UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , Plaintiff, v. DARREN K. INDYKE, ET AL., Defendants. Before: x 19 CV 10475 (LGS) New York, N.Y. March 5, 2020 11:20 a.m. HON. LORNA G. SCHOFIELD, District Judge ## APPEARANCES BOIES SCHILLER FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. MCCAWLEY SABINA NARIELLA TROUTMAN SANDERS LLP (NYC) Attorneys for Defendants Indyke/Kahn BY: BENNET J. MOSKOWITZ 4 5 6 Sigrid McCawley. I am here on behalf of the plaintiff, I am with the law firm of Boies Schiller Flexner. I have here with me my colleague, Sabina Nariella. 7 THE COURT: OK. Good morning. 8 MS. NARIELLA: Good morning. 9 MR. MOSKOWITZ: Good morning, your Honor. 10 11 12 Bennett Moskowitz, from Troutman Sanders. I represent Darren K. Indyke and Richard D. Kahn, and both sectors of the estate of Jeffrey Epstein. 13 THE COURT: Good morning. You may be seated. 14 15 16 17 I understand that Ghislaine Maxwell appeared yesterday through counsel but that was yesterday and so, she is not represented here, but I'd like to proceed with the conference in any event. 18 19 20 21 22 23 24 25 So, we're here for a premotion conference on a motion to dismiss. Just as a little background, I referred the case for pretrial supervision to Judge Freeman. There are many other cases involving Mr. Epstein's estate that are also before Judge Freeman but the dispositive motions have not been referred and I understand that defendants would like to bring a motion to dismiss. As I understand it, the principle argument is the statute of limitations argument. (Case called) MS. MCCAWLEY: Good morning, your Honor. 4 5 6 7 8 I guess what I'm trying to figure out is what is to be gained by filing it now? The reason I say that is because even if the claims are untimely -- and I don't know if they are the doctrines of equitable estoppel and equitable tolling could, nevertheless, save the claims and make them timely and that is very fact specific, or early in the case I presumed there will be factual issues around those questions and so, why get into a motion to dismiss now? 9 MR. MOSKOWITZ: Thank you, your Honor. 10 11 12 13 14 15 16 17 18 19 so, of course, anticipating the argument which you just referenced and was one of many made in response to our premotion letter that, well, hold on. We're alleging that there are equitable estoppel and therefore, you have to at least have discovery. Well, I've researched the issue and it's not always the case and it's not the case here. There are plenty of cases which I've briefed before other judges who are handling some of these other cases, including one of Boies Schiller's cases, a plain decision where the Court said, no, I've read the complaint. 20 21 22 23 24 25 The case law is very clear here. These are not mild doctrines. They require very compelling, exceptional circumstances. Here, they are not even alleged. And, actually, here as opposed to some of the others where I have to stop there and say they didn't allege that, I want to say the opposite. They allege that -- and I know as a matter of 4 5 6 7 8 9 10 judicial notice, the article they're talking about is a 2003 Vanity Fair article. They allege that back in 2003 the plaintiff went and told her story to Vanity Fair. Well, if she had the wherewith all to do that, I don't see how she could plausible claim now that she wasn't aware of her rights. She was sleeping on them, et cetera. It's certainly nothing that would toll them for the nearly two decades now that we're here dealing with. So, I do think this is a different kind of case, not the garden variety, II, we have to see what happened here, equitable estoppel. So, that's, one thing. 11 12 13 14 15 I am also very concerned about the scope of discovery as opposed to other counsel have taken a different track in these cases. I understand Boies Schiller has a somewhat different view that there could be, what I view is rather extensive discovery, and I'd like to take the opportunity 16 17 THE COURT: Let's not get into discovery just yet, if you don't mind. 18 MR. MOSKOWITZ: Sure. 19 20 THE COURT: Let me hear from the plaintiff on the equitable estoppel issue. 21 MS. MCCAWLEY: Thank you, your Honor. 22 23 24 25 Yes, if there were ever a case for equitable estoppel, it is this case. As you've probably learned from looking at the complaint, Jeffrey Epstein was a monster who perpetrated crimes for over 20 years against young females. Those crimes, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as we've alleged in the complaint, included death threats, intimidation, harassment, all of which go toward our claim that they should be equitably estopped from asserting the statute of limitations defenses. The Carelock case which we cite in our letter goes directly to this issue. It is this circumstance where equitable estoppel is most appropriate. And you are correct that discovery will bear on these issues, and at that later point -- THE COURT: -- specifically, what you will uncover in discovery or what the defendant will uncover in discovery that will inform the motion? MS. MCCAWLEY: Well, as you may not know because I know you are new to this case, but in the past when Jeffrey Epstein was alive he asserted his Fifth Amendment privilege. So, in any of those cases that have proceeded there was not discovery directly from the defendant. He can no longer avail himself of that privilege. So, we are now going to be embarking and finally getting the documents that would show his internal communications, whether they be with Maxwell, the other defendant, their collaborative scheme to intimidate and harass not only but her sister, , as well with these death threats back from 1995 on. So, this was an ongoing scheme to keep them quiet to make sure that they didn't talk, to make sure that they didn't bring claims, et 4 cetera. So, it's only now that these claims are timely, now that these women feel comfortable enough to be able to come forward to the Court. He's gone. He can't hurt them at this point and that's why we're here now. 5 6 7 8 9 10 THE COURT: OK. So, what I'm going to do is I am going to ask you to hold off on the motion to dismiss. I can't tell you not to file it but I would suggest that you hold off. If you do file it, I'm not going to decide it any time soon. I don't think it would be useful for you to file it in that case. So, I'd ask you just wait. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The one thing that I would like to discuss briefly is the issue of punitive damages. The defendant says that, first of all, it is quite early in the case to be talking about punitive damages. But the defendant says that as a matter of law, neither New Mexico, nor New York permits punitive damages against a tort feasor's estate. What I'd like the plaintiffs to do is just to take a look at the law. And if it seems as though that is quite clear, then just amend your complaint so that or even just write a letter at this point. You don't have to formally amend it because I don't want to revive the whole answer/motion process again. But just write a letter and file it saying what your position is with respect to punitive damages. And if you could do that within two weeks, that would be great. 25 MS. MCCAWLEY: Of course, your Honor. Thank you. THE COURT: And with respect to the discovery, that's 4 really all Judge Freeman's bailiwick. So, I'm not going to address that. 5 6 Is there anything else that is appropriate to address before me? No. 7 OK. Thank you. We are adjourned. a (Adjourned) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25