UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff, v. 15 Civ. 7433 (RWS) GHISLAINE MAXWELL, Defendant. Oral Argument Before: x New York, N.Y. April 5, 2017 12:10 p.m. HON. ROBERT W. SWEET, ## APPEARANCES BOIES, SCHILLER & FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. BY: J. , ESQ. , JAFFE, WEISSING, , FISTOS, LEHRMAN, P.L. Attorneys for Plaintiff HADDON, AND, P.0 Attorneys for Defendant BY: JEFFREY S . PAGLIUCA, ESQ. District Judge@@ 4 THE COURT: Hi. 5 6 MR. INDYKE: Your Honor, Darren Indyke again, general counsel for Mr. Epstein. 7 THE COURT: I'm sorry? 8 9 10 11 12 13 14 MR. INDYKE: My name is Darren Indyke, general counsel for Mr. Epstein. I do not litigate. We discussed that last time. Weinberg, who drafted the motion, was at Logan Airport this morning. Didn't get here on time. His flight was fogged in because of something at La Guardia. He is now on an 11 o'clock flight into JFK and is going to come directly from JFK to the court as soon as he gets here. 15 16 THE COURT: Let me ask you, what is Epstein's residence? 17 18 MR. INDYKE: What is Epstein's -- he is a Virgin Islands resident. 19 THE COURT: I beg your pardon? 20 MR. INDYKE: A Virgin Islands resident. 21 22 THE COURT: If that's true, then he is beyond my reach. Correct? 23 MR. INDYKE: We do maintain that, yes. 24 25 MR. : Your Honor, can we be heard on that issue? (In open court) THE COURT: OK. Epstein? MR. : Yes. Good morning, your Honor. THE COURT: Sure. 4 5 While Mr. Epstein owns his own island and calls that his domicile, he does have a residence in New York City. He does regularly conduct business in New York City. 6 7 THE COURT: That doesn't do it under the rule, does it? 8 9 10 11 12 13 MR. : Under Rule 45, it's where you reside, where you regularly conduct business. And he regularly conducts business in New York. In fact, as Mr. Indyke just indicated, that is his primary business affairs attorney, who has been in charge of his business affairs for many years. Mr. Epstein employs numerous employees in New York City. 14 (Pause) 15 16 17 MR. : Your Honor, additionally, Mr. Epstein has a home in New York City, a very large townhouse, a 50,000 square foot townhouse, where he employs many employees there. 18 19 20 21 THE COURT: But having a home in New York doesn't subject him to the jurisdiction, I mean, a house in New York. If that were the case, we would be in a lot of trouble, wouldn't we? 22 23 24 OK. There is an issue. I don't have any facts except what I've just been told with respect to his residence, employed, regularly transacts business. 25 MR. : Yes, your Honor. MR. : Brad on behalf of the plaintiff. THE COURT: So "regularly transacts business," we don't have any facts, which is not to say that you're not correct. 4 5 MR. : Your Honor, that's why I was raising the point about his home and who he employs. 6 THE COURT: No, no, no. I hear you. 7 MR. : I understand. 8 9 THE COURT: But I don't have a piece of paper that is any evidence of that. 10 11 12 MR. : The point that I was trying to reach was, we can't ask Mr. Epstein these questions because he invokes the Fifth. 13 14 15 16 17 THE COURT: I understand. Good Lord, I understand that. I'm just simply saying, I don't have any facts on which I can say that he regularly transacts business here. I don't have any facts. I hear what you say. Thanks. But that's lawyer talk, and I don't have any facts. 18 19 20 21 22 OK. Well, I think I understand the problem. Tell him I'll take the motion on submission. I've had enough of this guy and his airplanes and his being late. We put it over at his request. If he's fogged in Logan, I'm fogged in New York. So what can I say. 23 24 MR. INDYKE: Your Honor, he is actually on his way to the -- he's on his way now. 25 THE COURT: Well, of course he's on his way. Where? 4 5 THE COURT: If he shows up before we're finished, I'll hear him. OK? 6 MR. INDYKE: Thank you, your Honor. 7 8 THE COURT: All right. Now what's next? Where are we? 9 10 11 12 13 MS. McCAWLEY: Your Honor, I think there is one motion that is pending that we've pushed off, it's the defendant's motion, to this day, because it deals with depositions in general that they're trying to exclude. So it may be a good starting point. Jeff, if you want to take the in toto motion? 14 15 16 17 MR. PAGLIUCA: Sure. That's probably the sensible starting point because it, again, deals with them trying to get rid of witnesses in their entirety, and, again, we waited until today to do that. 18 THE COURT: Yes. 19 20 21 22 23 24 25 MR. PAGLIUCA: Your Honor, the motion that we are talking about is captioned "Defendant's Motion in Limine to Exclude In Toto Certain Depositions Designated by Plaintiff for Use at Trial." We are talking specifically about four witnesses. The first relates to Mr. Epstein, which I understand we don't want to talk about anymore today, so I will leave that, having heard your Honor on that issue. In an airplane? MR. INDYKE: The airplane left at 11, so he's probably -- THE COURT: Well, I was just dealing with the subpoena issue. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PAGLIUCA: All right. Then I'm happy to talk about it, your Honor. It does relate in part to what we are talking about. And I will more narrowly focus it as a Rule 32 issue, as opposed to a subpoena issue. The issue relates to the use of depositions at trial, which, in my view, is governed by Rule 32 of the Rules of Civil Procedure. And those rules are clear with regard to depositions as to unavailability of witness. And then we talk about the requirements that, whether they're dead, more than a hundred miles away, illness, age, infirmity, etc. And in my view, there is no unavailability under Rule 32 for Mr. Epstein in this particular case. There seems to be an attempt, I think, to -- or a misunderstanding of sort of conflating Rule 32 and Rule 804. Rule 804 of course deals with unavailability as defined under the Federal Rules of Evidence for hearsay purposes, which is different than Rule 32, as it relates to use of a deposition in a trial. And so I don't think we can take Rule 804 and then say that's the definition of unavailability. Rule 804 unavailability applies to many things, and it can apply to written statements. It can apply to testimony in trial. But Rule 32 of the rules of civil procedure deals specifically with depositions. And in my view, that has not 4 5 6 7 8 9 10 11 12 13 14 15 16 Mr. Rizzo lives here in New York. He was deposed in New York. And there has been no showing, and I don't believe there can be any showing, that he is unavailable under Rule 32. I understood from the response filed by the plaintiff that they were checking with Mr. Rizzo's lawyer to see what his status was. In my view that's not sufficient for this discussion today. Unavailability under Rule 32 would require something to happen. Mr. Rizzo would be sick or dead, something like that. Simply saying we're checking with his lawyer doesn't satisfy the requirements of Rule 32. And so I don't understand what their position is, frankly. We took a discovery deposition of Mr. Rizzo here in New York within a hundred miles of this courthouse. Mr. Rizzo, if he's going to testify, should show up. 17 18 19 20 21 22 23 24 25 What I'm afraid of, your Honor, is that there -- and I'm not accusing, I'm just afraid, because, you know, call it spider sense or something -- what can happen is, we get to trial and then someone says, II, gee, he went on vacation, and so now he's more than a hundred miles away and we're going to use the deposition transcript. That's not sufficient unavailability. The party that's attempting to establish unavailability has to show some good-faith effort to subpoena the witness or get the witness here. As far as I know, been met as it relates to Mr. Epstein. Mr. Rizzo is the second witness, your Honor. