UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re: Docket #1:19-cv-08673- DOE, JANE, KPF-DCF Plaintiff, - against - INDYKE, et al., : New York, New York June 24, 2020 Defendants. TELEPHONE CONFERENCE PROCEEDINGS BEFORE THE HONORABLE JUDGE DEBRA C. FREEMAN, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE APPEARANCES: For Plaintiff: For the Defendants: KAPLAN HECKER & FINK LLP BY: ROBERTA A. KAPLAN, ESQ. KATE L. DONIGER, ESQ. 350 Fifth Avenue, Suite 7110 New York, New York 10118 212-763-0883 TROUTMAN SANDERS LLP BY: BENNET J. MOSKOWITZ, ESQ. 875 Third Avenue New York, New York 10022 212-704-6087 TROUTMAN SANDERS BY: MOLLY S. DIRAGO, ESQ. 227 W. Monroe Street, Suite 3900 Chicago, Illinois 60606 312-759-1926 Transcription Service: Carole Ludwig, Transcription Services 155 East Fourth Street #3C New York, New York 10009 Phone: (212) 420-0771 Email: [email protected] Proceedings conducted telephonically and recorded by electronic sound recording; Transcript produced by transcription service EFTA00102404 INDEX EXAMINATIONS Witness None Exhibit Number None Re- Re- Direct Cross Direct Cross EXHIBITS Description Voir ID In Dire EFTA00102405 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 3 HONORABLE DEBRA C. FREEMAN (THE COURT) : So this is Judge Freeman. This is Doe v. Indyke, and it is 19-cv- 8673. The case is before Judge Failla. Can I have counsels' appearances, please, for this record, starting on plaintiffs' side? MS. ROBERTA KAPLAN: Yes, your Honor. For plaintiffs you have Roberta Kaplan. And I'm here with my colleague -- or I shouldn't say "I'm here" -- I'm on the phone with my colleague, Kate Doniger. THE COURT: Okay. And on defendants' side? MR. BENNET MOSKOWITZ: Hi, your Honor, Bennet Moskowitz. THE COURT: Hold on a second. If others could please mute their lines if they're not speaking? It sounds like someone is maybe monitoring another call at the same time. So I'd appreciate it if you could just mute. Thank you. On defendant's side? MR. MOSKOWITZ: Yes, thank you, your Honor. I was waiting for that to play out; I heard the same thing. Bennet Moskowitz, Troutman Sanders, for the co-executors. And my colleague, Molly DiRago, is also on the line. THE COURT: Okay. Is there anyone else on the line who is a participant in this call, an attorney for one of the parties in this case? EFTA00102406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 4 THE COURT: All right, we have a number of people on the line apparently. I probably have some people from my chambers who are listening in, including student interns. And there may be press on the call and others. I'm just going to ask anyone who's listening, again please keep your lines on mute so that it doesn't interfere with the conference with the participants. So the reason I wanted to have a conference in this case -- well, there are a few reasons. There are discovery disputes on the docket that need attention, there's a scheduling matter that needs attention. There's a bigger issue that I wanted to raise about what's going on with this case and the potential settlement of claims through the program that's been set up. So let me start there because of all of the many cases that have been filed in the court, most of which have been referred to me to supervise, far and away most of those are now temporarily stayed because the plaintiffs are planning to pursue remedies in the claims program, now that it's gotten off the ground, and have voluntarily consented to stays. Obviously, there's no obligation that a plaintiff voluntarily consent to a stay, but I did want to understand why this case pretty much stands alone as being aggressively litigated at this time and understand if EFTA00102407 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 5 plaintiff has decided not to participate in the program or is considering and hasn't decided yet whether to participate or wants to do both things simultaneously or what the story is with this particular plaintiff. So can I have that addressed first? MS. KAPLAN: Sure, your Honor; it's Roberta Kaplan. Let me -- first, to answer your question directly, let me tell you that our client is still considering whether to participate in the program. But -- THE COURT: I'm sorry, is still considering? MS. KAPLAN: Yes, whether or not to -- THE COURT: Okay. MS. KAPLAN: And she may indeed well do that. But I think it's very important for the Court to understand that the program itself is not a settlement discussion of this case in the sense that the defendants in this case, as we understand it, have no role in relationship to ability to interfere in any way -- in any way -- with the settlement program. So essentially the way it works, as we understand, is Ken Feinberg and his colleagues will come up with a number. That's the number, and it's either take it or leave it. There's no subsequent negotiation with the estate or anyone else. And so it's not like it's really a settlement discussion of this case; it's not. It's an EFTA00102408 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 6 amount of money that Mr. Feinberg thinks is appropriate under the settlement fund. For many reasons, including the fact that we believe our client is differently situation than many if not all of the other plaintiffs, she believes that there is a very strong likelihood that she is likely to receive more in this case at trial than she would from whatever Mr. Feinberg determines on his own is the appropriate number. And that's for a couple of reasons. One, very few of the cases or not many of the cases have plaintiffs who were underage at the time the acts happened. So there is no statute of limitations problem in this case. And, two, there is no issue in this case, as there are in many of the other cases, about whether or not our client settled any prior claims with either Mr. Epstein or the estate. And the facts are straightforward. She was, as