UNITED STATES DISTRICT COURT

H3ulgiva UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff, v. GHISLAINE MAXWELL, Defendant. Before: 15 Civ. 7433 (RWS) Oral Argument New York, N.Y. March 31, 2017 12:08 p.m. HON. ROBERT W. SWEET, District Judge APPEARANCES BOIES, SCHILLER & FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. MEREDITH L. SCHULTZ, ESQ. S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH For Plaintiff BY: PAUL G. CASSELL, ESQ. FARMER, JAFFE, WEISSING, EDWARDS, FISTOS, LEHRMAN, P.L. Attorneys for Plaintiff BY: BRADLEY J. EDWARDS, ESQ. HADDON, MORGAN AND FOREMAN, P.C. Attorneys for Defendant BY: JEFFREY S. PAGLIUCA, ESQ. LAURA A. MENNINGER, ESQ. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592369 H3ulgiva (Case called) THE COURT: We have a problem, folks. By my count 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and of course one can count differently depending on how you treat these matters, but one count I have is that we have 45 motions before me. That may not be entirely accurate, but it's not too far off. Here's my suggestion. Well, first of all, I think, though you have shown absolutely no mercy to me, I am prepared to show a little mercy to you. Translated, if you want to, we can schedule this so you can have lunch. On the other hand, if you don't want lunch, that's okay. I can endure. By the way, the Epstein motion will go over to tomorrow because we were told, if I understand it correctly, that they didn't know it was on for today. How that ignorance exists, I don't know, but anyhow, we'll put that over to tomorrow. So what I would suggest is that today -- and today ends, for our joint effort, at 3:30 -- the defendant's motion with respect to the supplemental reports of Jansen and Kliman; the 302 motion; and there are three that seem to me to go together -- the references to the Florida action, the CVRA action; the Epstein plea agreement and nonprosecution, and registration; and the victim notification letter. Seems to me all those present same of the same basic problems, and I'll SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592370 H3ulgiva hear those together. And then the defendant's motion with 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respect to sexual history and the motion on Maxwell's involvement with Epstein's activities. So that's my thought. We could go say until 1:30 and then break for lunch, resume at 2:30 and go another hour, or go straight through. Why don't you all confer, see what you want to do. And the remainder, we can do tomorrow. We'll start at 10:00. Do you all want to confer for a moment and see what you want to do? MS. McCAWLEY: Well, your Honor, on our part, we want to spend as much time getting through this today as we can, so we would prefer not to take a lunch break because there are so many things we need to get through, we'd want to try to utilize as much of your time as we can. THE COURT: Okay. No lunch. Go. Defendant's motion with respect to the supplemental reports. MS. McCAWLEY: Your Honor, could I just have one point of clarification. I'm sorry. With respect to plaintiff's omnibus motion, we were planning to argue that today. That has several subparts. THE COURT: Well, why don't we leave that for tomorrow. MS. MENNINGER: Your Honor, I would like to leave it for tomorrow. There was a 60-page reply that was served on Monday night and so if we could just have until tomorrow on SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592371 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, I would appreciate it. There was a 60-page reply filed on that motion on Monday night. THE COURT: Does that surprise you? Doesn't surprise re. MS. MENNINGER: No. It doesn't. THE COURT: Well, okay. MS. MENNINGER: But if we could do it tomorrow, I'd appreciate it. THE COURT: Well, I was planning to, wasn't I? Yes. MS. MENNINGER: I agree with your Honor. THE COURT: Yes. Okay. MR. PAGLIUCA: Good afternoon again, your Honor. THE COURT: Good afternoon. Yes. MR. PAGLIUCA: Your Honor, with regard to the motion on the late-disclosed supplemental report of Jansen and the video exhibit of Dr. Kliman, first, I'd like to start with Kliman, if I could. Dr. Kliman is a summary witness who has no firsthand knowledge about the facts associated with this case. He's been proffered as an expert in psychiatry. And the majority of his opinions don't really relate to psychiatry; they relate to credibility issues of the plaintiff in this case. Replete through the opinion, original opinion that he offered, are a SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592372 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number of what I deem to be improper vouching. THE COURT: Let's get to the supplemental reports. I've read the papers on the Daubert aspect and I have some familiarity with the report, but let's get to the supplemental. MR. PAGLIUCA: I will, your Honor. And I start there because that is a primary problem with the -- it's not a supplemental report. I mean, what happened was, in terms of the backdrop here THE COURT: Let me see if I can shorthand this. What you're complaining about is not the video of but the summary. MR. PAGLIUCA: I'm complaining about both, your Honor. And let me explain why. THE COURT: Okay. Forget about the summary for a moment. You didn't get the video at the time the report was filed. You got the report, I think it was September, whenever it was. You didn't get the video, but you did get it before the deposition. MR. PAGLIUCA: Here's the distinction I need the Court to understand. What we got after the report was filed was approximately four hours of video conducted over a two-day time frame. So there's a large portion of video conducted over a two-day time frame. When I arrived at Dr. Kliman's office on November 17th, I believe it was -- THE COURT: Well, you were in San Francisco, so what's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592373 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrong with that? MR. PAGLIUCA: I love San Francisco, if I could actually spend some time there, but going from an airport to a hotel and Dr. Kliman's office was not my idea of a good time. So we get there, and I get a 15-megabyte flash drive, which has a lot of things on it, including something I've never seen before. THE COURT: By the way, so was that as a result of a request of yours? MR. PAGLIUCA: Yes. THE COURT: Oh. MR. PAGLIUCA: Yes. We had requested, and in fact issued a subpoena, for all of Dr. Kliman's materials, and, you know, I don't mind things coming in a little bit late in these regards because I can prepare for the deposition. But the problem, your Honor, is, the morning of the deposition, I get this -- THE COURT: No. I know. MR. PAGLIUCA: Okay. And it is not simply a -- THE COURT: I understand. You got it right just before. MR. PAGLIUCA: But your Honor, this is not clear in the papers, and indulge me, please, for one moment. The video that I get when I get there is a professionally edited video, and it takes different segments of what I was previously SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592374 H3ulgiva provided and it compiles it in, you know, almost a documentary 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fashion, if you will. And so we have the plaintiff, in different clips, from different days, and different times, saying things -- THE COURT: Of course the other problem is, so that's in September. When was this, late September? MR. PAGLIUCA: No. November 17th THE COURT: November. MR. PAGLIUCA: So the reports are due in September, we get this in -- THE COURT: It would have been nice to have this issue raised then, not now. MR. PAGLIUCA: Well, your Honor, I said to them at the time, you know, I don't believe this is admissible and I don't need to do anything about it. So it's not my -- they're the ones who are not in compliance with the rule, not me. And so if you want to do something about it, I think you need to be prophylactic. THE COURT: Okay. Anything else you want to tell me? MR. PAGLIUCA: Yes, your Honor. Embedded in this edited footage are nine separate statements, advocacy statements by Kliman, such as calling Ms. Maxwell a perpetrator, someone he's never met before, but he feels free to call her a perpetrator in the middle of this videotape. He feels free to opine, you know, in these editorial comments of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592375 H3u1giva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his that -- THE COURT: That's a whole different issue. Right? MR. PAGLIUCA: Yes. I agree. And finally, your Honor, on this Kliman issue, it seems to me that all of this is -- well, let me back up. Here are the reasons why it's prejudicial, and I don't think we can just say, this is a videotape, so what? I never had the opportunity, because the deadlines expired for experts, to give the edited version to any other expert to analyze the footage, to compare it to the original footage, to see how it was filmed; never had the opportunity to give it to any psychological expert to examine those particular clips and how they were put together. THE COURT: Of course, we could have extended the deadlines if you had wanted. MR. PAGLIUCA: Your Honor, again, I'm not the person who didn't comply with the rule. It's not on me to do that, in my view. THE COURT: Okay. MR. PAGLIUCA: So that's Kliman, your Honor. THE COURT: Okay. MR. PAGLIUCA: Well, and by the way, it's also cumulative testimony. I don't believe that it would be appropriate for the plaintiffs to testify, then have Kliman testify, and then during Kliman's testimony there's this staged SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592376 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 presentation in front of Kliman that he gets to then comment on. And so really what we're doing is we're trying to clean up the in-court testimony by an out-of-court statement to this psychologist that he then gets to stop and opine on for the jury during the middle of all of this. That seems to be cumulative. It's also prejudicial, and it also denies my ability to confront and cross-examine a witness who is appearing for the camera and acting. So that's Kliman. Jansen, your Honor, is a true new report. Dr. Jansen issued his report. We then issue a rebuttal report to Dr. Jansen in which our expert points out that Dr. Jansen didn't record any of the data that he purportedly relies on. So right after we issue our rebuttal report, we get new data from Dr. Jansen, and it's curious because the report by Jansen is written on September 9th but the data that we then get, in response to our subpoena, is November 2nd. That's fine. I go take his deposition, and during his deposition I'm asking him questions about, well, you know, how do you come up with this number? And he can't give me an answer, because he doesn't have any of the material that he purportedly relied on to issue the opinion. So I'm feeling pretty good about all this when we leave because I have a guy who issues a report that doesn't have any underlying data to support it and can't explain to me what these different numbers are and where they came from. You know, two weeks later, I get in the mail, or SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592377 IC H3ulgiva email, a supplemental report that is materially different than 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the report that I deposed this person on. And, you know, materially how? I mean, they want to say, oh, no, he's just doing ongoing work here. Well, the alleged number of articles has more than doubled in his review. The alleged unique users, which is his phrase for somebody who went on a website somewhere, is more than 10 million more, and the other number, which is the number of publications, has also more than doubled. So, you know, that is patently unfair, your Honor, to have somebody go redo their report after they've been cross-examined and come up with different opinions that I've never