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Rizzo lives here in New York, and if he's going to testify, he should testify in person. The third witness that we're talking about here is Dr. Esplin. The Court may recall that Dr. Esplin is a rebuttal expert designated by the defense in this case specifically relating to what we call the vouching opinions of Dr. Kliman and Mr. Coonan, Professor Coonan. What happened with Dr. Esplin is, he was designated for a very narrow purpose and he was deposed for some seven hours. Most of the deposition by plaintiff's counsel was far outside of the designated purpose, and there were repeated objections during the course of the deposition -- you know, this is not what he was hired for, he hasn't looked at that, he doesn't have an opinion about that - and now they're trying to designate a rebuttal expert in their case in chief to talk about opinions that he wasn't hired to offer and didn't opine on in the first instance. The briefing, I think, is sufficient on this, your Honor, that, here, it's not appropriate designate a defense rebuttal on these kinds of topics. And so I don't think that they should be allowed to use that testimony, which is objectionable, frankly, as rebuttal testimony. The next witness, your Honor, is was deposed in Florida. And the Court basically said, I don't remember anything about any of this, and essentially didn't answer any substantive questions 4 5 6 7 8 9 10 11 The colloquy that has been provided to the Court as part of briefing establishes that was subpoenaed to this deposition by the plaintiff. She appeared with her counsel, Mr. Josephsberg, who represented her in the 102 case that was filed against Mr. Epstein, many years ago. sat down, essentially -- I'm paraphrasing -- said, I've spent years forgetting all of this, I've spent lots of time in therapy forgetting all of this, I'm not going to remember any of this, and basically refused to answer questions for whatever reasons. 12 13 14 15 16 17 18 19 20 21 Mr. Josephsberg, her lawyer, made a proffer during this deposition reaffirming that the witness didn't remember anything and wasn't going to testify about anything. Mr. plunked down what he says is her -- a transcript of the statement she gave to the police. She didn't look at it at all, and that's part of the record in this case; the lawyer said it and she said it: I didn't look at it. She didn't turn the page. Mr. said something like, isn't the thing you told the police in 2006 true. She said yes. And that's basically the deposition. 22 23 24 25 We have moved to exclude that in its entirety because, you know, in part there really is no testimony here. There is no establishment of any actual personal knowledge by this particular witness. There has been no foundation for either during the deposition. impeachment or refreshing recollection. This wasn't a 4 5 situation where the questioner then said, well, I'm going to show you line 3, paragraph 5, or did you not say that. I'm going to show you this, that, or the other thing. That never happened during the course of this deposition. 6 7 8 9 So you have a witness sitting there, looking at nothing, and now there is going to be this attempt, I think, to introduce what I view as a hearsay document without foundation into this trial through that deposition. 10 That, I think, primarily deals -- 11 12 13 THE COURT: Through ? You're suggesting that the plaintiff will seek to introduce the police statement through 14 15 16 17 MR. PAGLIUCA: Yes, or Recarey. I'm not sure which one. But it doesn't change the quality of it being hearsay. You can't wave a over this thing and say this is now not hearsay. 18 19 20 THE COURT: If the statement gets in, if this statement gets in, then the deposition would be admissible, because she has said, yes, that's true. 21 22 23 24 25 MR. PAGLIUCA: This is the problem, your Honor. This is the nuance that I think I'm trying to get to, which you have narrowly focused now. There is a multiple-layer issue here under the rules of evidence. The first is this. She had pieces of paper in front of her, so I don't know how long the 4 MR. PAGLIUCA: Right. She never looked at it, not once. She didn't read it. 5 THE COURT: Well, but she said that it was true. 6 7 MR. PAGLIUCA: No, no, no, no. The question was, is what you told the police in 2006 true, words to that effect. 8 THE COURT: II. 9 10 11 12 13 14 MR. PAGLIUCA: Not, is this the statement you gave to the police and is the contents of this statement true. There was a very vague and generic question about conversations with the police. And by the way, she talked with the police more than one time. And so there's no specificity about what she is referring to in that context. That's the first issue. 15 16 17 18 19 20 The second issue is -- we talked about this the last time we were in court -- that particular transcript is not a police record. That's the other problem here. That particular transcript, Detective Recarey testified about. And he said, I don't know what this is, it wasn't prepared by my department, I've never looked at it. 21 22 And so whatever this document is has not been authenticated by anyone. That's the first problem. 23 24 25 And then it gets in front of this witness who doesn't look at it and doesn't read it and makes this blanket statement. statement is. THE COURT: Whatever. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So there is no foundation or establishment that this is a prior recollection recorded or any of the requirements under the 800 series of rules that deals with hearsay. So there is no foundation for any of this. THE COURT: OK. Thank you. MR. PAGLIUCA: Finally, then, your Honor, we're talking about Mr. Rodriguez and his two depositions that occurred in 2009. This is a bit of an extended discussion, I think, your Honor. I need to set the stage here a little bit with regard to Mr. Rodriguez and this deposition testimony. THE COURT: Well, how does it get in? It's not in this case. MR. PAGLIUCA: Exactly. That's my point exactly. You've cut right to the heart of this. They say, your Honor, their argument is that, in spite of Rule 32, that somehow there was -- that Mr. Epstein's lawyer, in this 2009 deposition, is the predecessor in interest to Ms. Maxwell, and therefore, as a predecessor in interest, it is admissible under Rule 804. That's their position. THE COURT: What do they have to show to establish that? MR. PAGLIUCA: Right. There are a couple of cases on this issue, your Honor. What they have to show is what they can't show. 4 5 MR. PAGLIUCA: Yes. Well, there were -- the answer is yes. There were a number of cases against Mr. Epstein. There was a series of Jane Doe cases. 6 7 THE COURT: That arose out of the nonprosecution agreement and all of that. 8 MR. PAGLIUCA: Exactly. 9 10 11 So, your Honor, if I could approach, I wanted to talk about the nonprosecution agreement and why the nonprosecution agreement, I think, ends this discussion. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In order to be aligned as a predecessor in interest, the proponent of the evidence has to show essentially that whoever is there at the deposition has the exact same motivation to cross-examine, to develop the testimony, as person that you're trying to use it against in this case. the If you look at this, what I just handed you, your Honor, and we go to paragraph 8, which is found on page 4 of this document, 7 and 8, part of Mr. Epstein's agreement in this nonprosecution deal is that the government gives Mr. Epstein a list of who they say are victims of Epstein. Epstein agrees to confess liability and damages in connection with these litigations, your Honor. That's paragraph 7 and paragraph 8. So going into these depositions, Mr. Epstein is rolling over and saying, I'm not contesting liability, and I'm not contesting damages. THE COURT: The case in which he was deposed was one of the cases against Epstein? 4 5 6 7 8 9 10 11 12 13 14 15 16 17 So how then, how then can Mr. Epstein's lawyer be in a position to be aligned or defend Ms. Maxwell's interests in 2009? Ms. Maxwell isn't a party to this litigation. She's not named as a defendant. She's not represented by counsel. There is no agreement with her and Epstein that would allow for Epstein to do anything to represent her in this deposition. There's no indemnification agreement. There's no identity of counsel. None of these things apply at all. And Mr. Epstein, who has agreed to be liable under his deal, in which Ms. Maxwell is not mentioned, by the way -- her name did not appear in this nonprosecution agreement -- shows up, I don't know why, since he has confessed liability and damages, and he has absolutely no incentive to cross-examine Mr. Rodriguez about anything. He's already agreed that he's responsible and he's going to pay money. So there is no effort to do anything on Ms. Maxwell's behalf. 18 19 20 21 22 23 24 25 This is, when you think about it logically, had Ms. Maxwell been named as a defendant in that action, she would have had separate counsel, because her interests are not aligned with Epstein in these matters. She would have had the opportunity to cross-examine this witness. And she would have had the opportunity to develop her own evidence separate and apart from Epstein. And the cross-examination of Mr. Rodriguez would have gone something like this, your Honor: Well, isn't That's paragraphs 7 and 8. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it true that Epstein did those things, isn't it true that Epstein was the guy that did whatever it is that we're talking about, isn't it true that Maxwell did not have anything to do with X, Y, and Z. None of these questions could be asked by Mr. Epstein's lawyer because there would be an obvious conflict of interest between those two positions. There is one case that the plaintiffs cite for this proposition that there is an identity of interests, and that is, they cite a Third Circuit Court of Appeals case Lloyd v. American Export Lines Incorporated, found at 580 F.2d 1179. This is an interesting case, your Honor, and it highlights why there is no identity of interest in this case. So first let me start with, the Third Circuit is not the Second Circuit, as you well know, your Honor. This 1978 case is a pretty complicated fact pattern, your Honor, that involved a fight on a ship in Yokohama, Japan. So two sailors on this ship got into a fight, allegedly, and there was an action brought first in a Coast Guard proceeding, apparently akin to some sort of Coast Guard court-martial proceeding, and in that case, the Coast Guard finder of fact, in sort of a trial, found against Mr. who is the third-party defendant in this case. So both, the two seamen, Lloyd and, end up suing the ship owner and have these competing claims. Lloyd is saying, I didn't assault, and is saying, Lloyd assaulted me. And both of them are saying that the ship owner is liable because 4 5 6 7 8 9 10 11 Mr. Lloyd doesn't show up in the Third Circuit -- I guess in New Jersey -- no, Pennsylvania. Doesn't show up in Pennsylvania for this trial. And so Mr. is the only person who testifies, and then wins, because Lloyd is not there, and wins against the ship company. It goes up on appeal, and the American Export Lines, the company, said, wait a minute, that's not fair because we want to introduce Lloyd's testimony from the trial to show that Lloyd says he didn't assault . So that's sort of the backdrop to this. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Third Circuit Court of Appeals said, yeah, that's not fair, that gets to say whatever he wants to say and there's directly contradictory testimony against in this Coast Guard hearing, so we're going to say for a variety of reasons that it comes in. There is a, what I would call a concurring/dissenting opinion by then-District Court Judge Stern. And he actually says, you know, this is not a predecessor-in-interest case, in his part of the opinion. And what he does then is he actually cites to the Second Circuit law on this and has to go back to 1900 for the case Metropolitan State RY Co., and I couldn't figure out what "RY" stands for, v. Gumby. And that's at 99 F. 192. And this Gumby case is still good law and sort of sets the Second Circuit apart from the Third Circuit with regard to these issues, they're negligent and they have an unseaworthy ship. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 because the Second Circuit in the Gumby decision takes a much more conservative view of what it means to be a predecessor in interest. And this Gumby case has been cited by other courts for a number of years and essentially says, no, this is not just simply, maybe you guys have something in common here. A predecessor in interest is, I die, and I am the predecessor in interest in my estate, or I am in privity of contract with someone, and so therefore I'm the predecessor in interest; a company bought my company and so the depositions in that litigation are therefore admissible against the third or the fourth company because these are all predecessors in interest, not, Mr. Epstein signed a nonprosecution agreement that required him to confess liability and damages and therefore, ten years later, my client has to eat this deposition. That's not a predecessor in interest. There are a lot of things I could call that, but predecessor in interest wouldn't be one of them, your Honor. 18 19 20 21 22 23 24 25 They also argue, your Honor, that somehow Mr. Rodriguez's statements are reliable and therefore should be admitted under the residual hearsay rule. Let me remind you again, your Honor, this is Mr. Rodriguez, who either committed perjury during this deposition that they are saying is so reliable or manufactured evidence after the fact. You can't have it both ways. He was asked questions about the book that we talked about in court here, during his deposition, and he 4 5 6 7 said he had no such document, and then called someone, Mr. most likely, and said, hey, I'm going to sell you this thing for \$50,000, after which he was arrested and prosecuted, and, the day of his change of plea hearing, then goes to Miami and gets arrested for 922(g) charges for possessing multiple -- multiple, dozens -- of weapons by a convicted felon. 