your Honor knows, was witness No. 1, victim No. 1 in the indictment. The U.S. Attorney's Office was fully satisfied in her story. We believe that, whether it's a bench trial, as we've requested, or a jury, that either the judge or the jury will be, too. THE COURT: If she does participate in the program and an amount is offered to her and she decides to accept EFTA00102409 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 7 it, does that have the result of resolving this litigation? MS. KAPLAN: Absolutely. And the minute that happens, we would obviously voluntarily dismiss this case. I think that's a condition of participation in the program. THE COURT: All right. So -- MS. KAPLAN: We also don't know, your Honor, how quickly the program's going work, how many women have been in it. And, again, based on our understanding of the kind of damages awards that Mr. Feinberg and his colleagues have given in analogous circumstances -- and I'm thinking of the Catholic church cases we think it's unlikely, very unlikely that our client is willing to accept the kind of amounts that he's previously offered in similar situations. THE COURT: Well, I assume if you decide to participate in it, you'd participate in it, consider any amount that may be offered, you know, in full good faith, and mull it over and make a decision. You're not going to go into it saying we're not going to accept it whatever it is; you find out what it is. MS. KAPLAN: Oh, no, no, no, no. THE COURT: You find out what it is. MS. KAPLAN: Of course, your Honor. We've basically done a lot of work on this, so we're basing this on what we understand to be amounts that similar funds that EFTA00102410 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 8 Mr. Feinberg has administered have offered to plaintiffs who've experienced things similar to what our client has experienced. And the numbers tend to be actually quite low. THE COURT: Okay. Well, I can't speak to that. I don't know what may be offered in this case. Here are some concerns that I have. One concern that I have is that the underlying reasoning for the Court to make the institutional decision to refer a lot of these cases -- I mean, I shouldn't say that, actually, because it was still an individual judge's decision to refer or not to refer -- most of the judges decided that they would refer cases to me so that there could be coordination among the cases where appropriate in discovery to conserve resources, both for the estate, for the Court, just generally to have coordination so that you didn't have, for example -- and I think it's the most obvious example -- a witness who was going to testify to something that would be relevant to all of the different plaintiffs have to testify on multiple occasions if that could be avoided. And that seems to me still to be a laudable goal. And if it's possible that your client may -- I just want to make sure that we didn't gain -- that sounds like someone joining the call -- we didn't gain EFTA00102411 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 9 any attorney who wants to be participating in this case. Did anyone just join in who wants to be speaking on this call? No. If not, please keep your phone line mute; I appreciate that. If your client decides to participate in the program, then, you know, query why we're spending a lot of resources now, as opposed to in a couple of months. Most of the stays that have been put in effect are only for a couple of months; they're not infinite stays. There are a couple, I think, that were signed by district judges separately that might say Pending Further Order of the Court. The ones that I've signed recently I think have been 60 days. Mr. Moskowitz, correct me if I'm wrong on that. MR. MOSKOWITZ: Your Honor, it's been both, actually. I think the majority are even, I would argue, more flexible than that. I believe the majority, including even more recent ones, just say on the plaintiffs deciding that they no longer want the case stayed, they're essentially free to go back to court and ask for the stay to be lifted. I think there are three or so that include a specific 60 days, which I suppose could be renewed or just let lapse. THE COURT: Yes, I think the most recent ones were EFTA00102412 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 10 60 days, the most recent ones that I signed off on. So those are the ones most recent in my memory. But I've asked for status reports on all of them by sometime mid- August because I don't want it to stretch out forever. So the first issue is should we be conserving resources in case your client ends up resolving the claims through the program. And the second is if your client really is unlikely to participate, unlikely to resolve the claims that way, is there a possibility, and how likely is this, that one of the other plaintiffs or more than one of the other plaintiffs will make a similar decision and will want to come back and litigate maybe in a couple of months, and at that point, would it make sense to try to have some coordinated discovery, particularly again with respect to certain depositions perhaps or certain discovery from the estate or some of the discovery plaintiff by plaintiff is going to be different -- and I understand that -- but some of it is likely to have some common threads; is there a distinct prejudice to waiting for some reasonable limited period of time to see if somebody else comes back into the mix before we go forward with a slew of depositions? And part of the reason for the call was when I asked you to see if you could work out a schedule that included dates for depositions and stop just squabbling about it, you came EFTA00102413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 11 back with nearly a dozen depositions over a relatively short period of time. And that sort of jumped out at me as wait a second; does it make sense for any of