismissal. The case, the 19 allegations against Ms. Maxwell in this case involve 20 an allegation of battery that occurred one time in 21 1996 in New Mexico. And the statute of limitations and 22 venue issues, you know, New York versus New Mexico, 23 are very different for Ms. Maxwell than perhaps for 24 the estate and we think provide the grounds for 25 dismissal.¶
2¶
The other two bases that we raised for a stay are the claims program that Your Honor has already spent some time discussing on this call and the earlier call today. We believe, you know, we don't have any independent information, we were not party to the calls in the Virgin Islands as were counsel for plaintiff and for the estate, but I have heard on the call today the representations made by the estate that they believe that the program will be getting off the ground in a matter of a few weeks, June 15th, so three weeks or so from today.¶
13¶
Given that plaintiff has indicated an intent to participate in that program, at least in filings in the Virgin Islands, and the fact that that program would, if she participates and is successful, would render this entire lawsuit moot. I think we believe balancing that fact against the extremely broad discovery demands that Your Honor has heard something about, although not with respect to Ms. Maxwell yet, would counsel in favor of at least a short stay, similar to the one that other plaintiffs' counsel have agreed to promoted or even stipulated to in other cases pending before Your Honor.¶
25¶
We have received extensive discovery demands,¶
we have been advised that plaintiffs' counsel intends to take a number of depositions, including, around the country, including for people that plaintiff in our case never met and had no dealings with. And, Your Honor, I can speak from personal experience with that same type of discovery happening with the same plaintiff's counsel in the [REDACTED] versus Maxwell action that I was counsel for in front of Judge Sweet, we had a number of significant discovery disputes in that case and we had depositions that occurred not only across the country from California to New York and Florida and many places in between, but also abroad in that case, and the litigation costs were in the hundreds of thousands easily in that case.¶
And so looking at the pattern of discovery that I believe plaintiff intends to pursue here, balancing the costs of those to someone like my client who is not a multimillionaire, and then viewing the claims program as something that could be successful in resolving this case in a short period of time, we would ask Your Honor to consider putting a stay on discovery in the [REDACTED] case that I am party to or I am counsel for a party to.¶
I think I can second or third some of the¶
2 things that have already been said earlier, so I don't
3 want to waste the Court's time with those, but we have
4 concerns that any money spent on this litigation is
5 going to reduce the amount of money that would be
6 available to any of the accusers in the Virgin
7 Islands, and we don't think it makes sense to expend
8 the money on these broad discovery requests if we can
9 get the case resolved shortly.¶
10 I think the only objection that I heard from
11 plaintiffs' counsel to something like a hiatus was
12 that there is a pending discovery cutoff of early July
13 and it seems to me reasonable that, you know, of
14 course if the claims program gets off the ground in a
15 few weeks, that discovery cutoff could be set out to
16 see if it's successful or not. And so it's sort of a
17 false premise to say that the discovery cutoff in July
18 is the reason we should be forging ahead full steam
19 with this extensive discovery, rather than just taking
20 the more logical approach to me, which would be to at
21 least put it on hold to see if the claims program is
22 successful in the first instance. And if not, then the
23 cases can proceed with the Court's blessing, you know,
24 pick back up where we left off.¶
25 In this particular case I think it also bears¶
2 noting that the claim allegedly occurred in 1996, so 3 it has been some 24 years since the allegation 4 supposedly happened. And so I don't see that waiting 1 5 or 2 or 3 months balanced against 24 years is, it's 6 not as though we think, you know, documents will go 7 missing in those three months that were already 8 somehow lost to the winds of time over the last 24 9 years, Your Honor.¶