8 9 So this is the foundation upon which this reliability, according to the plaintiff, is established, which, it's not. 10 11 12 13 I think that's all of the witnesses that relate to this particular motion, your Honor. And so for all of the reasons, we ask that you grant this motion and exclude these depositions in their entirety. 14 15 MS. McCAWLEY: Thank you, your Honor. May I be heard? It's Sigrid McCawley on behalf of . 16 17 18 19 20 21 22 23 24 25 A couple of these issues, I think, are pretty easy to deal with out of the box. As an initial matter, your Honor, you knew you were here today to talk about whether Mr. Epstein will show up pursuant to his trial subpoena. In an abundance of caution because multiple witnesses in this case have been evasive, we designated his testimony in case he doesn't show up and in case we can't compel him to be here pending your decision. We want him here in person, obviously. We believe that he falls within those rules and should have to be here in person. But in an abundance of caution we've designated his 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. The defendants have argued that he is available, he should be here as well. So we're on the same page with respect to that. But if not, we have designated his testimony. And that's -- they were quibbling over our designating that testimony. We did it as a fallback in case there is an issue with him being compelled to be here at trial. THE COURT: One of the things that he's advancing, regrettably not here at the moment, but is his Fifth Amendment privilege. And am I not correct that there are a number of decisions that say it's up to me to decide whether or not the exercise of Fifth Amendment privilege comes in directly or by deposition? MS. McCAWLEY: I believe that's correct, your Honor. We obviously -- there's been a number of motions pending with respect to Mr. Epstein and the adverse inference with respect to his taking his Fifth Amendment right, and you heard from my wonderful colleague, Mr. Cassell, who argued last week about the adverse inference and LiButti factors with respect to his testimony coming in. So with respect to whether he is here in person versus deposition, like I said, in an abundance of caution, we've done both; we have compelled him to try to subpoena him here in person as well as designating his testimony. We do believe that, if he were on the stand, we would have the ability to ask him those questions. For example, your 4 5 6 Honor compelled him to produce, you'll remember, pursuant to this subpoena, the pictures, which were no. 5 of that subpoena. We have not been able to ask him questions about that at this time because that was ruled on after we were able to take his deposition. So we would like to have to have him here in person and be able to have -- 7 THE COURT: Have any pictures been produced? 8 9 10 11 MS. McCAWLEY: They have not, your Honor, of course. I mean, he is not -- obviously they're not here either. But if we have the power to do that, we would like to have him here in person. 12 So that's with respect to Epstein. 13 14 15 With Mr. Rizzo, we answered in our response, he will be here. He is within the hundred-mile jurisdiction. So Mr. Rizzo we again designate. 16 THE COURT: So that's not a question. 17 MS. McCAWLEY: Right, exactly. 18 19 20 21 Mr. Esplin, we designated him in case they pulled him as an expert, so we designated that testimony. They have said that they're going to have Mr. Esplin here at trial. So that is not an issue anymore. 22 23 24 25 I would like to address the more poignant issues, and that is with respect to . With all due respect to my colleague, the deposition, which I would like to hand up to your Honor, has 70 pages of substantive testimony from 4 She was 15 years old at the time she was recruited in this circumstance, in the same exact manner that my client was recruited. So I would like to just pass that up so your Honor can consider that during my argument. 5 May I approach? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, your Honor, the defendant would love to have you believe that walked into this deposition and didn't say anything. That is not the case. You can view it with your own eyes in the testimony that she has given. Was she apprehensive? Absolutely. Was she unhappy about having to talk about this circumstance again? Absolutely. Did she say everything in my police statement is correct? Absolutely. So that is in her deposition. But she also gives substantive testimony, very substantive testimony. I would like to direct your attention to paragraph at page 25. She starts to talk about how she was recruited. She was brought into the bedroom under the guise of a massage. She was abused by Epstein during that time. She was asked by him and others to bring friends over of similar high school age. She was introduced to Nadia, had to participate in group sex in a similar manner that my client was subjected to. She was there over a hundred times during this time period. She was brought in by people who are associated with the defendant in this case because the defendant, as you'll recall when you've heard Tony testimony, was asked to bring young girls to the house. These 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 young girls then brought to the house. So there is a chain of events directly linked to the defendant in this case. Her testimony, they're trying to get rid of it because it's so poignant, your Honor. It goes to the exact issues in this case. Unfortunately, she's in Florida. We can't compel her to be here. But we do have sworn deposition testimony by her. And most importantly, at page 54 of 57, she testifies that Epstein intimidated her, that his folks tried to get her not to talk, not to cooperate with the police, which is very similar to a number of other witnesses in this case. So this testimony is very powerful. The jury should be able to hear this, your Honor. There is no reason for it to be excluded. It's substantive. Again, was she apprehensive? Yes. With respect to her -- and they've made arguments with respect to the questions being leading, your Honor. We cite you to U.S. v. . When you have a witness that's a sexual abuse victim of this type, you're entitled to ask leading questions in order to solicit the response. That's 520 F.3d 867. And that is a similar circumstance where, when a witness is in a circumstance where they have been abused and they are apprehensive and they are considered an adverse witness, at that point you can ask leading questions to solicit that testimony. So, your Honor, she is a very important witness in 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this case, again because her circumstances are so substantially similar to that of my client. And there is absolutely no valid reason to be excluding her testimony. With respect to the police report that she was asked about, it was her statement, her police statement that was shown to her during that deposition. She was given the statement. She testified, the statement is correct, my recollection, so it's recorded recollection there, at the time in 2011. And that's at page 7. She states that, back from November 21, 2005 when she provided that sworn statement, that everything in that statement is correct. But then, she didn't just stop there, your