those, at a minimum even if not all of them, to be put on hold to see whether they're the kinds of things that should include parties in more than one of these cases in order to have a more efficient running of multiple cases to conserve resources, including resources of the estate, which after all, maybe can and should be going towards plaintiffs as opposed to litigation costs. And so, you know -- and there are a lot of things that factor into that kind of thought process. One of them is when you have a delay, you know, how likely is it that documents won't be preserved or that memories will fail. Here we have a very long time since the underlying events, and so the likelihood that, you know, memories will fail now that haven't failed already or that documents won't be preserved now when there's a litigation hold when they weren't preserved already -- when they weren't previously preserved, that seems unlikely. And in terms of how fast could this case otherwise get to trial, since I'm sure plaintiff, you know, doesn't want to delay any longer than necessary to reach a resolution, we have the COVID-19 issue, which means that we're set back as a court with EFTA00102414 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 12 respect to how fast we can get cases tried. And that's just a current fact of life. And I was speaking to Judge Failla about this to try to get a sense from her as to what she thought, and I don't know if this would be a bench trial or a jury trial. Which would it be, by the way? MS. KAPLAN: Plaintiffs have waived a jury trial. THE COURT: Okay. So with a bench trial -- MR. MOSKOWITZ: We have -- I'm sorry, we -- MS. KAPLAN: It's hard for me to believe, your Honor, it's hard for me to believe that -- THE COURT: Wait, wait, wait just a second. Did defendant -- MS. KAPLAN: Can I finish what I was going to say? It's hard -- defendants have not responded to that -- it's hard for me to believe that the defendants truly believe that they're going to insist on a jury, given the facts and circumstances of this case, but they have refused to tell us whether or not they agree to waive a jury trial. THE COURT: What is defendants' position on this? Because if you didn't -- MR. MOSKOWITZ: Yeah, the position -- THE COURT: -- answer -- MR. MOSKOWITZ: -- was not file -- no, that's not EFTA00102415 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 13 correct, your Honor. The plaintiffs' last exchange on this was they -- they said, "Will you waive a jury trial?" We said we're not prepared at this time to make that decision and waive a jury trial. And they said, "Fine. Let us know by the 30th; otherwise, our offer of waiving the bench trial is no longer there." What I'm hearing now is that they are absolutely committed to waiving jury trial. I still am not prepared at this time to make that waiver on my side, nor do I see why it has to be decided at this time. MS. KAPLAN: Yes, what you're hearing, Mr. Moskowitz, is that you are delaying again in bad faith because there's no reason -- THE COURT: All right, wait, wait, wait, wait, wait, please. Everybody stop. I don't need to get into an argument about whether there is or is not a jury trial. I'm going to say this about that. I was raising it only because it's going to be harder to get a trial quickly on this case in light of the COVID-19 problem than it would be otherwise. What's happening in the court is this. With respect to juries, right now we don't have jury trials because we can't get jurors safely in the court. When we eventually get juries safely in the court, odds are there will be fewer jurors coming in than had been before in the EFTA00102416 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 14 initial jury pools because we have to make sure people will be socially distanced. The cases that will go first with juries are undoubtedly going to be the criminal cases where there's a constitutional right to a speedy trial. There's going to be something of a backlog on that. Any cases that are large, that involve large numbers of people in the courtroom are probably going to have to be held in certain designated courtrooms that are particularly large that will enable social distancing. Courtrooms are currently being measured so we can figure out how trials can safely be held, and so on and so forth. In terms of how quickly a civil jury case can be held, the answer is not that fast. Just we're going to have to -- we have a lag time to get jurors, we have a lag time to get enough jurors, we're going to have to deal with the criminal cases, we're going to have to deal with things like Court size. And odds are that that is not happening just -- I can't tell you when it will, but it's not going to be all that fast. With respect to bench trials, there are some judges who are venturing into the world of holding remote bench trials. I believe Judge McMahon has one scheduled. There are some others who have been making efforts and figuring out remote platforms that will work. And there's also the possibility of sort of hybrid trials where you EFTA00102417 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 15 have some people in person and you have some people hooked in remotely, you know, certain witnesses or something like that. That is certainly a possibility. But everybody's schedule for trials has also been affected so that if, for example, Judge Failla, who has this case for trial -- and I can't speak to this -- but if, for example, Judge Failla had three criminal trials that she was unable to try because of this period of time when ordinarily trials would be happening, and so those have to be scheduled, then even a bench trial may be difficult to schedule, even if it is logistically possible, because of other things that are going to be on the judge's plate. So when I look at the issue about delay, there are two main questions that come up with respect to potential