been able to depose anyone on. That's the problem. They should live with their opinion if it is admissible at all. MS. SCHULTZ: Your Honor, this is Meredith Schultz for I'll address the Dr. Kliman report first. And what defendant's briefing and what oral argument didn't make clear is that in advance of the deposition, Dr. Kliman provided defense counsel the entire videotaped interview with Ms. . They had all the footage already. THE COURT: Wait. In fairness, in advance of the deposition by ten minutes. MS. SCHULTZ: Sorry, your Honor. No. I think that's a misunderstanding. What they received "ten minutes before" were clips of the video. The entire video was produced well in SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592378 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advance of the deposition. What they're complaining about is that from that entire video certain segments were produced. So they already had that material already. They just didn't have it in a clip form. THE COURT: So you say that the production of the entire video was timely. MS. SCHULTZ: Yes, your Honor. And I would also say that the supplement was timely too. What was on that flash drive, 98 percent of that had already been produced before because they had the full-length video. It did include clips that Dr. Kliman made with subtitles. And then also it had some new billing statements that were more updated that were produced in accordance to Rule 26's requirements to supplement reports. So they had the long-form video ahead of the deposition. The clips of the videos that they already had is what they're complaining about here, and I don't think the briefing makes that clear. With regard to Dr. Jansen, I think there are also some misunderstandings there. The bottom line is that it is very reasonable to get the results that he did in his supplement. And it's based on how search engines index web content. So in the briefing, it says, oh, the supplemental report has articles from before the first report and so it's illegitimate. That's not a correct argument. And I think it's easily confused because of how search engines work. Basically documents that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592379 12 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are the supplemental report, articles prior to September 9th, you know, if one does two searches on different days on a search engine, it's very reasonable to retrieve results during the second search that were published prior to the first search. It all depends on when the search engine added that content to its search index. So that's how search engines work. It's not going to have every single article on that day. It has to be added to the index. So the methodology employed was exactly the same as was employed in the first report. No expert has stated otherwise. And its methodology is rock solid. Counsel for defendant complained about no underlining data, but that's a little -- it's a misstatement. The expert provided what traffic services were used, provided the website domains, the URLs, provided the traffic numbers as well. So the data is there. So employing the exact same methodology to supplement the report, it's no surprise that additional articles are going to come up. For example, search engines will take a major website like the New York Times and crawl that multiple times a day to get new articles. Articles on more obscure websites won't be crawled by the search engine at the same rate. So doing a search on two different days, you are necessarily going to have two different results. And it will even pick up results that predate the first search, because it hasn't been crawled yet by the search engine that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592380 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you're using. I know this is a little bit hypertechnical, but I think that understanding is important to understand why a supplemental report varies from the original report. If you did one today, you'd probably have even more articles. THE COURT: Anything else? MS. SCHULTZ: That's all I have. THE COURT: Okay. Let me ask you, defense MR. PAGLIUCA: Yes, your Honor. THE COURT: -- I gather from that, if I understand it, that it's the edited version on the flash drive, or whatever you call it, that's the one that you want excluded. MR. PAGLIUCA: Correct. Your Honor, as I understand it, that is a proposed trial exhibit, although we haven't had an exhibit list yet. That is a specific rule that relates to trial exhibits. And to be clear, your Honor, there were four separate video clips that were late provided that I didn't complain about because I had them in advance of the deposition. Those four video clips total roughly four hours, give or take. From that four hours there was a professionally made exhibit that -- there are different camera angles displayed in this, the plaintiff has makeup on, the plaintiff is dressed in a suit. It is clearly edited to be an advocacy piece, your Honor. And so that is what was given to me the morning of and I didn't have an opportunity to look at it or cross-examine on SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592381 1: H3ulgiva it or give it to anybody to evaluate. That's the problem. THE COURT: Okay. Do you want to add anything on the -- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PAGLIUCA: On Jansen? THE COURT: Jansen? MR. PAGLIUCA: Yes. I'm not mistaken and there is no misunderstanding here, your Honor. Jansen redid his report to try to take care of the deficiencies in the original report, the deficiencies pointed out in his deposition, and he ended up with substantially different results. That's point number one. Point number two is, it is not accurate to say that the additional 170 articles or multiples of sites postdated his deposition because in the reply -- and it's a bit of a confusing chart, I might add, your Honor. We have the dates of these publications which all show that they predate his deposition