10 THE COURT: So you are, I'll just note, by the 11 way, that in your initial letter you asked for an 12 opportunity to do full briefing, but there's a fair amount 13 laid out in the letters, so let me just get some 14 clarification on that. What more briefing would you be 15 looking to do beyond what's in these letters? I mean you 16 have case citations in these letters, at least some, and 17 you lay out the bases for a stay, what would you be 18 looking to do when you are trying to conserve resources, 19 do you really need full briefing?¶
20 MS. MENNINGER: I think it could be an 21 abbreviated briefing, but, yes, there are more cases in 22 support of the requests that we're making, there are more 23 cases in terms of the criminal investigation versus active 24 prosecution. And then there's certainly a fair amount of 25 exhibits that I could tender to Your Honor to display¶
the breadth of discovery that is part of the
traditional balancing test when looking at a motion to
stay or a good cause, a grounds for good cause is
balanced against the breadth of discovery.¶
THE COURT: You know, I don't remember if at
the beginning of this call I asked if my law clerk,
[REDACTED] was on, [REDACTED], are you there?¶
[REDACTED]: Yes, I'm here, Judge.¶
THE COURT: Okay, well for the court reporter,
it's [REDACTED], H-A-N-N-A. And [REDACTED] and I were
conferring before this conference about some case law
about criminal prosecution as opposed to criminal
investigation, and we weren't finding, at least on
initial look, cases where the Courts tended to stay
civil proceedings when there was an investigation
proceeding. You have cases that say the opposite.¶
MS. MENNINGER: Your Honor, I have some, they
are not in the Southern District, so there are some --¶
THE COURT: Okay.¶
MS. MENNINGER: (continuing) -- in various
federal and state cases across the country.¶
THE COURT: And you're looking for a stay of
the entire case, not just as to proceedings against
your client?¶
MS. MENNINGER: Your Honor, it seems to make sense to me to stay the case, but I would be amenable to a stay just in regards to my client or, as I said sort of towards the end of my letter, there are other 6 alternatives that, you know, I think I would view as 7 intermediate steps. For example, bifurcation of 8 discovery on the statute of limitations issue, for 9 example, if that were something the Court felt were 10 appropriate, or a stay on party depositions until 11 later in the discovery process to see where the claims 12 program and the criminal investigation end up. And 13 certainly with regard to the motion to dismiss, that 14 should be, I would think, decided at some point.¶
15 THE COURT: I might consider, because there's 16 a lot to do in this case, I might consider putting a 17 hold on Ms. Maxwell having to make statements. So 18 either responding to (indiscernible) interrogatories 19 or being deposed because of Fifth Amendment issues. 20 Because it may be that she ends up the subjection of 23. prosecution, even if she's not yet, and because there 22 are other things that can meanwhile be going forward. 23 If we put her deposition further down the pike, maybe 24 we'll have greater clarity on that before that issue 25 actually comes to the floor.¶
2 I'm also thinking that there are other¶
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interests besides hers in this case, there's¶
plaintiffs' interests, and I'm sure that although your¶
point is well taken that it's not that likely that¶
documents will now not be preserved within these few¶
months as opposed to not having been preserved over¶
the years, I'm sure plaintiff doesn't want to hear¶
that after all of these years she must wait more time¶
in order to have what she considers to be serious¶
wrongs redressed. So, you know, the factors can cut¶
in more than one direction.¶
So right now I'm not inclined to stay the¶
whole case but I am inclined to keep one eye on¶
settlement, to keep one eye, I'm not sure how many¶
eyes I have, to keep an eye on any criminal¶
investigation. I'm asking to have updates if there are¶
charges filed. And maybe put some things, you know,¶
more at the front end of the discovery period and some¶
things more at the back end of the discovery period.¶
And I am willing to move the dates out some to¶
accommodate the parties, if the parties are engaged in¶
good faith discussions, if there's a desire to¶
conserve resources because it looks like the claims¶