delay. One is is it prejudicial to the plaintiff, or to the defendant for that matter, because we're likely to lose evidence, we're likely to have a witness who is MS. KAPLAN: Your Honor, can I argue the rest of the factors that you talked about earlier? Because we have things to say about all of them. THE COURT: Yes. Let me finish what I'm saying, and I'll absolutely hear from you. Okay? MS. KAPLAN: Okay. THE COURT: I keep hearing people joining the EFTA00102418 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 16 call. I'm just going to issue the reminder please keep your line mute unless -- on mute unless you're a participant in this call, in which case please speak up and let us know you are here. With respect to the loss of evidence, it may be -- and it's a question I usually ask -- you know, it may be there is a particular witness who is ill or very elderly or you know is about to move out of the jurisdiction, you need to preserve evidence, something like that, and those are issues in any case where there is any stay, any delay, that I always want to know about because it may be important to address those particular issues with particular witnesses or particular evidence. The second thing I look at is what is the end of the road in the case. Is it -- would it, you know, be triable next month, or would it be waiting, anyway, for trial. Here, odds are, even with a bench trial, there's going to be some wait. And so where does the end end up. And that is a factor to think about here and whether it makes sense to hold off on any of the discovery that's currently on the table to see whether either plaintiff resolves the claims through the program or anyone else whose case is currently stayed comes back into the court and says, "Please lift the stay. I want to go forward with EFTA00102419 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 17 discovery to give us a chance of coordinating that discovery if it makes sense for the particular discovery. Now, having said all that, I will absolutely hear from you. Counsel? MS. KAPLAN: Okay. So, number one, on prejudice, your Honor, there will be prejudice to my client even with respect to the Feinberg settlement fund. One of the issues that the Feinberg settlement funds says they will look to in deciding whether or not to award fees or award damages and how much to award is based on the corroborating evidence for the particular person. In our case at this point, we have produced all the documents that we have from our plaintiffs to the other side. Mr. Moskowitz, on the other hand, has produced barely nothing. So that if discovery is stayed at this point, our rights to get a higher award from the Feinberg fund are severely prejudiced. We know they have corroborating information. They have hits that show our client's name and contact with our client. We should be able to obtain those documents, which should have been produced to us long ago, in order to use that if we agree to proceed with the fund to corroborate and to make our claim toward the fund stronger. And by this delay tactic that's gone on and on and on, what they've done is have us produce everything but us not have EFTA00102420 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 18 the information that we should have that Feinberg, Ken Feinberg, has said is relevant to a determination under the fund. So under no circumstances should there be any stay or delay of document discovery. In fact, that would be severely unfair, given our alacrity and our good faith in producing everything, and unfair to our opportunity to participate in the fund, number one. THE COURT: Okay. Just let me interrupt you there for one second, because I was not talking so much about documents regarding the particular plaintiff in this case or discovery, for that matter, regarding the particular plaintiff in this case. What I was talking about was whether there -- whether we should still look for any potential opportunities that may come up down the road to coordinate discovery where it made sense because it was common discovery for all of the cases, probably not plaintiff specific. MS. KAPLAN: So on that issue, your Honor, I'm frankly not aware of any real discovery or evidence in this case that is not plaintiff specific. The trial, when and if it takes place, will last no longer than two, three days. The witnesses will be our clients, psychological forensic experts, maybe one or two people who she told about what happened. And the only two people who EFTA00102421 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 19 possibly -- we don't have claims against anyone else, we don't have claims against Ms. Maxwell, we don't allege any kind of wider conspiracy regarding Prince Andrew the way the other cases do. It's a very simple, very straightforward case. The only possible overlap that I can possibly think of -- and Ms. Doniger should correct me if I'm wrong -- are two of the women who worked for Mr. Epstein who helped book the so-called massages that our client participated in, both of whose lawyers have told us they intend to plead the Fifth. So we could honestly get a letter from them telling they intend to take the Fifth. And there is, therefore, no overlapping evidence, either in terms of documents or witnesses. THE COURT: Are they included or not included in the 11 depositions that you listed? MS. KAPLAN: They are. We have very few depositions. Most of the depositions are ones that Mr. Moskowitz is noticing of my client's doctors, family members and friends. THE COURT: And why do you think that those might not be witnesses who would testify at trial such that the trial might have more witnesses than what you've described? You've got 11 people to be deposed. That sounds to me like there might be 11 witnesses at trial except for maybe a EFTA00102422 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 20 couple who take the