25 UNITED STATES DISTRICT COURT

H3VOGIU1 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Plaintiff, v. GHISLAINE MAXWELL, Defendant. Before: x x 15 Civ. 7433 (RWS) Oral Argument New York, N.Y. March 31, 2017 10:10 a.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. HADDON, MORGAN AND FOREMAN, P.C. Attorneys for Defendant BY: JEFFREY S. PAGLIUCA, ESQ. LAURA A. MENNINGER, ESQ. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612250 H3VOGIU1 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 (Case called) THE COURT: Like all of you, you woke up in the middle of the night thinking about this case. I would like to see if I can clarify my understanding. In the motion to dismiss, I concluded, I think, that what was at issue was the truth or falsity of the plaintiff's allegations concerning sexual abuse and the activities of the defendant. I think that's my sense of my own opinion. Yesterday, we were discussing the redactions of the intervention motion. I got the sense, perhaps wrongly, that the plaintiff's position was that the defamation was the truth or falsity of the statements relating to the defendant. Period. Am I correct? MS. McCAWLEY: You are, your Honor, in that the statements about the defendant -- to be clear, because one of the allegations is, of course, she was a madam and a coconspirator with Epstein -- do involve Epstein. THE COURT: Listen. Leave the pejorative out. Okay? Please. MS. McCAWLEY: Sure. THE COURT: Simply because I'm trying to come to grips, obviously, with the scope of this case, which is a real issue, obviously. So is it you are restricting your claim to the truth and falsity of the statements about Maxwell? MS. McCAWLEY: Yes, that is the case, your Honor. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612251 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 3 statements about Maxwell and her activities, without using any description of what that is, but yes, as we've described in our pleadings. THE COURT: And whether or not the plaintiff was subject to sexual abuse as a minor is not part of it. I mean, yes, of course, whatever she was when whatever, but that issue we don't have to deal with. MS. McCAWLEY: I'm sorry, your Honor. I think I lost you there. I apologize. So the allegations in the complaint are that when our client came forward and said she was abused by the defendant and Epstein, the defendant came out and said she was lying about that abuse, and some of that abuse did occur when she was a minor. THE COURT: Yes. Well, okay. But there are other things that she sets forth in the Churcher articles, in the motion to intervene, there are a whole series of other things that are -- I mean, there are things that have been said, and my reading of the defendant's statement is, I read it to say all those things are false. But those are not at issue, as far as you're concerned. MS. McCAWLEY: Yes, your Honor. In fact, the omnibus motion we filed today -- and I think, if I'm following you correctly, this may help -- we were trying to streamline the case because there's other individuals, obviously, that my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612252 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 4 client made statements about. So we were trying to streamline the case to the statements about Maxwell and her involvement with Epstein. So in the omnibus motion you'll see, for example, that they have claimed she's made statements about other individuals, and we say that that's not what's at issue, what's at issue are the statements -- THE COURT: That may be an issue of credibility. That may be an issue of credibility. I'm talking about what we're going to go to the jury on. MS. McCAWLEY: Yes. And that is the statements that Maxwell made about my client. THE COURT: And that's it. MS. McCAWLEY: Yes, your Honor. THE COURT: Let me ask the defense. Does that clarify anything for you? MS. MENNINGER: Could I have one second, your Honor? THE COURT: Sure. Of course. MS. MENNINGER: Your Honor, I think it's slightly more nuanced. Plaintiff has claimed our client's statement is false. Our client's statement is not just limited to the little snippets that they included in their complaint, it's the entire statement. That entire statement talks about allegations against Ms. Maxwell have been proven untrue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612253 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 5 THE COURT: Yes. But the statement wasn't limited to those allegations. MS. MENNINGER: That's exactly right, your Honor, because right in the middle of that particular statement, the one that's at issue in this case, our client said, "Now her story has grown and evolved, and she's included allegations about world leaders and Alan Dershowitz, which he denies." We can't just take that part out of her statement, that's what Ms. Maxwell put in her statement. And your Honor, what we will ultimately be hearing from Ms. Maxwell about what she believed were the obvious lies that she was referring to and the allegations that she was referring to when she