program is, in fact, going forward. I'm willing to do¶
2 that, I've done that in other cases, I've stayed other 3 cases, I've extended deadlines in other cases, I don't 4 really want to see, you know, resources going to 5 litigation if it's not necessary, but right now I'm 6 not inclined to have a complete stay of everything.¶
7 Ms. Menninger, what would be your reaction to 8 saying hold off on anything that could be in the 9 category of affirmative statements made by Ms. Maxwell 10 for now and having other discovery go forward.¶
11 MS. MENNINGER: It does address, this is Ms. 12 Menninger, Laura Menninger, it does address many of my 13 concerns. I would say, you know, the costs related to 14 the broad discovery demands that were propounded, 15 written discovery requests and the like are still of a 16 concern to me. As I mentioned, we've been asked for 17 every calendar she's had for the last 24 years, and 18 every Amazon account she's ever used for the last 24 19 years. So, you know --¶
20 THE COURT: That sounds to me, that sounds to 21 me, again, like you need to have a discussion with 22 plaintiffs' counsel, and plaintiffs' counsel, it 23 sounds like you need to have a discussion with Ms. 24 Menninger about what you really need, why you really 25 need it, how it can be done in a way that's¶
2 manageable, with no absolute yes's and no absolute 3 no's with respect to those sorts of requests. You 4 know, it may be that there's something about Amazon 5 accounts that's really critical, and you can explain 6 that. Maybe there's something else that's not really 7 critical and you can, you know, bend a bit on it, you 8 know. So you need to have that kind of discussion to 9 keep, you know, to keep discovery tailored to the case 10 and proportionate to the needs of the case. That has 11 to do with timeframe, that has to do with the scope of 12 what's being claimed in a particular case, and to some 13 extent, it has to do with Mr. Epstein's accused 14 conduct over time. So you're going to have to try to 15 have that conversation and try to balance it, and if 16 you can't, then I will.¶
17 MS. MENNINGER: I appreciate that --¶
18 MS. MCCAWLEY: Your Honor, this is --¶
19 THE COURT: Yes?¶
20 MS. MCCAWLEY: Sorry, this is Ms. McCawley, 21 can I address what's been raised?¶
22 THE COURT: Absolutely.¶
23 MS. MCCAWLEY: Thank you.¶
24 THE COURT: Absolutely, go ahead.¶
25 MS. MCCAWLEY: So with respect to the motion¶
2 to stay that Ms. Maxwell's proposing, one of the bases 3 is that she's filed a motion to dismiss. Judge 4 Schofield held a pre-motion conference with respect to 5 that --¶
6 THE COURT: Hold on. Hold on one moment, 7 please.¶
8 MS. MCCAWLEY: Sure.¶
9 THE COURT: Do I still have, I know I still 10 have Ms. McCawley, do I still have Ms. Menninger?¶
11 MS. MENNINGER: Yes, Your Honor.¶
12 THE COURT: Do I still have Mr. Moskowitz?¶
13 MR. MOSKOWITZ: Yes, Your Honor.¶
14 THE COURT: Did anyone join us who's another 15 attorney? Okay, hopefully we didn't lose anybody, if 16 anybody joined from the public or press, welcome, 17 please keep your phone on mute. Okay, go ahead, you 18 were saying, Ms. McCawley?¶
19 MS. MCCAWLEY: Yes, so we did hold a, in front 20 of Judge Schofield, a pre-motion conference on Ms. 21 Maxwell's motion to dismiss. As Judge Schofield did 22 with the estate, she discouraged Ms. Maxwell from 23 filing the motion to dismiss, giving her preliminary 24 views that they, the arguments that she was putting 25 forth were not meritorious. Ms. Maxwell insisted on¶
2 filing the motion to dismiss and has done that now, 3 just this week. So in my view that is both against any 4 sort of stay based on the motion to dismiss because 5 the district judge has set forth her views with 6 respect to that, at least as an initial matter.¶
7 With respect to the case law, Your Honor is 8 correct, the case law in New York is clear that unless 9 there's an indictment put forward, which there has not 10 been, it doesn't allow somebody in a civil case to 11 stay the case on the basis of a possible 12 investigation. With respect to Your Honor's 13 statements about the investigation and potentially 14 allowing Ms. Maxwell to not have to make statements in 15 the civil action, the concern I have there is that we 16 have no indication of any timeframe with respect to 17 the Southern District of New York, how long the 18 investigation could go on or will go on, or anything 19 of that nature.¶