and his report, or the majority of them. So there's no excuse for it. THE COURT: Thank you. Next. 302. MS. MENNINGER: Good afternoon, your Honor. As you know, the 302 statement we're talking about here purports to be from an interview with the FBI in 2011 about events supposedly occurring in 1997 through 2002, so some 14 years later, and the report itself was purportedly written two years after the interview, in 2013. It is so heavily SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592382 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 redacted, we have no idea who the author of the report is. THE COURT: What's the provenance of this report that we're talking about? MS. MENNINGER: It showed up in my discovery. THE COURT: You mean the plaintiff had it? MS. MENNINGER: Plaintiff had it, plaintiff provided it to us in discovery, plaintiff has not explained where it came from. THE COURT: End of story. MS. MENNINGER: Right. The author is redacted, your Honor. I don't know who authored the report. THE COURT: Right. All we know about it is that she had a copy of it. MS. MENNINGER: Apparently someone did and put it into the discovery. I don't know who had it or where they got it. THE COURT: Well, yes. Okay. All right. MS. MENNINGER: So, you know, alluding to that point, your Honor, there are so many redactions, it's unclear who wrote the report, but more importantly, the content of the report is so heavily redacted, we don't know what she's saying. I mean, there are pages where there are just sentence fragments. And so the problem, your Honor, which seems clear to me, is that, to the extent there are statements in there, they are hearsay statements. They are out of court. And so we raised that in our motion in Iimine, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592383 16 H3ulgiva In response, the plaintiffs submitted that they're not trying to offer this report for the truth. They're offering it 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for the fact that their client, they say, reported this information to law enforcement, in 2011. Well, you don't need the report for her to get on the stand and testify that she met with FBI agents in 2011. She can just say that without the report itself coming in. And even if it were to come in, it's unclear why anything in the report is relevant to a disputed fact in our case. We don't know what she reported. We don't see the names of people in there. We can't tell what she said. And because of the redactions, we don't know who she said it to, etc. So we can't talk to that unknown person that's redacted. She apparently must know who she talked to, and she didn't disclose that person, for example, in her Rule 26 disclosures, your Honor, so if she talked to someone about the facts of this case, didn't put them in her Rule 26 disclosures, then, your Honor, she's denied us the ability to get in touch with that person. As a backup and completely different argument to "we're not offering it for the truth of the matter," plaintiff's second argument is that they are offering it for the truth of the matter as a public record under 803(8) . Your Honor, we already discussed for you why the document lacks trustworthiness. The source of the information is her. It's self-serving, to the extent it is a statement of fact, because SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592384 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I can't tell what it says. It would be self-serving. So your Honor, it essentially puts plaintiff in the position of getting on the stand and trying to say what she said to the FBI agent and denying us the ability, because of the redactions, to cross-examine her about what she actually said because the redactions cover up the content for the most part. Your Honor, prior consistent statements, I think our law is clear in the brief that it has to be a specific statement of fact and it has to be predating the motive to lie. This statement came after she had already sold her story to the reporter -- about a month later, I believe. So your Honor, her motive to lie had already arisen at the time it says that this interview was given, and that's all we really know about it. Because the interview with the reporter is actually containeci in the FBI statement. MS. McCAWLEY: Good morning, your Honor. It's Sigrid McCawley on behalf of Your Honor, this is not some obscure document that the Court would not recognize. I'd like to pass up some copies for your Honor. This is an FBI 302 report. It contains the seal of the FBI at the top of it. It contains the date. Can I approach, please. It's a document that's commonly used when FBI agents are conducting their investigations; in fact, it's required. It indicates that the signer of the document, the recorder of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592385 18 H3ulgiva the document, was the individual who conducted the interview. And I'd like to clarify. A statement was made that we 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have not indicated who was involved in this FBI 302. We produced email traffic about the meeting and about the FBI agents involved in this meeting in discovery, probably nine months ago, your Honor. This FBI 302 has all of the trustworthiness that goes along with one of these documents. Again, it has the seal and everything that is required. Your Honor, it did come to us as a result of a FOIA request that we sent. It is, your Honor, produced in accordance with how the FBI 302s are typically kept. This is a public record under 803(8) (a), your Honor. To be clear, it's actually a case that the defendants cited in their brief, Upstate Shredding, which is a Southern District of New York case, your Honor, that holds that these types of reports do come into evidence under the public record exception. Similarly, the Spanierman case, which is also, your Honor, a Southern District of New York case, similarly holds FBI records like the one that we are seeking to introduce