issued that statement. THE COURT: Now, one other question, and then we'll get to the business of the day. I apologize for this diversion. Let me ask you both. Suppose the plaintiff proves that she was sexually abused and that her story is substantially true but she does not prove the role that Maxwell had. Does she win? MS. MENNINGER: No, she loses, your Honor. THE COURT: I think she wins. MS. MENNINGER: Your Honor, the very first -- THE COURT: Other than what you've just said. MS. MENNINGER: Your Honor, our client can only be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612254 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 H3VOGIU1 alleged to have defamed someone based on facts, not opinions. THE COURT: Agreed. Agreed. MS. MENNINGER: And so she can -- the Davis v. Boeheim case is a perfect example of that, your Honor. She can only speak to facts about which she has personal knowledge. If plaintiff goes and proves that plaintiff went and had sex with Jeffrey Epstein at some point in time and our client wasn't there, our client's statement about that would be opinion, it would not be a fact based on personal knowledge. THE COURT: I mean, okay. But that's an issue of knowledge. That's a different -- MS. MENNINGER: You just said -- THE COURT: That's a different -- MS. MENNINGER: The hypothetical was if our client wasn't involved. If our client wasn't involved then it would be an opinion. THE COURT: Thanks very much. I'm glad for this clarity, which frankly, at the moment, alludes me. Okay, let's move on. Yes, I'll hear from the movant. MS. McCAWLEY: Thank you, your Honor. The first order of business we'd like to address, if it's okay with the Court, is our filing, which was 691, which is our omnibus motion in limine. And if it's okay with the Court, we've split that up a bit. I'm going to start with respect to that motion in limine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612255 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 7 What we attempted to do with our motion in limine was streamline the trial. And your Honor, based on the comments you've just made, if you want to give me guidance, I'll tell you what I'm thinking with respect to this and what we put forth in our filing. But there are statements that are attributed to my client in other articles and things. For example, there are statements about Bill Clinton being on the island, and the defense wants to bring in those statements to show that -- they believe they can show evidence that he wasn't on the island, so therefore, my client is a liar or is lying about that. Now, your Honor will remember, back in June we sought to depose him because we were concerned about that fact, that they were going to raise it, and we wanted to have him under oath -- THE COURT: Let's back up a little bit. MS. McCAWLEY: Sure. THE COURT: What and where was the statement made? MS. McCAWLEY: The statement was made in a March 5th article. So not the two articles we showed you yesterday -- THE COURT: The Churcher article. MS. McCAWLEY: Yes. But it was another article that came out in March of 2011. And the statement was with respect to my client saying she saw him on Epstein's island. She was introduced to him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612256 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 H3VOGIU1 8 there. Although no allegations of trafficking or anything of that nature, just that she was there. And they are seeking to introduce evidence through , who we'll discuss in a moment, they've proposed, and he's clearly an expert that was undisclosed, and through a FOIA record, and through the articles to allege that he wasn't on the island. And so in your Honor's order in 264-1, which is one of the sealed orders, you did not allow us to depose him because you said it was irrelevant. So we're now in a position where at trial they want to put forth that information against my client, and I don't have an under -oath statement from that individual saying whether or not he actually was. Now, what we know is he flew with Jeffrey Epstein at the same time 19 different times internationally and nationally, but we don't have him with respect to this particular allegation under oath. So we would say it would be highly prejudicial for them to be able introduce evidence saying that he wasn't there or that they have some proof or some expert saying he wasn't there when, in fact, we weren't able to ask him directly, the person who is at issue, under oath, whether or not he did, in fact, go there. So one of the streamlining of this case is that allegation has nothing to do with sexual abuse, it doesn't have to do with the statements -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612257 H3VOGIU1 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 THE COURT: It has to do with credibility. MS. McCAWLEY: Well, your Honor, I would say, if you're inclined to think that that has -- THE COURT: Well, look. I'm no genius. I don't claim any -- but you know, that is precisely what the defense is going to say. MS. McCAWLEY: Right. I