20 So the concern for me is Ms. Maxwell, as we 21 have alleged, worked in concert with Epstein to abuse 22 my client. We brought those claims under the Child 23 Victims Act as we're allowed to do because she was a 24 minor, and to not be able to get discovery and ask Ms. 25 Maxwell questions, and get responses, and keep the¶
2 3 4 case moving forward puts us in handcuffs with respect to being able to establish our claims. Because as Your Honor has seen from the complaint, the 5 allegations are that they worked together hand in hand 6 with respect to the abuse of . So I would 7 have concerns about some form of that kind of a path 8 for defendant Maxwell in the case at this time until 9 there is a criminal indictment on this (indiscernible) 10 forward.¶
11 THE COURT: All right, let me just say a few 12 things about that. First of all, if the investigation 13 is going on here in New York or, for that matter, 14 wherever it may be going on, because what we have in 15 New York is not only in New York with respect to 16 Covid-19, the grand jury process is understandably 17 delayed because it's very difficult to have jurors 18 convene. And so there may be additional time before 19 any cases being investigated is indicted. And so we 20 just have to recognize that we're in somewhat unusual 23. circumstances.¶
22 The second thing is that any stay that I might 23 put in place with respect to any aspect of the claims 24 against Ms. Maxwell would be temporary and would be 25 revisited. I would not allow it to drag on¶
2 indefinitely but in a case where some things can be 3 done to move the case forward and the case is not 4 completely stalled, I don't see any harm in putting 5 some things a little bit further down the road.¶
6 The third thing I'll say, and this is also an 7 unusual circumstance, because of the potential of this 8 claims process in which plaintiff may well participate 9 and which may well get off the ground soon, and if it 10 does, I'm not sure whether it would moot claims 11 against Ms. Maxwell or not, but it might. And as you 12 balance the factors, you have this situation where we 13 may know in the relatively near future whether 14 plaintiff is actively participating in a claims 15 process, whether it looks like it is going to resolve 16 the claims, and we may never have to get to the point 17 where we jeopardize, potentially jeopardize somebody's 18 Fifth Amendment rights.¶
19 And so I might be inclined to do this, to say, 20 look, you're going to carry on with discovery in the 21 case after conference on all kinds of things to try to 22 keep costs under control and try to focus on what's 23 most important. I'll extend deadlines out if you would 24 like, if you're feeling pressure from that. We'll 25 hold off on, not on production of documents from Ms.¶
2 Maxwell, but on statements that she makes, whether 3 sworn statements and interrogatories or in deposition, 4 we'll put that a little bit further down. You'll give 5 me a status report regarding the prospect of 6 settlement and we'll take . And with respect to 7 holding off on interrogatory responses or depositions 8 by Ms. Maxwell, that will not be a permanent 9 situation, that will be revisited, and if time is 10 stretching out too far and if there is no indictment, 11 then I make take further briefing on the subject and 12 I'll make a decision as to whether, in fact, that part 13 of the case should also go forward. But i will not let 14 it drag out indefinitely. That's my current thinking, 15 what say both of you on that?¶
16 MS. MENNINGER: Your Honor, this is Laura 17 Menninger, that would be, we would welcome that 18 ruling, Your Honor.¶
19 THE COURT: Plaintiff's side?¶
20 MS. MCCAWLEY: Yes, Your Honor, obviously we 21 disagree with that because we believe that it's 22 important to have Ms. Maxwell's participation in this 23 case, we had noticed her for deposition already and 24 that got moved because she, you know, the issues with 25 being able to be in person and things of that nature¶
2 we were trying to accommodate. So we are concerned¶
3 about there being extended delay and are concerned¶
4 about not being able to get information from her¶
5 through her testimony. We respect the Court's¶
6 concerns about her Fifth Amendment privilege but,¶
7 again, we would ask that if you going to be inclined¶
8 to do something like this, you tie it to a date like¶
9 the June 15th date or something along those lines so¶