Fifth. MS. KAPLAN: No. It's highly unlikely, your Honor. Most of the people, as we notified Mr. Moskowitz many times, like doctor's offices that she's gone to where they told us they have no records; or friends that, you know, barely remember. We were very, as your Honor can imagine, we were very overinclusive to be extremely careful on our 26(a) disclosures. And they just noticed everyone on the 26(a) disclosures, not -- it's very unlikely that any of those people are going -- or most of those people are going to testify at trial. We're certainly not going to put them on. And I would suggest that the point of deposing them is to, again -- I don't know what the point of deposing them is, but I guess he wants to depose all these people under oath and ask them questions. It's very unlikely that any of them will say anything that's going to be relevant to his defenses. THE COURT: Let me hear briefly on the other side about these witnesses. MR. MOSKOWITZ: Yes, your Honor, Bennet Moskowitz. I feel like I'm talking about a different case than the one Ms. Kaplan is talking about. And part of this may be because the day-to-day of discovery is not handled by Ms. Kaplan. I've been dealing exclusively with her EFTA00102423 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 21 colleague who is on the line. So I'd just like to back up and clarify a few things. One is they have not substantially completed their document production, even putting aside the disputes we have over what they say they don't have to do. In fact, the latest -- and maybe Ms. Kaplan, although she was copied on these emails, wasn't aware of it -- is that they refused to review 7,000 documents that hit on search terms to be proposed. And we suggested ways they can narrow that. And we haven't yet reached a resolution of that. In terms of our production, the documents -- we did already produce most of the few documents among over 730,000 that hit on their client's name. And they definitively showed why that is, that such few documents exist; not because we didn't find them, but rather because the decedent didn't even have any knowledge of their client when she appeared in more recent history regarding making some kind of pre-litigation settlement demand when he was still alive. So there's been no stonewalling; I'm not sure where that's coming from. And I want to correct one other thing. You know, I'm hearing this -- and you're right; this plaintiff stands alone. Her counsel now stands alone. So these complaints about the program, they fall flat, given that every other EFTA00102424 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 22 attorney who was likewise very skeptical, as your Honor knows, has voluntarily stayed their action, with the exception of two cases other than this one that were filed much later, and I'm actually confident we'll reach similar resolutions in those cases. But we will see. It's not the Feinberg fund. Mr. Feinberg's not the administrator. It's Jordana Feldman. Ms. Kaplan knows that. I don't know why she insists on saying that as if it's some kind of ding against the program. Mr. Feinberg, who's the preeminent person who designed such programs, is indeed one of the designers of the program. But there is one administrator, Jordana Feldman, who has full independence. And Ms. Kaplan is right; we don't get to tell Ms. Feldman what should be awarded to this plaintiff. It is solely Ms. Feldman who makes that determination. I don't know why that is viewed as a bad thing; and, again, plaintiff here stands alone in saying that. Look, your Honor, raised this, as well. This is the world we live in, not as we want it. There is going to be no trial around the corner, whether it's bench trial or jury trial. The estate is not -- is not in favor of dragging things out. That's part of the reason that the program is designed the way it's designed. It's a much speedier resolution of claims than any litigation, EFTA00102425 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 23 including this one. And the fact that we're now having these disputes in this case while the plaintiff, for whatever reason, wants to rocket through the docket to have, I guess, what they view as, you know, the first crack at a payment of judgment, I get why they want that. But it's not realistic, number one, because of all the reasons your Honor went over; and the other realistic factor that we're ignoring is the money spent on this, it's just not going to be available to the program. That's a harm to this plaintiff if she's going to join -- and I believe she is -- they've struggled in many different ways to avoid saying yes, they're going to do the program. I'm very confident they will, based on my understanding of their heavy involvement in discussions with Ms. Feldman and Mr. Feinberg. But that money is not going to go to this plaintiff, it's not going to go to any other plaintiff. That's their choice. We haven't sought a stay; it's not required. That was one of the other benefits of the program. But the fact that everyone else, for the most part, has seen the wisdom in staying their action but this plaintiff is the outlier speaks volumes to their intent, not ours. In terms of these depositions, look, they can't have it both ways. They said we were very careful in only EFTA00102426 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 24 disclosing the people that really have anything of knowledge. Yeah, they did that, and we need to speak to these people. This is a serious case, they're seeking serious damages. They haven't told us how much and, you know, that's part of our letter, which is just unbelievable now that we're nearly a year out from when they filed it. But the fact that their client saw so many doctors related to their myriad of alleged harms is what drives our need to depose so many people. There are only a couple of fact witnesses, and then they mentioned