are entered into evidence under this public records exception. So let's take a look at it. Again, at the top right-hand corner you're going to see the FBI seal, you're going to see the date, and you are going to see a lot of detail about the client's interview during this interview. And as you know, your Honor, this comes into play because the FBI was SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592386 19 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continuing to investigate Epstein. They flew to Australia to interview our client. She gave her witness statement to them along with other evidence that she produced to them, and that's recorded in this. And why is that important? That's important because in this very case, the defendants have claimed that other witnesses who did not report to law enforcement is problematic. So we want to be able to show this jury that yes, our client did report this to law enforcement, she gave a detailed statement to the FBI about what happened to her during her time with the defendant and Epstein, and it does outline those details, as you'll see looking through it. Of course there are redactions, but that doesn't make the document something that shouldn't be shown to the jury. In fact, it needs to be shown to the jury to show that our client did report her allegations to law enforcement and cooperated with law enforcement. So your Honor, it comes in for that, which is a nonhearsay purpose, to show simply that she did report to authorities, but it also comes in under the hearsay exception of 803(8) (a), so that it can come in as a public record. And let's just look at the prongs of that test. A requires that it was an office activity. This is something that the FBI regularly does. It regularly conducts investigations, meetings with individuals and then records them in these 302s. It was a matter done under their legal duty to report. The FBI is required to have these forms, and that is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592387 20 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 why it was recorded in this manner, your Honor. And it also has no indications of a lack of trustworthiness. Again, it says that the writer of the report, on the final page, was the interviewee. They make hay about the dates when the interview was versus the date of recording. That's not unusual either, your Honor. In the course of their work they will record information, interview witnesses, and then make their official recording at the time that it's needed, and that is what happened here, your Honor. So it meets all of the trustworthiness prongs that are necessary for an 803 public record, your Honor, and we believe that it should come in both under that as a hearsay exception and as nonhearsay to show that Ms. did report her allegations to law enforcement and cooperated with law enforcement. Thank you, your Honor. MS. MENNINGER: What you did not just hear is well, we don't have the FOIA request. We just have counsel testifying that they issued a FOIA request and got this document. We don't know who redacted the document. We don't know whether that was plaintiff's counsel or some other person before they got the document. We don't know when they got it. She's sitting here and telling your Honor she wants to introduce it for the fact that it was reported to law enforcement. Your Honor, this was supposedly a 2011 interview talking about events that happened, as I just mentioned, in SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592388 H3ulgiva 1997 through 2002, so this is not some contemporaneous report 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to law enforcement. We're talking about, at a minimum, an 11-year gap between some report to law enforcement. And you don't need the document. Plaintiff can testify that she talked to the FBI agents when she gets on the stand and she can say she did that in March 2011. But the but hearsay offered for the truth of Honor. I find it wholly improbable, report itself is nothing the matters asserted, your the testimony -- and I'll call it testimony -- by plaintiff's counsel that it's "not unusual" for the FBI to delay writing a report for two years. Your Honor, I practice in this area. I can tell you, it is quite unusual, in my experience, to have an FBI report generated two years after an interview. Was it generated from a recording, or was it generated from memory? Was it generated from notes? We have no idea, because you know what, we don't know who it is that wrote the report that plaintiff says she wants to introduce, and she hasn't provided that person's name. Counsel said that there is no indications of a lack of trustworthiness. In addition to the fact that we don't know its provenance or where it came from, we don't know who wrote it, we don't know when what it actually says, two eyes that the vast it was written or how, we don't know because your Honor can see with your own majority of the content is crossed out. So if they introduce this evidence, we're going to have plaintiff saying, well, what it says beneath that redaction is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592389 22 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 XYZ, and I'm going to have no way, your Honor, of cross-examining her with regard to what's underneath the redaction because we don't have it. So your Honor, for all those reasons, it does not meet the test for 803(8)(a) . They have asserted, without any substance or proof, that this was pursuant to an authorized investigation. They have asserted that it was prepared in due course after two years. There's no proof. We don't know who wrote it. We don't know what was said. I can't really picture a less reliable document, your Honor. THE COURT: Okay. The CVRA action and the plea and prosecution and so on, and the victim notification letter. MR. PAGLIUCA: Your Honor, we've broken this up, but when I stop, Ms. Menninger can -- I'll tag her and she can come into the ring. THE COURT: That's fine. MR. PAGLIUCA: Your Honor, I'm addressing the CVRA litigation motion, 669. I have to start with first, your Honor, one of my apparently pet peeves in this litigation is the point of all of the pleadings that are being referenced in this particular motion are drafted and filed by the lawyers that are sitting in this room, and it is troubling to me, because when we're arguing about the admissibility of this and what goes to the jury, it seemed inescapable to me that we are then in the position of, whether it's by document or from the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592390 23 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness stand or from the podium, having lawyers offer facts to a jury, statements to a jury, that they are going to be then arguing are credible, and so we have this joinder motion, drafted by Mr. Edwards and Mr. Cassell, that they would like to introduce into evidence, whole cloth into evidence, that contains the legal arguments and the statements of lawyers, these lawyers, in a motion in another courtroom, of which they will then be arguing to a jury that's all true. And so I don't see how that's any different than a lawyer testifying in court, and so that's, to me, part of the backdrop to this. I also submit, your Honor, that the vast majority -- well, frankly, all of these pleadings are not relevant to this action, and I say that because the plaintiffs continue to turn the issue of what's at issue in this case around. They have the burden of proving that what Ms. Maxwell said was false. That's what is at issue. We have to look at Ms. Maxwell's statement issued by Barden and Gow and then go backwards from there. And the burden on the plaintiff is proving falsity of that statement. It is not the situation where -- which is what they're trying to do is to say we have to prove what we said was true, what we the lawyers said was true, and therefore, we get to prove whatever we want to in connection with this litigation. And so it seems to me that we have turned all of this on its head, because instead of saying, the issue is, can the plaintiff meet its burden to prove the statement issued by SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592391 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Gow and Barden on Maxwell's behalf was false, they are now saying, we want to prove whatever we want to prove is true and that needs to be the focus of this litigation. So with that as the context and the backdrop, your Honor, I simply don't understand or see how any of these pleadings are (A) relevant to this case, and (B) I don't see it or understand how they're simply not self-serving lawyer-vouchered statements, and I haven't heard any reason from the plaintiff, either orally or in writing, as to exactly how the introduction of these documents would be relevant to prove that Ms. Maxwell's statement was false. THE COURT: But look, the problem obviously is that this is the document to which the defendant was responding, or at least portions of it. MR. PAGLIUCA: Can I respond to that, your Honor? THE COURT: Yes. MR. PAGLIUCA: I think that that's what they would like everyone to believe, but indeed, what the plaintiff was responding to were communications from the media about a document, these documents, that she had never seen, and so the factual backdrop here is that -- I mean, this doesn't get dropped on Ms. Maxwell's doorstep in December of 2014. She's getting calls from the media about, What do you have to say about this thing that these lawyers filed in this case in Florida? She is I think in England at the time. I don't SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592392 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recall, frankly, but I believe she was in England; or her agents certainly are in England who are issuing this release. And so it's not that Ms. Maxwell reads this and then the lawyers issue their statement. So what she's responding to are press reports and calls from the media. I think that's pretty clear by Mr. Barden's declaration in the summary judgment paperwork as well as Mr. Gow's deposition. The other thing that I have been pondering, your Honor, because this is a large problem for this case, is, assume for a moment, your Honor, what you just said is absolutely true, that she's responding to this pleading. Well -- THE COURT: But she refers to statement, or allegations. MR. PAGLIUCA: Right. THE COURT: And so it's those allegations that she's responding to. MR. PAGLIUCA: Well, the difficulty I have, your Honor, and I think it's going to be a difficulty we're living with here -- THE COURT: But that's what the statement is. And MR. PAGLIUCA: You asked a question during the summary judgment hearing, and it's a great question: What are the allegations? And I think that's at the heart of dealing with the difficulty in a lot of these issues because as I stand here SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592393 26 H3ulgiva today, a year plus into this case, I don't know what they were. And -- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But we do know in this instance. We know exactly what they are. MR. PAGLIUCA: Well, but let me push back on this for a second, your Honor, because what we're talking about is not a statement by the plaintiff. If that's what we're talking about. If we're talking about this joinder motion, the Jane Doe 102 joinder motion is a legal pleading filed by these two lawyers. And there are no quotation marks in this thing -- THE COURT: Of course. That's what an allegation is. MR. PAGLIUCA: Yes, but there are no quotation marks in this. There are no direct quotes. There is a lot of legal hyperbole and conjecture throughout the entire pleading. There are statements by counsel contained in the pleading. And so I asked a question rhetorically: What's she responding to? Is she defaming Mr. Edwards or Mr. Cassell, or is she defaming the plaintiff? When you parse through this pleading, you could be defaming all of these people, if that's what the allegation is. So I think it's problematic to say this is the pleading that is the allegation, because what happens is, this pleading gets filed -- THE COURT: But this is an allegation of hers. MR. PAGLIUCA: Of who? THE COURT: Of the plaintiff's. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592394 27 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3ulgiva lawyers. MR. PAGLIUCA: Well, filed on her behalf by her THE COURT: Come on. It's hers. It's her allegation. MR. PAGLIUCA: And she is Jane Doe 102 and it is filed by her lawyers, and that's what they are saying on her behalf. That's what I can say about that, your Honor. THE COURT: I do understand how these documents are prepared. MR. PAGLIUCA: I know you do. THE COURT: This much I got. I've got that. But it's her statement. Come on. Similarly, Ms. Maxwell's statement is her statement, regardless of how it was prepared. So I know the motive issue and all that. Now whether it should be in some form, but your client does not say, "The allegations with respect to me are false." MR. PAGLIUCA: Well, I disagree with that, your Honor. I mean, I believe -- THE COURT: They're all false. MR. PAGLIUCA: But I believe a fair reading of that document, the press release by Barden and Gow, is that she's talking about the allegations against her, Maxwell, and she includes Dershowitz, and that's essentially it. I mean, she's not parsing through the 102 pleading and saying, you know, this is wrong and that is wrong. And the fundamental reason for it SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592395 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is, she's never read the document prior to Barden and Gow issuing the statement, and what she is reacting to are people calling her and saying, you know -- THE COURT: Well, whatever she knew. Well, okay. All right. MR. PAGLIUCA: That's it. THE COURT: I guess we're as far as we can go on that. MR. PAGLIUCA: It is whatever she knew. But what is in the document is way broader, much broader, than her base of knowledge, or Barden's or Gow's, at the time this press release issued. So I think that's point number one. Point number two is, they apparently want to introduce a lot more information from the Jane Doe 102 CVRA litigation than this simple document, and we can address those as we go along. If the Court were to deem portions of this relating to Ms. Maxwell and Mr. Dershowitz relevant to this matter, we had proposed, as part of our pleadings, a redacted version of this, which is also to your point just now, your Honor. And my colleague points me directly to the statement, your Honor -- the first line, second sentence. "The allegations made by," and then it says Victoria , which is inaccurate by the drafter, "against Ghislaine Maxwell are untrue." And then it follows. But that is the backdrop to this. And she's responding to things about herself, not about anybody else that are contained in this pleading. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592396 29 H3ulgiva MR. CASSELL: And we have a point of agreement here, your Honor, now. We agree with the last point. The 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allegations that Ms. made against Maxwell are what's at issue in this case, not allegations against, you know, third Maxwell and of course Epstein, those kinds of things, but not other irrelevant players. But I think your Honor was exactly right. THE COURT: Well, so you would have no objection to the introduction of the motion to intervene, the portions that describe Maxwell or talk about Maxwell. MR. CASSELL: And Epstein, of course. MS. MENNINGER: No. MR. CASSELL: And Epstein. Because Maxwell isn't running around recruiting girls just for herself; she's running around recruiting girls for Epstein. So the allegation is against Maxwell and Epstein. The allegation that Ms. made was that Maxwell was recruiting girls to give to her boyfriend Epstein, so the allegations against Maxwell -- THE COURT: So you would not object to the redaction of everything else in that motion. MR. CASSELL: The principle is correct. The devil, of course, is in the details, because when you look at what they've redacted, here's one of the things they want to redact. Maxwell -- they want to redact this: "was a primary co-conspirator in Epstein's sexual abuse and sex trafficking SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592397 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scheme." They want to redact, She recruited in a manner -- this is what they want to redact, "in a fashion very similar to the manner in which Epstein and his co-conspirators coerced dozens of other children." So they want to redact everything that provides the context for what the allegations are. Ms. wasn't saying, hey, on one Tuesday I happened to bump into Maxwell and something happened. She was alleging a broader pattern of activity, that she was recruited into, as your Honor well knows, sex trafficking by Maxwell and Epstein. And so what I think -- THE COURT: Well, her allegation is that Maxwell was a co-conspirator. MR. CASSELL: Correct. THE COURT: We're not talking about -- MR. CASSELL: Yes, we are talking -- THE COURT: In our case, in our case, there's no crime charged. I mean, I understand the underlying -- MR. CASSELL: Sure. THE COURT: -- facts. So it would be anything, in the motion to intervene, that dealt with obviously Maxwell directly or a co-conspirator. MR. CASSELL: That's right. And the main co-conspirator here would be Epstein, of course. These girls were not being recruited, you know, just for Maxwell's personal consumption but for, obviously, Epstein, to satisfy Epstein's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592398 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sexual desires. When you look at what they're trying to redact, I think they're trying to make a mismatch out of the original allegations so it will be difficult for us to explain to the