10 that we're not in a position where she is able to take¶
11 depositions of all of our people and we are, you know,¶
12 handcuffed with respect to any discovery with respect¶
13 to Ms. Maxwell.¶
14 THE COURT: Like I said, I have no desire to¶
15 have this drag out. You know, if all things, if we¶
16 didn't have this potential claim process out there,¶
17 with a fairly soon, seemingly likely start date,¶
18 according to defendants, then I think the balance¶
19 would be different. Because I don't think the case law¶
20 in this circuit would generally support the stay when¶
21 there is no prosecution pending yet. But,¶
22 nonetheless, there are a number of factors that one¶
23 might look at on that and whether or not an indictment¶
24 is pending is only one of the factors. There are¶
25 several factors that could be relevant, including, and¶
2 I'm going to refer you to the Louis Vuitton Malletier 3 case, for the court reporter, L-O-U-I-S V-U-I-T-T-O-N 4 M-A-L-L-E-T-I-E-R, versus Ly USA, L-Y U-S-A, Inc. and 5 the case number is 676 F.3d 83 (2011). So the Second 6 Circuit noted that Courts often take a look at a 7 number of factors in deciding whether there should be 8 a stay, including the extent to which the issues in 9 the criminal case overlap with those presented in the 10 civil case. Here there would be, I assume, a very 11 strong overlap to the status of the case, including 12 whether the defendants have been indicted. So that's 13 a factor. Three, the private interests of the 14 plaintiff in proceeding expeditiously weighed against 15 the prejudice to plaintiffs caused by the delay. Here 16 I'm looking at the potential settlement process and 17 that, to me, is an unusual factor that suggests that, 18 you know, the plaintiff's interests may be divided 19 here in proceeding fast with this case when there is 20 potential settlement within the next few months 21 potentially available to plaintiff, and plaintiff may 22 go for that.¶
23 Another factor is the private interests of and 24 burden on the defendants. We do have an individual 25 here, we're not talking about the estate. And there¶
2 is somewhat more burden for discovery, there's the 3 4 5 6 7 8 9 interests of the Courts, the interest Court is not to have unnecessary litigation of the matters can be resolved amicably and not to have it stretch out forever, that's also in the interest of the Court. We also have this strange overlay of Covid-19 which affects the ability for criminal prosecutors to take matters to a grand jury.¶
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The public interest, I think the public interest would be well served by the claims process. If you look at this case in terms of there being a number of claimed victims, and that is something that I definitely am looking at and is weighing into my consideration as to how any and all of these cases should be litigated. And in several of the cases, which claims that are no more recent than the claims here, a lot of plaintiffs' counsel have agreed to stays or partial stays or holding off on certain things to conserve resources and allow that process to play out a bit. And I think that those are factors that are unusual in this case, this is a case by case specific analysis that has to be made as to whether there should be a stay.¶
25 So in this particular case at this particular¶
2 time with these particular circumstances, it seems to 3 me to make sense not to stay the case in the entirety, 4 to send counsel off to have the kind of good faith 5 conference you should have had before contacting me in 6 the first place, and that you should always have about 7 anything and everything as you try to work through 8 discovery issues. But to hold off on the most serious 9 of the issue with respect to Ms. Maxwell, which are 10 her constitutional rights and not forever, but at 11 least long enough to let us know whether the claims 12 process is likely to go forward, and I will revisit 13 it. And I will revisit it at intervals that are 14 reasonable and that does not put you in limbo where 15 you will never be able to get discovery from Ms. 16 Maxwell if this case proceeds.¶
17 All right, so let me ask straight out, are you 18 looking, under the circumstances I've described and 19 the way in which I would envision this, which is some 20 discovery going forward, good faith conference, report 21 to me by June 19 about the status, are you looking to 22 have me move out the discovery schedule at all and, if 23 so, by how long?¶