family members like we're trying to bully people, well, paragraph 58 of the complaint brings the plaintiff's husband directly into this case because she alleges that Mr. Epstein's abuse that allegedly occurred caused her issues in her marriage. We didn't bring him into the case; they did. So, yes, we do need to depose the husband. We're not going out and deposing relatives that have not been brought into the case and that we have no reason to believe know anything, but it is going to be more than two witnesses and this. You know, you hear a lot of, oh, it will be this, so a day later we'll be done. That's how they want it. But we have a lot more to do. And we're very unhappy that they're just, after many weeks where we had what I thought were very productive EFTA00102427 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 25 conversations, it was really just between me and Kate and some of her colleagues -- Ms. Kaplan was not part of those discussions. They turned around and basically said to us, "All right, well, it's your fault you waited so long; you really better finish your depositions in, you know, record time." What is the rush? Like your Honor said, there is not going to be any trial tomorrow. It's not going to be next month. There is time to do this. There's even time, if the Court sees the wisdom in it, for a 30- or 60-day stay, just like in all the other actions. No one will be harmed. The only harm that for certain will happen if this case continues to go forward in this fashion is that we will have to burn through litigation fees having to deal with disputes over documents, depositions that may be avoid altogether. So the situation is clear, and your Honor already got it exactly right. You don't need me to explain to you what the situation is. Your Honor already correctly understands it. MS. KAPLAN: Your Honor, when my client was -- THE COURT: Who are the -- who -- MS. KAPLAN: -- a 14-year -old girl -- THE COURT: Hold on, please. These 11 witnesses for deposition, can I just make a list of who they are by EFTA00102428 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 26 kind of the category? In other words, a plaintiff's doctor, a plaintiff's doctor, a plaintiff's relative, and how many are not directly connected to plaintiff in that sort of way. MR. MOSKOWITZ: Sure, I could do that. And it was actually -- plaintiff's counsel asked us not to put the names in the submissions, so we THE COURT: No, I don't want the names MR. MOSKOWITZ: -- abided by that. THE COURT: -- I just want -- MR. MOSKOWITZ: Yeah, I won't do that. THE COURT: -- just like the concept of who they are. MR. MOSKOWITZ: Sure. So four individuals are, I believe, friends of plaintiff that they disclosed as having knowledge of plaintiff's allegations. I believe there are three treating physicians that they disclosed. There is also the plaintiff's husband, which I just went over. And then there's the plaintiff's deposition and Rule 35 examination. And then the other two are the alleged co- conspirators that -- and those are depositions that the plaintiff seeks, not us. And those are people that are in -- MS. KAPLAN: Your Honor, exactly -- exactly as I EFTA00102429 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 27 explained, there is no overlapping witnesses in this case, other than the two co-conspirators, again, both of whose attorneys have told me they intend to take the Fifth. And they're not co-conspirators in the sense that we're suing them; they're co-conspirators in the sense they were the two women who booked so-called massages for my client with Mr. Epstein when she was a child of 14 years old. Our client has waited, your Honor, a very long time to get justice from Mr. Epstein and now from his estate. The idea there's a $350 million estate -- or at least that's what they say it is -- that our client should wait so that the estate can save on litigation costs, given what Mr. Epstein has done to my client, is not only unconstitutional but offensive. All these depositions are depositions they want to take. There's no overlap with other cases. The reason -- the explanation he gave you about documents, they gave us one woman's name and said, "Search the name Maria," for example. And we had 7,000 hits, and we said, "That's not the way to do it. Give us some limiter. Maria within 5 of X or 5 of y. That's the way people do litigation, as I'm sure your Honor knows as a magistrate in the Southern District. And they refused to do that. So the idea that we should have to wait for the EFTA00102430 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 28 settlement fund when an explicitly bargained term of the settlement fund was that no one would have to wait, that no one would have to stay their claim, it's written into the fund itself, when there's no overlap and when we've completed our document production and we're waiting for theirs is frankly unfair, especially because it will prejudice us with respect to the fund. Mr. Feinberg and Jordana have said very clearly they're looking for all the documents they can get their hands on. THE COURT: Okay. Okay. I am -- I would like it if you could try to pin down if in fact these two witnesses are planning to take the Fifth because, if so, that will be a very short deposition. I'm sure it can be -- maybe it can be done in writing ahead of time; or if you must have somebody on the record, I'm assuming you can say, you know, general questions, "If I were to ask you any questions about this or that, would the answer be the same?" And it would be very short -- MS. KAPLAN: Of course, your Honor. THE COURT: I'm sorry -- that would be very short. And that does not trouble me in terms of a lot of cost or time. I'm satisfied with respect to the other witnesses that they are very case specific and that there would not EFTA00102431 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 29 be any lost