Honor. Again, it's 60 pages of deposition. She gave substantive testimony reiterating what happened to her during her time period with Epstein, again, facts analogous to what happened to my client. So, your Honor, her testimony is substantive. There is absolutely no reason to be keeping it out in any way. And we submit that it should be before the jury in this case. And, again, I pointed you to some of those key pages. But really from page about 20 back is all substantive testimony in that deposition. Now, I would like to move, if your Honor doesn't have any questions with respect to, I would like to move on to Alfredo Rodriguez. Obviously Alfredo Rodriguez is deceased. If he was not, we would want to have him here. Unfortunately we cannot. Why is he important? Rodriguez is 4 5 6 7 8 9 10 11 12 important because he testified that Maxwell, in this time period, which was around the 2004, 2005 time period, with as his direct supervisor at the home. So that contradicts directly what Maxwell has said in her sworn testimony. So he testified -- this is back years and years ago -- Who was your supervisor? Who did you report directly to at all times, day, night, etc.? It was Maxwell, the defendant in this case. He worked at the Palm Beach house for several years. He testified that Maxwell lived there. He testified regarding her computer, direct contradiction to what she has testified, that there were nude photographs on her computer, things of that nature. 13 14 15 16 17 18 He testified that he was directed to go to a high school to drop off flowers to a high school student as part of this massage recruiting scheme. He testified that Maxwell was on a bank account for the Palm Beach house at the time he was, they were jointly able to write checks, etc., etc. And he testified regarding the numerous under-aged girls there. 19 20 21 22 Finally, at page 172 of his testimony, he testified that Maxwell threatened him. When he left his employment, she said, if you talk, you will be in trouble. And that's in his testimony at page 172. 23 24 25 So, your Honor, we believe that Rodriguez is a highly important witness. Yes, he is deceased. He is not here. I understand that. They have called his credibility in question 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by saying, II, he was arrested for stealing a black book. We stipulate to that. We don't mind the jury knowing he stole a black book. He was arrested for it. But that doesn't mean his testimony regarding his employment and what he was required to do, etc., shouldn't come into evidence. Again, if we could call him we would. So you heard a lot about the seaman case, which is that Third Circuit case that we talked about. But more important than seaman, which I do think is on point there, that case, the 804(b)(1) rule is explicitly on point on this issue. So it addresses former testimony, as we know. And that rule says that former testimony in this situation, when someone is unavailable, which the deceased qualifies as, can be offered against a party who in a civil case was a predecessor in interest, had an opportunity or similar motive to develop it by direct cross or redirect examination. So you've heard from Mr. Pagliuca, II, well, Maxwell's lawyers weren't there, she wouldn't have had any incentive, she would have a different incentive than Epstein in that case. So these are the Jane Doe cases, as your Honor knows. And the purpose of those cases, of course Epstein was trying to call into question the witnesses. So the point was to show that the witnesses were not telling the truth. Rodriguez is being deposed in that case. So their incentive is to show that he's wrong. And what do they do? Epstein's lawyer spends time in 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that deposition cross-examining Alfredo Rodriguez specifically about the testimony relating to Maxwell. So there is cross-examination with respect to the claims of what was on Maxwell's computer, etc. And I will point you to that. That's at pages, you're going to see that at pages 364 through 369, 375 through 376, and 416 to 417. So while they say, II, there was no incentive to cross-examine with respect to Maxwell, they certainly were doing it at the deposition. And they are aligned, your Honor. The point is to try to take down the witnesses and prove that this did not happen. So in that respect, your Honor, they are aligned. With respect to the case law on this, I cite to the U.S. Carnivalia case, which is an Eastern District of New York case, that talks about this, the interest issue. And it says, at the time testimony was given, did they have an interest of substantially similar intensity to prove or disprove the same side or substantially similar issues before the Court. THE COURT: But the issues are markedly different, aren't they? The issue, what interest did Epstein have in establishing Maxwell's role? MS. McCAWLEY: The interest that Epstein had, just as if Rodriguez were here on the stand, the interest that Epstein had -- and you'll see it in the deposition -- is to disprove the allegations of girls coming into the house, nude photos on 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the computer, abuse happening in the home that other people knew about, all those things that were occurring at the West Palm Beach home. He had the same incentive as Maxwell would. If we put Rodriguez on the stand here, she would be cross-examining him on those same exact issues. So, your Honor, their interests -- THE COURT: But counsel points out, he's conceded liability. So what's point? MS. McCAWLEY: I don't believe in the Jane Doe cases he conceded liability in that manner, your Honor. He is cross-examining these witnesses because of course they are determining how much they're going to have to pay, all the issues relating to these witnesses. So he's fought those hard. He deposed and fought every single witness that was brought up in those cases. They went on for several years, as your Honor knows. THE COURT: Who called Rodriguez? MS. McCAWLEY: A number, there was probably, I think it was jointly six or seven lawyers from varying plaintiffs. There was Jane Doe 102, Jane Doe 1, you know, etc., all represented by varying counsel, so they were all present. And Creighton was present for Epstein. And that raises a good point, your Honor, because another -- THE COURT: So the issue, Epstein's issue with respect to Rodriguez was, were there girls, how many, and who they were. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. McCAWLEY: Yes, your Honor. Did the, yes, exactly, what was occurring at the house. So they were trying to establish whether or not those things occurred, how many girls were they really abused, all of those issues. And so they called Rodriguez to try to establish that, which, they got his testimony with respect to him. On the lawyers, I do want to point something out, because this talk about interests being aligned, you'll remember Detective Recarey in this case. He gave testimony. He is the detective who investigated this. He testified that he tried to interview Maxwell, and Guy Fronstin stopped him from doing it, wouldn't produce her as a witness. That is Epstein's lawyer. So there is -- while I we haven't seen a JDA, your Honor has directed it to be produced, and there is a fight over that. At that time back in 2006-7, when these depositions are happening, you have the lawyer for Epstein, also representing Maxwell, saying she can't be interviewed by the detective. So, your Honor, there is an interest alignment. THE COURT: That clearly doesn't do it. MS. McCAWLEY: I'm sorry? THE COURT: That clearly doesn't do it. MS. McCAWLEY: Well, your Honor, I believe that when we look at just the purpose of 804 and how this would come in, 4 5 THE COURT: I do understand he's dead. Probably a good thing based on everything that we know about Rodriguez, however. 