jury, well, why was this woman running around recruiting young girls if we can't mention, well, she was recruiting the young girls to take the sexual pressure off her and to satisfy the sexual desires of Mr. Epstein. That's why there was this vast -- THE COURT: Anything else you want to tell me? MR. CASSELL: Yes, your Honor. I mean, it's critical to use the context here. As your Honor is pointing out -- and I think you're even getting pushback from them on this basic point. This is the core of the case. These were the original allegations that Ms. made, and they say this wasn't what she was responding to. If you look at, for example, their pleading on June 6 of last year, there was only one public statement that existed on January 2nd to which Ms. Maxwell was responding. The document is the joinder motion filed in the Crime Victims' Rights Act case on behalf of plaintiff. That's what they said. That's what we said. We want to show to the jury the one document that set off this whole defamatory backlash, and what they want to do then is to redact it and essentially take out things like references to Maxwell being a co-conspirator, which means we won't be able to explain to the jury the appropriate context here. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592399 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Also, the other point that's I think important to remember is we're going to be seeking not just compensatory damages but punitive damages, and when we get to that point, which will be part of the initial phase -- I know the financial issues may be different, but we're going to be arguing our punitive damages case in the initial portion of the trial -- we have to prove that she acted with actual malice. Her state of mind is obviously a critical issue. And so the jury's going to be wondering, well, why would she do this? One of the points that we need to make is, why was Ms. trying to get into this case in Florida? It was a Crime Victims' Rights Act case. It was designed to rip up a plea agreement, a nonprosecution agreement. And that agreement said all of Epstein's co-conspirators get a free pass from criminal prosecution in Florida. Which directly goes to Ms. Maxwell's motivation for all this. THE COURT: How do we know that? MR. CASSELL: Well, because we're going to be arguing that. We have -- THE COURT: No. Arguing. How do we know that the nonprosecution agreement gave immunity to Ms. Maxwell? MR. CASSELL: Because it says it extends immunity to any of the "potential co-conspirators of Epstein." And we will introduce ample evidence at trial from which a reasonable jury could conclude that one of the potential co-conspirators of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592400 33 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Epstein was Maxwell. In fact, she was the number two, the most likely co-conspirator that benefited from that; his right-hand girl. His right-hand woman. I'm sorry. Ms. Maxwell. And so who got the benefit of that immunity provision? We're going to present to the jury it's Maxwell who got the benefit of the immunity provision. So why was it that she came out all guns blazing when Ms. filed a motion to join, to rip up the nonprosecution agreement? Because she had a horse in that race. She was trying to protect immunity And so again, we bear the burden acted with actual malice, that is, from a for herself. of proving that she vindictive motive rather than for benign reasons. And of course trying to keep yourself immune from crimes you've committed is a classic example of acting with actual malice. And that again is just one of the arguments, and we're going to be able to connect all those links in the chain through cross-examining Maxwell, through cross-examining Epstein, and by also introducing ample documents, presenting evidence of her direct involvement in criminal offenses. And I realize crimes haven't been charged, but we're going to show that there are going to be ample crimes that could have been charged, which is why she needed the immunity that was extended by the nonprosecution agreement. And which is why she attacked Ms. to make her allegations seem noncredible. And, I mean, if I understood the motion, they were in an effort to try SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592401 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sort of just saying, well, we're not really sure whether she's a victim or not. That's going to have to be proven to the jury. Fair point. We have no objection saying, look, these documents are coming in because they show the initial allegations that Ms. made. It's up to the plaintiffs to introduce evidence and to prove that's all true. We're going to shoulder that burden at trial. But what this motion seems to be designed to do, in our point of view, is to take out things like the allegation that Ms. was a co-conspirator of Epstein. They don't want the jury to hear that, and of course that is a pivotal part of our case. MR. PAGLIUCA: They used the term "actual malice." _ use the term "actual nonsense," your Honor. You know, I first have to say, unless we're going to close the courtroom or I get to respond in kind, half of what this argument is is in violation of the protective order right here. And it's lawyer argument. And there are no facts to back it up. Let's talk about the nonprosecution agreement. It is absolutely factual, Ms. Maxwell was never, not once, ever, contacted by the Palm Beach Police in reference to this investigation. She was never, not once, contacted by the FBI or the U.S. Attorney's Office in reference to this investigation. She testified in her deposition that she didn't hire a lawyer because she wasn't at risk in any of this. She SOUTHERN DISTRICT REPORTERS, P.C. EFTA00592402 H3ulgiva 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 didn't even know about any of this, your Honor. That's the evidence in this case. There is zero evidence that will be produced at trial to put Ms. Maxwell in any of th