opportunity -- if I have those depositions go forward, there would not be any lost opportunity for coordinating depositions with other cases because it sounds like these other witnesses would not be relevant to other cases. If it is -- if there are people who are particularly friends of the plaintiff and they're being asked to testify about things other than what plaintiff's told them, you know, they may have been friends of others, as well, you know, but I'm satisfied that the questioning here will just relate to this plaintiff. Treating physicians are obviously this plaintiff's doctors. Plaintiff's husband is obviously this plaintiff's husband. And the plaintiff is obviously the plaintiff. So it does not sound like there are efficiencies or economies there that I should be concerned about with respect to depositions, which was my first reaction when I saw that long -- a list of deposition dates. Okay? It may be also, if some of these witnesses really do not have much information, you will have -- you can either work out a substitute way to depose them that makes it simpler -- you don't have to retain a court reporter and you can just get some written statement or something or maybe you can have more than one in a day or something to make these take less time and be less costly. And I will EFTA00102432 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 30 say that I am charged, under Rule 1 of the Federal Rules, with trying to make sure that they are interpreted and administered in a way that not only is efficient but that is -- that keeps the economies in mind and keeps the cost in mind. And I need to do that as I look at a case. I need to do that with respect to document production. I need to do that in general. With respect to document production, it's hard for me to tell exactly what's been going on here. Each side claims that it's been, you know, highly forthcoming and the other side has not been. I don't really want to hear that. I really just want to hear that you're working cooperatively and in an efficient manner to get the productions done. If they are productions that are specifically related to plaintiff, then I don't really see the reason to hold it up. I mean, I do think that it would be nice if every last dime in the estate could be kept there and be used for compensating victims if there's, you know, it's demonstrated that people have been victims, that they should get the money as opposed to the lawyers getting the money. But, you know, if it's very case specific, if it's very plaintiff specific and plaintiff wishes to proceed with it, I'm going to let that proceed. If there are any documents that are not case specific and where EFTA00102433 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 31 there would be any efficiencies to doing it differently, I don't see it the same way as I see it with respect to depositions where you might want to have other lawyers in the room asking questions. I see less reason to hold off on the document production. But if there's something I'm not thinking of that you want to bring to my attention, bring it to my attention. But I'm going to resolve the disputes that are in front of me about documents in particular. And I'm going to, you know, urge you to move forward civilly and without, you know, name calling or finger pointing or charging the other with any kind of shenanigans and just try to get it done. MS. KAPLAN: Agreed, your Honor. THE COURT: I don't know that I have a motion to compel from the plaintiff. I know I have a motion to compel or a request for a conference in connection with a motion to compel on the defendants' side seeking more from plaintiff. But plaintiff's counsel was complaining on this call. Do you also have ripe issues on your side that you -- MS. KAPLAN: I anticipate -- no, no, your Honor. I anticipate we'll be able to work out whatever remaining issues we have -- EFTA00102434 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 32 THE COURT: Perfect. MS. KAPLAN: -- on our side. We do not have a motion to compel at this time. The only other thing I wanted to clarify, your Honor, is it's not my understanding that all -- let's assume the estate has $350 million. It's very clearly not my understanding that the estate has committed to pay the entire amount of the estate to Mr. Epstein's victims. And that's not the way the Feinberg fund was set up or will be administered. Rather, it's my understanding, that any amounts that are not paid to victims will go to the heirs under the estate, who we understand is Mr. Epstein's brother. So your Honor's under a misconception if you think that legal fees saved by the estate necessarily go into a fund that's all going to be distributed to victims. That is not the way it's been set up. THE COURT: Well, it was my understanding, which may be incorrect -- and, by the way, let's not refer to it as the "Feinberg fund." It's just -- it's claims, it's the victims' compensation claims program or something like that. It's got a name. We'll just call it "the fund." It was my understanding that the claims would be paid out of whatever there is. Whether it all goes to claimants or not is not really the question that I had in my mind; that EFTA00102435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 33 there is a universe out there, there is an amount of money or assets out there which is available as the administrator sees fit to pay. The larger it is, the more that is arguably available for the administrator to decide would be appropriate for different victims. It may be that more will come forward, it may be that more victims will not come forward, it may be there's money left over, and it may be there's no money left over. But any money that is currently in the estate, you know, you don't want to see it shrink. Why would anyone want to see it shrink? If the administrator would like to say that, you know, more