6 7 8 MS. McCAWLEY: All right, your Honor. Well, I appreciate your entertaining my argument on that, and I'm happy to answer any questions you have. 9 10 11 MR. PAGLIUCA: I won't talk about the first two people. It seems to me that there is a concession that Mr. Rizzo is going to be here and why, and so we can move on. 12 THE COURT: Yes. 13 14 15 16 17 18 19 MR. PAGLIUCA: As to . McCawley directs you to page 7 of her deposition. And the question by Mr. first is, I'm going to go ahead and show you a police report. Mr. Josephsberg says, I've seen it about five years ago. And Mr. says, if you need to refer to it for any reason, you can. That's the entirety of that colloquy about whatever this police report is. 20 21 22 Then on line 17 there's a question, "Do you remember a police officer coming to speak with you in Jacksonville on October 11, 2005?" And she says, "No." 23 24 25 Just because you like some testimony doesn't mean that you've complied with the rules of evidence, your Honor. And if in fact someone was going to actually try to introduce whatever it's for a situation like this. Again we have a diseased. So we cannot produce him to be here to give the testimony. 4 5 6 7 this is, what would you do? Well, if you had an audio/video copy of this statement, you would push "play" in this deposition and the witness would watch the whole thing, and then you could say, is that you? Is that you on that tape? II, OK, yeah. And who's that you're talking to? And is that what you said? And is that your voice? Well, none of that happened, your Honor. 8 9 10 11 12 Alternatively, if you were the questioner, you would say, I'm going to direct your attention to page 1; did you say that or did you not say that? None of that happened in this deposition. In fact, the opposite happened, your Honor. The lawyer for the witness said -- 13 14 THE COURT: But that's as to the statement. That's all as to the statement. 15 16 MR. PAGLIUCA: That's right. OK. I've said enough about that, your Honor. 17 THE COURT: I mean, it doesn't get in through her. 18 19 20 MR. PAGLIUCA: Precisely. That was my point precisely, that there's no evidentiary foundation through this witness for admission of those pieces of paper. 21 Let me finish up with this Rodriguez issue. 22 23 THE COURT: But the so-called substantive testimony does get in. 24 25 MR. PAGLIUCA: Well, I suppose -- it depends on which part of it you're talking about, because there are, other than 4 THE COURT: Is that part of the -- I have roughly, what is that, two feet -- 5 MR. PAGLIUCA: Right. 6 7 THE COURT: two and a half feet of depositions to review with objections. Is she included in that? 8 MR. PAGLIUCA: Yes. 9 THE COURT: OK. 10 11 MR. PAGLIUCA: To the line-by-line objections and the designations. So this is a more overarching issue. 12 THE COURT: Yes. 13 14 15 16 17 18 19 20 MR. PAGLIUCA: Finally with regard to Rodriguez, your Honor, first of all, we are here in 2017 in a defamation action. Maxwell was not named a defendant in these Jane Doe litigations. And you asked the question, who took the deposition. The deposition was taken by the plaintiff's counsel in these various Jane Doe cases. Mr. was there. There were three or four other lawyers there that were asking Rodriguez questions. Maxwell was not represented. 21 22 23 24 25 The notion of Recarey saying that he was prevented from talking to Maxwell by some guy named Guy Fronstin, I'm just going to call that a lie, your Honor, because that's what it is. Maxwell was never represented by anybody during the course of any of these investigations, Fronstin or anybody specific objections to different parts of this designated transcript. 4 5 6 else. So that's just a lie. Recarey said something offhand like, Fronstin said don't talk to the employees, but at the end of the day, Recarey never talked to talk to Ms. Maxwell, not once. And Ms. Maxwell didn't have a lawyer. Fronstin would have been conflicted. There is just no substance to that testimony whatsoever. 7 8 9 10 And, again, I don't know how they can say that Epstein has a different role given the fact that he admitted liability and admitted damages. He has no incentive to cross-examine, at all. 11 12 THE COURT: Well, he has an incentive to limit the number of claimants. 13 14 15 16 MR. PAGLIUCA: Well, the number of claimants was defined by the United States government, your Honor. So he couldn't limit the number of claimants. He got a non-- the nonprosecution agreement says, I think in paragraph -- 17 18 19 THE COURT: If they were not named by the government, they could not sue -- I mean, they could sue, but they wouldn't be part of the confession. 20 MR. PAGLIUCA: Exactly. That's exactly right. 21 22 So all of these people had been named and were in this case. 23 So there is no incentive for him to cross-examine. 24 25 And, you know, the thing that really doesn't make any sense, their argument, there's a reason why co-defendants have 4 5 6 7 8 THE COURT: Well, of course the real thing that they want Rodriguez's testimony for, more than anything else, is the role of Maxwell. And I don't see how that is an interest. Do they have the same interest in trying to disprove the sexual trafficking allegation? Well, you say no, because that's all taken out of it by the agreement. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PAGLIUCA: Yes to that. But let me follow up. This is where I was going with why there are two lawyers for two defendants in a case. If I am in that deposition, representing Ms. Maxwell, or any competent lawyer is in that deposition representing Ms. Maxwell, I am cross-examining this guy about -- this is all on Epstein, Epstein did it, Epstein did it, Epstein did it, Epstein did it. That's what I'm cross-examining this guy about. I am distancing myself from Epstein and putting it all on him. If I'm Epstein's lawyer in this deposition, I'm trying to distance myself from everybody, including myself, your Honor. And so they have completely different motives in cross-examination of these witnesses. And time and time again, in any case before your Honor where there is a group of people that are accused of some kind of wrongdoing, everybody is pointing the finger in the other direction. And that's why you get different lawyers and that's why their interest aren't aligned. different lawyers. There is a reason why, in criminal cases, the same lawyer -- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But Maxwell is not at this party. She's not named as a defendant and she has nothing to do with this case. Her name comes up in three -- there is about, I think, 500 pages of transcript for Rodriguez. Maybe her name comes up four times, five times, during the entire 500 pages. That in and of itself shows you that there is really no commonality of interest here, because Maxwell is not on anybody's