understand, your Honor. And that's why we sought to depose him because it's inherently unfair -- THE COURT: Okay. So you would say I made a mistake. MS. McCAWLEY: No, your Honor. I think it should be excluded, and in my view, I think it's not relevant to the issue at trial here. But they are, of course, going to argue that it is and that they want to bring that in. In fact, like I said, they've got lined up Mr. THE COURT: Well, on the question of credibility, why isn't it relevant? MS. McCAWLEY: Because the statement -- so this case is about whether or not she was sexually abused and trafficked -- THE COURT: Now, that's where I started out. Is it about that? If that is your position, that's something else. If it's a question about her sexual abuse, in addition to, then that's something else. But you just said it isn't about that, it's just about Maxwell and did she tell the truth about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612258 H3VOGIU1 1 Maxwell. 2 Well, I suppose, I suppose -- I haven't heard the 3 other side and I haven't really thought it all out -- but I 4 suppose if she is untruthful in other instances, that may be 5 relevant to her credibility. 6 MS. McCAWLEY: Well, your Honor, if that's the Court's 7 position, again, we would be in a circumstance -- I mean, 8 there's a couple reasons why the evidence itself that they want 9 to put forth doesn't come in. 10 THE COURT: Well, that's a different thing. 11 MS. McCAWLEY: Sure. That's part of our motion, as 12 well, your Honor. 13 THE COURT: Sure. I read that. I understand that. 14 MS. McCAWLEY: Right. So on the same note, since 15 we're talking about this, I'll just tick off the few that fall 16 within this category, if you don't mind. I understand, your 17 Honor's position, so -- 18 THE COURT: Well, I'm not sure what my position is 19 right now. 20 MS. McCAWLEY: Okay. So with respect to -- there's 21 another category where there's been statements where my client 22 said that she was trafficked to foreign presidents and world 23 leaders that they want to bring into evidence. And in order to 2.1 streamline the case, we've said, well, there's none of those 25 people on the witness list, and just statements in an article SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612259 H3VOGIU1 1 of that nature shouldn't be able to come in. Because when we 2 talk about a character issue, what's at issue here is 3 reputation, and reputation to show the truthfulness of that 4 would not be able to be proven in that circumstance because we 5 don't have the other individuals there to make that statement, 6 so there's no substantive evidence on that point that would be 7 coming in. 8 And the third category is with respect to 9 Mr. Dershowitz, who is on the defendant's witness list for 10 trial, and we have a few points there to raise. I mean, one is 11 obviously that if that were allowed to come in, that causes the 12 trial to become a mini trial about whether or not he, for 13 example, was in the places where she says he was, his 14 calendars, his credit card receipts, his telephone records, all 15 of that. It gets into the issue, you know, obviously we have 16 another witness who says that they were in a similar 17 circumstance with respect to him. So it takes the trial away 18 from whether or not the allegations relating to Maxwell are 19 true or false and turns it into a trial about another 20 individual who we have not made a claim against who comes in. 21 There's also a problem with respect to that because he 22 is also -- he has claimed attorney/client privilege as to his 23 conversations and his advice with respect to Epstein which 2.1 relates to the issues with Maxwell. So in other words, he 25 would be able to testify what he says he didn't do, but then. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612260 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 12 any questions we wanted to ask him about Epstein or Maxwell he says he's got an attorney/client privilege. So we're hand-tied because we can't ask about the issues that we need to ask about with respect to that witness. So in my view, it's highly prejudicial to have him as a witness at trial when, again, our claims are not against him, and we have those issues. Now, you did have -- in your February 2nd order, you also precluded us from asking questions that we contended were non-Fifth Amendment questions of Jeffrey Epstein about Dershowitz, holding that those were not relevant. So we're in a situation where we have another witness that we are not able to elicit all of the information we need to be able to prove the truth or falsity of that, and again, it would be subject to a number of mini trials on that issue of Mr. Dershowitz. So with respect to those three categories -- and it also allows them to use the attorney/client privilege as a sword and a shield in the midst of a trial, which is inherently unfair to my client, as well. So in our view, it's highly prejudicial under 403. Those groupings should not come in. It should not be about, for example, Clinton and whether or not he was on an island, or Mr. Dershowitz or these other world leaders, it should be about the defendant and her statements that my client was lying when she claimed to be abused and trafficked in those statements. THE COURT: Just a second. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612261 H3VOGIU1 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. McCAWLEY: Sure. THE COURT: What you just said, could you repeat what you just said? MS. McCAWLEY: Yes. So the statements that Ms. Maxwell denied were statements that my client made that defendant and Epstein trafficked her, brought her in, had her participate in the sexual abuse of her and other females, she was in that circumstance, she lived that circumstance for a period of time, and so Maxwell came out and called my client a liar, said she was lying about those statements that she made, and said that, obviously, as you know, to the international press about my client and what her experience was with them. So with respect to that, your Honor, those are the categories that we believe would help streamline the case, and again, that those witnesses would be highly prejudicial. On the issue of the information that they'd like ro put in with respect to Mr. Clinton, they have whc they've identified. This is a former FBI director. THE COURT: I know. MS. McCAWLEY: You know, yes. So they've put him in without giving us a Rule 26 expert report. He was never disclosed during the time period. His report or what he's going to say, as we understand it, is that he's reviewed the FOIA response and that there's no evidence in his view that Clinton was on this island, again, even though he flew SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612262 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 H3VOGIU1 regularly with Mr. Epstein to other places. So again, we didn't get to depose him as an expert in this matter. We didn't know that he was going to be called as an expert. They're saying he's a lay opinion because he's a private investigator, your Honor. The case law says otherwise. He's been certified as an expert in these exact kind of cases. We put those in our brief. So your Honor, he is really a wolf in sheep's clothing. They're trying to put him on as a lay opinion when he's really an expert witness in this case with sufficient and sophisticated knowledge, that the jury will recognize him as someone who has expertise in this area so, your Honor, we believe he should be precluded from testifying. He has no personal knowledge, it's simply his reliance, as we understand it, on the one FOIA response letter. So your Honor, with respect to the FOIA response letter that's at issue that they are going to try to get into evidence, we've put forth in our papers, again, that's a hearsay document. It's highly prejudicial under 403. They say that it meets self-authentication, but unlike the documents that we showed, for example the 302 that have the seal on it, it has none of those qualifications. They cite to two cases, the Zamara case and the Gary case. Both of those involve getting into evidence underlying records that were produced by the government, not a FOIA letter. So what they're trying to produce is a letter that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612263 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 H3VOGIU1 15 says we've looked and we can't find these records that you've requested. Now, it doesn't address the fact that the government only typically retains records for a few years when they were requesting records from 15 years ago, so it doesn't have the indicia of trustworthiness to be able to say that this is actually the fact because, of course, as we know, the government regularly has to get rid of records. So to use this letter to say, 'Ah-hah, he was never on the island, ' when we never got to examine him under oath and say, 'You traveled with him a bunch. Did you also go to the island? My client says she met you there.' We didn't get to ask those questions, so we're in a situation now where that letter coming in would be highly prejudicial because the jury will wonder, well, what does he have to say about this? And we haven't been in a position to be able to do that. So your Honor, for all those reasons we believe that Mr. should be excluded, the FOIA letter should not come into evidence, and again, we believe that the issue of Mr. Clinton should not be an issue relevant to this trial. Next, your Honor, they also seek to include statements, hearsay statements and newspaper articles about Prince Andrew, and it's actually not his denial, as I understand it, Buckingham Palace's denial of the allegation of my client. But again, Prince Andrew is not on the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612264 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 16 list, we're not able to cross examine him, so what they want to do is introduce triple hearsay of Buckingham Palace saying what Prince Andrews said in a news article without the reporter against my client without our ability to cross examine him on that. So your