24 MS. MCCAWLEY: Your Honor, this is Sigrid 25 McCawley, would I be possible to have some time to¶
2 3 consider that? Right now the discovery deadline is set for July 10th I believe and I, of course, had 4 anticipated taking depositions throughout June and 5 into earlier July. So if I could have some time to 6 consider what that would look like and confer with the 7 other side, then if we can agree, maybe present 8 something to the Court with the timing of that.¶
9 THE COURT: Yes, I mean I'm not usually in the 10 habit of suggesting extensions, but I think here, 11 rather than be crunched with depositions and panicking 12 at the end of June or beginning of July, you know, 13 putting the thirty days on it to give you time to talk 14 through your issues, and for me to have fuller 15 briefing on the issue of a stay, should it come to 16 that, it might make sense to at least give you another 17 thirty.¶
18 MS. MCCAWLEY: That would be fine, Your Honor.¶
19 THE COURT: Mr. Moskowitz, do you want to say 20 anything?¶
- MR. MOSKOWITZ: Yeah, just very quickly, Your 22 Honor, I mean that thirty day initial extension and 23 further discussion makes perfect sense to us. I would 24 say you laid out, Your Honor laid out very compelling 25 reasons, one of which is unique to this action, but
2 the other is equally applied to the other actions that 3 we're here now before you on. So I would hope that we 4 can also discuss with Ms. McCawley, you know, keeping 5 the extensions in line for each case with those other 6 considerations in mind. That's something we'll 7 discuss.¶
8 And the only other thing I wanted to mention 9 is, which I didn't get a chance to mention earlier, is 10 that Ms. McCawley, you know, mentioned various 11 concerns about the program, that could be more 12 convincing from someone but for the fact that they 13 already stayed one of their client's actions in favor 14 of the program. So I just don't, it doesn't square 15 with us that those concerns are such that they can't 16 take the same reasoned approach in the other actions 17 when they found it reasonable for one of them already. 18 But other than that, I have nothing to add, Your 19 Honor.¶
20 THE COURT: Okay, so I'm going to ask for a 21 status report by June 19th. In that status report, I 22 not only want to hear about how discovery is going and 23 how settlement prospects are looking, I also want to 24 hear about further discussions with counsel for Ms. 25 Maxwell and the sort of mapping out of how the parties¶
2 would anticipate things moving further from that 3 point. And, you know, Ms. Maxwell, I'm permitting not 4 to respond to interrogatories and not to have her 5 deposition until the parties have had that chance to 6 confer, until I've had that status report, June 19", 7 until I hear again from counsel as to the next logical 8 way to proceed with that. And I'll kick out discovery 9 deadlines thirty days, which is modest, others I think 10 are going to be kicked out longer, you can do whatever 11 planning you do for depositions to be happening a 12 little bit farther down the road in July, and you'll 13 get back to me. And if need be, we'll have another 14 conference and we'll take in the next piece, okay? 15 All right, everybody?¶
16 MS. MCCAWLEY: Thank you, Your Honor.¶
17 THE COURT: Anything else before we end this 18 call? All right, let me just say one last thing, 19 which is I did record this call through the AT&T 20 conference system, but you also have a court reporter 21 on the call. You don't need to have a transcript made 22 from the telephone recording, and just be aware that 23 if there are two transcripts made, one through the 24 AT&T and one from the court reporter and there is any 25 discrepancy, the court reporter's transcript will be¶
2 the official transcript and will control, okay?¶
MS. MCCAWLEY: Thank you, Your Honor.¶
MR. MOSKOWITZ: Thank you, Your Honor.¶
THE COURT: All right, thank you, all. Take 6 care, everybody.¶
(Whereupon the matter is adjourned.)¶
3 CERTIFICATE¶
5 I, Carole Ludwig, certify that the foregoing 6 transcript of proceedings in the United States District 7 Court, Southern District of New York, et al. 8 versus Indyke, et al., Docket #19cv10475, was prepared using 9 PC-based transcription software and is a true and accurate 10 record of the proceedings.¶
13 Signature ea44.4 Zazde-or¶
14 Carole Ludwig¶
15 Date: May 29, 2020¶