radar screen as having done anything when these cases are going. THE COURT: But what is his testimony about, Maxwell? (Continued on next page) MR. PAGLIUCA: So it's sort of, I don't have it in front of me but I can tell you generally because I've read it. There's a conversation about what did Rodriguez look at and did he have access to computers? And so at some point he says you know, I went on Ms. Maxwell -- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: There is the whole black book conversation. MR. PAGLIUCA: There is really no black book conversation other than there's some discussion about there's a system called Citrix which is apparently an internal e-mail system that Rodriguez talks about and talks about the lists coming from New York or words to that effect. So there's very brief discussion about that and then there is some other discussion about who did he report to and when. And then that is pretty much it for the entire deposition. THE COURT: And he reported to Maxwell? MR. PAGLIUCA: Well, there's conflicting testimony about that in Rodriguez's deposition. And it's very unclear to me who he actually reported to based on that deposition testimony. The point though, your Honor, is there's no incentive for anybody to develop that testimony on Maxwell's behalf. That's the point and that's why there's no identity of interest or any reason that this would be admissible under Rule 804. Thank you. THE COURT: Yes. Anything further? 4 5 6 7 8 MS. MCCAWLEY: Just two points of clarification, your Honor, just to guide the Court. If you look at page 24 and 25 of the Rodriguez deposition there's a question. So you took your instructions from Ms. Maxwell, as well as Mr. Epstein? She gave me instructions of how to run the household directly in other words like towels, et cetera. So there's testimony about who was your direct supervisor? Ms. Maxwell. 9 10 11 12 13 14 15 16 17 And then, your Honor, as well there's testimony regarding Ms. Maxwell being in the bank accounts on page 121. There's testimony about her threatening him post leaving work on page 172. There's testimony about the high school flowers issue on page 119. And then there's, of course, the cross-examination of her regarding the computer. So there's lots of testimony regarding her computer throughout the deposition but lot's of deposition testimony about that on page 364 as well as 369, as well as some of the other pages. 18 19 20 21 22 Finally, one point of clarification, on the notion with respect to fact, you were asking whether liability was determined in the lower court cases, the Jane Doe cases. And I just wanted my co-counsel to address one point of clarification very briefly. 23 24 25 MR. : Sure, your Honor. I just wanted to dispel the notion that because of the non prosecution agreement Mr. Epstein conceded liability. If you see that paragraph 4 5 6 7 8 9 10 number eight, it really indicates that if those victims agreed to exclusively pursue damages under 18 U.S.C. 2255, then he would concede liability. The reason that the cases were so hotly contested is because that did not allow for punitive damages, so it did not allow for a battery claim or an intentional infliction claim. So the plaintiffs elected then to sue him for claims outside of 18 U.S.C. 2255 which resulted in a hotly contested years long litigation where Epstein contested everything, liability, causation, damages, whether they were there, not there, all of that. 11 12 13 14 15 16 17 18 19 20 21 22 So that provision while it came into play for a select few people that pursued claims exclusively under that, the bulk of the litigation, the vast majority of the litigation, the claims, the claimants did not pursue exclusive remedy under that section and so therefore it was totally inapplicable and completely inapplicable to all of the depositions. I just wanted your Honor to have that understanding so that you would understand why any of these depositions were taken, why the cross-examination was so extensive and why when you read Mr. Rodriguez's deposition or any of the others from the underlying case, they will read that way. There was no concession. 23 24 25 MR. PAGLIUCA: Well, your Honor, I'm going to move to strike that. And my point is exactly about Mr. Edward and his role in these multiple litigations. Unless he wants to get 4 5 6 sworn-in and we actually have the opportunity to cross examine any of this purported evidence, I don't think the Court should consider it. You have the non prosecution agreement in front of you. It says what it says. And Mr. at this point is not a witness and he is not sworn-in and he is not subject to cross-examination. 7 8 THE COURT: Well, the 2255 damages, what kind of damages are they? Do you know? 9 10 11 12 13 14 MR. PAGLIUCA: Your Honor, that's a statutory provision under the Trafficking Act that allows for civil damage claims under that particular statute, 18 U.S.C. 2255. It allows for extensive damages including pain and suffering, attorney's fees, et cetera. And so there are a panoply of very large damages recoverable under that statute. 15 THE COURT: Presumably not punitive damages? 16 MS. MCCAWLEY: That's correct, your Honor. 17 MR. : That's correct, your Honor. 18 MR. PAGLIUCA: So what? 19 20 THE COURT: Yes. OK. All right. Thank you. We're done. 21 22 23 MS. MCCAWLEY: Those were the only pending motions, your Honor. With respect to the depositions that we designated, we know we've submitted objections and responses. 24 25 THE COURT: Well, II, yeah. Well, I have that file and I'll take that on submission. God Lord, it would take us forever. 4 (Pause) 5 6 7 8 THE COURT: My clerk graciously points out to me that we have the "lawyer as witness" issue that has not been argued. I'm perfectly willing to take that on submission. Do you want to be heard on it? 9 10 MR. PAGLIUCA: I'm happy to address it briefly, your Honor. If we have time today, that's fine. 11 THE COURT: OK. 12 13 14 15 MS. MCCAWLEY: I'm sorry, your Honor. I didn't know it was set for today and Paul Cassell was handling that motion. I don't have the papers with me either. I'm sorry. I didn't realize that we had that teed up for today. 16 THE COURT: Well, I'll hear counsel and then -- 17 MS. MCCAWLEY: I'm sorry, your Honor. 18 19 MR. PAGLIUCA: This a brief argument, your Honor. The only thing that I want to point out is this. 20 THE COURT: You're not going to call them, I take it. 21 22 MR. PAGLIUCA: That didn't sound like a question, your Honor. 23 24 THE COURT: Well, absent their testifying on plaintiff's case do you intend to call them? 25 MR. PAGLIUCA: No. MS. MCCAWLEY: Thank you. We appreciate your time. MR. : Thank you, your Honor. THE COURT: No, that's what I thought. So it's 4 5 only -- and it's only really on the chain of custody of the black book. That's the only thing, it seems to me that the plaintiff could call him for. And of course, if he's called for and they say they're not going to call them for that, so. 6 MS. MCCAWLEY: That's correct, your Honor. 7 8 9 10 MR. PAGLIUCA: Here is what I perceive to be the problem here and I may be forecasting a little bit, your Honor. Mr. and Mr. Cassell, Mr. in particular, are really inextricably intertwined with a lot of factual issues. 11 12 THE COURT: Yes, I know the history. I mean, some of the history. 