Honor, they've tried to argue a little bit of a securitous way, I think that it's a verbal act on behalf of Prince Andrew, it doesn't meet that criteria, there's been no statement by -- there's been no action by my client against him, and what's at issue in this case is, again, Maxwell's statements against my client. The case that they cite actually, the Minemyer case, goes against them. It actually talks about how you would have to call the reporter, that that couldn't come into evidence. And so, your Honor, for those reasons, we believe that, again, that's a distraction, it's highly prejudicial to allow a triple hearsay document like that to come in without our ability to be able to cross examine that individual. So for those reasons, your Honor, we believe that that should not come in. They also made an argument that it's somehow an intervening cause or that, you know, it goes to the issue of she should be seeking damages from Prince Andrew, things of that nature. But as we know, because your Honor reviewed the case law with respect to the summary judgment, each individual is responsible for their own defamation, so it doesn't come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612265 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 H3VOGIU1 17 into consideration whether she could have sued six people for it, 20 other people for it, this case is about Maxwell and her defamation against my client. So again, your Honor, if you look at Sack on Defamation, it addresses that directly, and we believe that that should not come into evidence. So your Honor, that's the first chunk of the omnibus motion that I was addressing. I'm not sure how you want to take it, if you want to have opposing counsel speak on those issues now and then move to the others, or if you want us to keep moving through it? THE COURT: What's your preference? MS. McCAWLEY: I think keep moving through it would be great. THE COURT: What? MS. McCAWLEY: To keep moving it through it, if that's all right, so we can get through argument and then have them address it? THE COURT: Sure. MS. McCAWLEY: Thank you, your Honor. MS. SCHULTZ: Your Honor, this is Meredith Schultz for the plaintiff. The next article in the omnibus motion is to exclude testimony references to prior sexual assault. This is an issue that I spoke on yesterday related to another motion regarding the same, so I'll keep it brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612266 H3VOGIU1 But prior sexual assault, it's irrelevant to this action. It doesn't come in under 401. It doesn't involve defendant. It predates even meeting defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 These are also classic examples of evidence that should be excluded under Rule 412. The Rape Shield Law forbids evidence concerning these unrelated events involving Ms. . This rule should be strictly enforced, particularly because these events happened Rule 412(a) bars this evidence if it's offered to prove that she engaged in any type of sexual behavior to prove any type of disposition. It should also be excluded under Rule 403. This is extremely prejudicial, and because it is irrelevant, it would only encourage the jury to view Ms. This should also be excluded under 608(a), which limits interaction of evidence for specific instances of conduct in order to attack the witness' character for truthfulness. Now, I spoke about this at length yesterday. Defendant tries to offer two particular things to say that, oh, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612267 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 she wasn't truthful about something, about being sexually assaulted, but the documents themselves describe something that's unequivocally sexual assault under Florida law, something that is unequivocally nonconsensual. So that would honestly be another mini trial and would take us far afield of what facts are relevant to this case. And again, any minor probative value that's MR. CASSELL: Your Honor, I think I'm the next one up. For purposes of clarity, we're up to point number 7 in our omnibus motion. This one I think is just a very simple and straightforward one. We move to exclude derogatory sexual characterizations. This is a case that your Honor has been framing this morning. It doesn't require use of a term from defense counsel, for example, describing our client as a prostitute or as a slut. We thought we would get agreement when we saw the responsive papers from the defense, but as you know, they objected in it's entirety to this motion, so we're here asking that defense counsel not refer to our client as a prostitute, not refer to her as a slut, and they also advise their witnesses that such language would be inappropriate in a federal trial dealing with a defamation issue. On this particular point about prostitute, it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612268 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 H3VOGIU1 2J interesting. Am I conjuring up something that's not going tc happen? No, your Honor. The defendant's own expert report