should be paid, wouldn't it be better that there's more there that could potentially be tapped than having it pay for litigation costs? MS. KAPLAN: Understood, your Honor. But I have seen settlement funds, for example, in Michigan and other places where the commitment was made that all the funds that were available were going to be paid out to victims. That was very clearly not what was done here. And the only assumption that anyone can make is that once -- and it's not limitless number of victims -- that once the settlement administrators and Ms. Feldman have made whatever determinations they make, that -- we have been told by them that they would see that as being less than EFTA00102436 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 34 the amount in the estate, and the remainder in the estate will be paid to Mr. Epstein's brother. THE COURT: They don't have any -- they don't have a particular limit on the amount, do they? MS. KAPLAN: No, but they -- MR. MOSKOWITZ: No. Your Honor sorry. Go ahead. I could clarify this. THE COURT: Okay. MS. KAPLAN: This is something that was negotiated, quite clearly, by the side and something there was proposals made by the plaintiffs to set up a fund where there would be a commitment that all the money in the estate would be paid out to victims. It's my understanding, after many conversations, that is not the commitment. And in fact, there was Mr. Feinberg and Ms. Feldman told us that they didn't even have a full understanding of the full amount in the estate. THE COURT: Let me just put some numbers on this hypothetically. And, obviously, these are not the correct numbers; I'm sure there are, you know, millions of dollars -- actually, I'm not sure of anything, but I'm going to assume there are millions of dollars in the estate. But let's just call it a million dollars. There's a million dollars in the estate -- or let's even make it EFTA00102437 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 35 even simpler than that. Say it's $100,000 in the estate. And so it's $100,000 that could be paid out. And maybe 80,000 of it gets paid out to victims, and there's 20,000 left over and it goes to somebody else. Okay. But if 30,000 gets spent on legal fees or other things, now there's no longer the ability to pay out 80,000. Now there's only 70,000 there. You certainly don't want that to happen. And if there's MS. KAPLAN: Yes, but we were THE COURT: -- if there's 90,000 left, you know, maybe it could be the administrator would say, you know what, let's pay out 90. That may be, and it's there, and it's available. MS. KAPLAN: But, your Honor, we were told quite explicitly -- quite explicitly by Mr. Feinberg and Ms. Feldman that that is not the case here. There is more than sufficient funds, as they said, to pay out everyone with excess. And so for the implication to be that by my client incurring litigation costs for the estate, she's taking money from other victims is not the case. If she's taking money from anyone, she's taking it from Mr. Epstein's brother. MR. MOSKOWITZ: That's -- your Honor, Bennet Moskowitz. That's not correct. And no one -- and I wish EFTA00102438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 36 we would not speak for other people who are not on this call. I highly doubt Mr. Feinberg or Ms. Feldman said any of those things. First of all, I don't know where Ms. Kaplan's getting her information about who's receiving what money under the will. It's not based on any facts that I'm actually aware of. So perhaps she knows something I don't. But your Honor has it exactly correct. What's available to the fund -- and it's called the Epstein Victims Compensation Program -- is not all the money in the world. Right? There's an estate. Within that is a pool of assets available to a program which has no artificial cap to it because we don't know how many victims are out there. That's part of the problem. If Ms. Kaplan does, I would love to know the number. We don't know. But it is absolutely correct what your Honor said. If a million dollars is spent on this case on legal fees, that's taken out of a pot of assets that is there if ever needed for the fund while it's ongoing; that's gone because it's spent on lawyers. So your example was -- absolutely got it correct. It's about what's actually available to pay the people. So make no mistake. This is not good for the fund process, the spending of assets, which is why -- MS. KAPLAN: Is that why the case -- EFTA00102439 1 PROCEEDINGS 37 2 MR. MOSKOWITZ: -- other people stayed their 3 actions in part. They know that. 4 MS. KAPLAN: If that were the case, your Honor, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then the estate could have made the commitment, which they refused to make and refused to say to the fund administrators that all the amounts in the estate, subject to whatever secure claims are out there, would be devoted to this fund. They have not said that. MR. MOSKOWITZ: Yeah, and we could debate trusts and estates law and the, you know, theory of how it works in law school, but that's correct, we don't control -- we don't get to willy-nilly say forget what a will says or any other legal instruments; we're going to do what we think is right under Ms. Kaplan's notion of justice. What we've done is voluntarily gone out of our way to work very hard to design a program that so many see the value in that you now that this plaintiff now stands alone. And -- THE COURT: Okay. Wait. Hold on a minute. It sounds to me like what you are saying are different spins are not necessarily mutually exclusive. It may be -- and I don't know because I haven't read the documentation about how the program is going to work -- but it may be that it is not required that all assets will be paid to claimants once it's clear how many are coming forward, that every EFTA00102440 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20