13 14 15 16 MR. PAGLIUCA: And in my view -- and I suppose reasonable people can differ about this. In my view this is not the kind of case that if I were in either of their shoes I would be litigating in front of a jury. 17 18 THE COURT: That's fine. I understand the ethical point. 19 20 21 MR. PAGLIUCA: Right. And that's their issue. I agree it's their issue but when it spills over into my client's ability to get a fair trial it becomes my issue. 22 THE COURT: Yes. 23 24 25 MR. PAGLIUCA: And so what I have put in my papers which I just want to highlight is I think the Court has the authority to disqualify these lawyers. The Court may or may 4 5 6 7 8 9 MR. PAGLIUCA: In response to their papers I have and that's in my responsive pleading. However, your Honor, the real problem that I am forecasting here -- and I think the Court can address this in the context of the trial of this case -- is the pervasive tendency of plaintiff's counsel to offer testimony from the podium or the table. 10 11 12 13 THE COURT: Well, that of course, first of all, I would hope that it would not happen and if it does happen and if it should happen more than once or twice, we'll see. There must be something a judge could do about that. 14 MR. PAGLIUCA: I would think so. 15 16 THE COURT: Maybe put the lawyer in jail? I don't know. Is that possible? 17 MR. PAGLIUCA: It is possible, your Honor. 18 19 THE COURT: By, it is, isn't it? Depending on what I order, yeah. 20 MR. PAGLIUCA: Precisely. 21 22 THE COURT: OK. It seems to me we can probably control that. 23 MR. PAGLIUCA: Enough side, your Honor. 24 25 THE COURT: But I don't want to leave your motion to disqualify hanging. What under all these circumstances, do you not choose to do that. I have asked as remedy one a disqualification. THE COURT: But you haven't moved to disqualify them. 4 THE COURT: Do you really -- I understand the thought about the ethical issues here. That's it, really, isn't it? 5 6 MR. PAGLIUCA: You know, your Honor, it's something that I've struggled with because it's not my ethical issue. 7 THE COURT: No. And those are unattractive motions. 8 9 10 11 MR. PAGLIUCA: Sure. My fear -- and again, I don't know how this is going to play out -- but my fear is during the middle of this trial there's going to be an issue. Whether it's somebody -- 12 13 THE COURT: Of course you know if it's extreme bingo, bango, that's the end of the trial. 14 15 16 MR. PAGLIUCA: Right. And that's what I say in my response is that I'm foreshadowing this because I'd rather if there is going to be an issue -- 17 18 19 THE COURT: Let me ask you this because I say based on this colloquy and the fact that it does come in on your reply which really isn't kosher -- 20 MR. PAGLIUCA: I agree. 21 22 23 THE COURT: I mean, as an affirmative motion, all of those things I'll consider that at the moment it's withdrawn and they're subject to renewal. 24 MR. PAGLIUCA: That's fine, your Honor. 25 THE COURT: At least I got rid of one motion. want to press it? I mean -- MR. PAGLIUCA: Your Honor, I'm raising -- MS. MCCAWLEY: Thank you, your Honor. THE COURT: One motion that is inappropriately brought. 4 5 MR. PAGLIUCA: By admission, your Honor. I admit when that's a problem. 6 THE COURT: OK. 7 MS. MCCAWLEY: Thank you, your Honor. 8 9 THE COURT: There's a gentleman who just walked in. I don't know whether -- 10 MR. WEINBERG: Good afternoon, your Honor. 11 12 Weinberg. And I apologize for being late in the Epstein motion to quash. 13 14 THE COURT: Well, I don't know why you should apologize. You are only two and a half hours late. 15 MR. WEINBERG: LaGuardia was swamped, your Honor. 16 THE COURT: OK. I'll hear you. 17 MR. WEINBERG: Thank you very much, your Honor. 18 19 THE COURT: Now before you start I have a question. What is Epstein's residence? 20 21 MR. WEINBERG: Epstein's legal residence is the Virgin Islands, your Honor. 22 23 THE COURT: And has he done business here in New York regularly? 24 25 MR. WEINBERG: He has done business in New York and whether it's regular or not, your Honor, would be -- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: An issue. MR. WEINBERG: An issue. We accepted service to try Lo facilitate the decision making knowing about all of the issues in the case but we reserved all our rights to oppose both the surface and the necessity for Mr. Epstein to reassert his Fifth Amendment which I represent to you as his counsel would be his position. His Fifth Amendment is just as necessary to his rights today as it was when your Honor wrote your opinion under seal on February 2. THE COURT: Well, as this record stands, I don't think I have the power -- and you would I am sure agree with me -- I don't think I have the power to compel him to attend as this record stands at the moment. MR. WEINBERG: We would agree, your Honor. THE COURT: So it's really just a question of using his deposition. MR. WEINBERG: Excuse me, your Honor? THE COURT: Of using his deposition. MR. WEINBERG: Yes, your Honor. And the deposition would cause no prejudice to either party. In the event your Honor determined there was no adverse inference, there would be no reason for more testimony and your Honor was going to look question by question, subject by subject, the video deposition 600 questions, over five hours provides the Court with a pretrial basis to make the rulings. 4 MR. WEINBERG: Thank you, judge. 5 THE COURT: Anything else you want to tell me? 6 MR. WEINBERG: No, your Honor. 7 8 THE COURT: OK. I'll hear from anybody who wants to challenge that. 9 10 11 12 MS. MCCAWLEY: Your Honor, I just wanted to ask, I know the concern is about the regularly conducted business in New York. Could we have an opportunity to submit evidence with respect to his regular conduct of business in New York? 13 14 15 16 17 THE COURT: Look, you really want to try that? Do you really want to try that? And just for the purpose of trying to compel him -- look, I guess you've served him. You have the right. Fine. Do whatever you want to do, I guess. I don't know how you're going to do it but good luck. 18 19 20 21 22 23 As the record now stands, there's an assertion by counsel which I take in good faith that his residence is the Virgin Islands. Where are the Virgin Islands? They are not within the Southern District, I don't think. There are islands but no, no, II, yes this is an island. Yeah, that's right. OK. 24 MS. MCCAWLEY: I understand, your Honor. 25 THE COURT: The fact is I don't have on this record, I THE COURT: Can you imagine? II, my goodness. My gracious. Well, such a procedure would give me an opportunity to rest and doze off and so, all right. don't think I have the ability to send the marshals out for him. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. MCCAWLEY: I understand, your Honor. Thank you. THE COURT: OK. So you do whatever you want to do. At the moment it's his deposition. Parenthetically, there's a little issue about that which maybe we could clear up. His disposition on the use of the Fifth Amendment will be eliminated. MR. : Thank you, your Honor. THE COURT: Any problems with that? OK. We all know what we're talking about. MR. : Yes. THE COURT: Squib at the top there when he initially invoked. MS. MCCAWLEY: So, yes. Thank you, your Honor. THE COURT: That will be eliminated. All right. Anything else? MS. MCCAWLEY: That's it, your Honor. Thank you so much for your time. THE COURT: Thanks. (Adjourned)