described our client as a prostitute. Your Honor has under advisement the expert report from Dr. Esplin, and so I deposed Dr. Esplin, and I said, "Are you sure that's an accurate term in the context of this case? Because we have a child who cannot consent to sexual activities." And he backed off immediately and agreed that that was an inaccurate term for him to use to describe my client, Ms. . So even the defense's own expert says the term "prostitute" is inappropriate. Your Honor has authority, of course, under Rule 611 to manage the trial, to avoid undue harassment or embarrassment. Also Rule 403 allows you to restrict things that would be substantially prejudicial with no probative value, which is exactly what we have here. So we would ask you simply to reign in derogatory language, both from witnesses and opposing counsel. MS. SCHULTZ: Your Honor, I'll be addressing the next several points in the omnibus motion, starting with number 8. I think I can narrow this issue a little bit at the outset. Ms. concedes here that illegal or nonprescription use of drugs during the years that she was with defendant is admissible. However, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612269 H3VOGIU1 21 1 2 3 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: And why do you have it in your expert's report? MS. SCHULTZ: Well, our expert is -- I'm assuming you're referring to Dr. Kliman, who is a physician. He's a medical doctor. He took a full -- THE COURT: There's a whole thing about it. Are you going to withdraw the -- MS. SCHULTZ: No, your Honor. We're only claiming damages with respect to the emotional distress suffered from the defamation. And also, taking drugs prescribed for various mental health issues is not the same thing as emotional distress. They're two different issues. So any marginal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612270 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 H3VOGIU1 22 probative value is outweighed by the prejudice. Again, this is only seeking damages based on defendant's defamation. I'm going to move on to point number 9. Ms. seeks to exclude any alleged criminal history from coming into this case. And the Federal Rules of Evidence bar the introduction of this evidence, full stop. As the Court is aware, the only criminal history could come into evidence is through Rule 609, but that rule itself bars this evidence because, one, there's no conviction, and two, the alleged crime does not go to truthfulness. Of the two parties, your Honor, Ms. is the only one who has not been convicted of a crime here, this is merely an alleged prior bad act which is excluded under Rule 404. And this alleged act, which Ms. denies, does not go to truthfulness, and that's an important point here. An accusation of a crime with no conviction does not go to truthfulness, especially a crime like this, which specifically is Knowing that this type of evidence is excluded, counsel for defendant has put forth an unsupported argument that t That is, of course, false. And moreover, the documentary evidence in this case, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612271 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 H3VOGIU1 23 which has been produced in discovery and submitted to this Court, shows that it was sending her with handwritten instructions about what to do when she gets there. So if this unsupported argument that defendant left the United States because of some then that makes defendant an accessory after the fact and implicates her in the wrongdoing. So I don't -- basically, there's just -- this argument is also undone by the fact that later, Ms. comes back to the United States to live here. She's not fleeing accusations, she was fleeing defendant. If she were worried about criminal liability in the United States, she wouldn't come back to live here. But the overall point is any marginal probative value from these allegations, which I don't think there is any, but it's far vastly outweighed by the prejudice it would cause Ms. and should be excluded under all those rules. Moving now to point 10. Ms. has requested that the Court exclude any evidence regarding special schooling, truancy, and juvenile delinquencies. For this argument, your Honor, I request that I approach the bench and give you a few documents upon which these arguments are based. I have four documents that I'm handing up. I have to get a little bit into the weeds here, so please bear with me. In this case, Ms. -- well, school SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612272 H3VOGIU1 2.1 1 records have been part of discovery. They show a history of 2 rampant truancy and failed courses. This constitutes prior bad 3 acts which are excluded under Rule 404, particularly since 4 these bad acts do not go to truthfulness, so they're also 5 excluded under Rule 608. 6 They should also be excluded because their prejudice 7 that it would cause Ms. greatly outweighs any probative 8 value and should be excluded under 403. 9 There's a huge remoteness issue here, your Honor. 10 These truancies and juvenile delinquencies took place many 11 years ago when she was a minor. There's a lot of case law on 12 this that is in Mr. brief on page 22 to 23. But what 13 you should be aware of, your Honor, is that a close examination 14 of records, looking up what the number codes on these 15 transcripts actually mean, it shows the opposite of the 16 argument that defendant advances in her response brief; that 17 she was in school, and therefore, not abused by her client. 18 To the contrary, the records show that she was not in 19 school over half the time she was supposed to be and did not 20 complete her courses. These transcripts are not 21 self-explanatory. Indeed, looking at the face of them, it 22 seems like she was enrolled and attending school, but much of 23 the information in these records are number codes used by the 24 These school records could 25 not be placed into evidence for all the reasons above, but if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612273 H3VOGIU1 25 1 you are inclined to do them, you could not place them into 2 evidence fairly without testimony regarding what all these 3 codes on the transcripts mean, or at a bare minimum, the 4 introduction of evidence and instruction that makes explicit 5 what all the codes on the transcripts mean. 6 Defendant either failed to do her due diligence on 7 this and looked at what the codes are before advancing this 8 argument, but either ill, it's not a good faith argument 9 because, as you can see in the document I handed up, these 10 codes and their meanings were detailed at length in 11 Ms. opposition to the motion for summary judgment, 12 and I would ask the Court to refer to the facts at page 32 of 13 the statement of facts. 14 So what the records actually show is rampant truancy, 15 years of absence from school while defendant was abusing her, 16 which show ample opportunity for abuse, and are, in fact, in 17 accord with the flight records, which have also been produced 18 in this case, which place Ms. on 23 flights with 19 defendant aboard Jeffrey Epstein's private plane. 20 So as these records actually show truancy, failed 21 grades, failure to complete courses, these should be excluded 22 under all the rules I cited earlier, or at a bare minimum, 23 instruction to the jury about what the codes mean and detailing 2.1 how many days of school Ms. actually attended, a number 25 that is conspicuously absent from defendant's brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612274 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 25 Turning next to plaintiff's motion in limine number 11. This is a related issue. We ask that the Court exclude characterizations of Ms. bad behavior during her childhood, including characterizations of her as a bad child or a runaway. Defendant's response to this tries to conflate two separate things; prior bad acts, an assault on her character on one hand, with a reputation for truthfulness of another. Prior bad acts she may have committed as a child, like running away, is inadmissible and a defamation action where the damages relate to her reputation. That she ran away from home or was an ill-behaved child does not go to truthfulness. These events also do not go to her reputation. Her reputation for truthfulness as an adult prior to the defamation is the only reputation that's at issue in this case. Defendant's defamatory statements damaged Ms. reputation when she was in her 30s. This does not open the door into evidence of Ms. generalized character, particularly one from a troubled childhood. Occurrences, such as running away from her home when she was a child, are simply prior bad acts under Rule 404 that should be excluded. They should also be excluded under Rule 405 because this is introduction of evidence to try to show her character. And Rule 608(a) also limits evidence and testimony about a witness' reputation for having a character for truthfulness or untruthfulness, it doesn't come in under that rule. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612275 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 27 Her reputation for truthfulness does not go to any bad acts she may have committed 20 years ago. And your Honor, even criminal convictions are generally not admissible 10 years after the fact. So presentation of this type of evidence is simply nothing more than a smear campaign, which is prescribed by multiple Federal Rules of Evidence. And finally, any marginal probative value of these bad acts as a child is vastly outweighed by the undue prejudice it would cause Ms. before a jury. Your Honor, now I'm turning to point number 12. We've asked the Court to exclude evidence relating to the tax compliance of Ms. Rule 401 is the first rule under which this should be excluded. The alleged tax compliance of her does not go to whether or not defendant defamed Ms. and does not go to whether or not defendant abused Ms. It should also be excluded under 403. It is highly prejudicial. It would give the wrong impression to the jury that Ms. organization is not tax compliant, which, in fact, it is a fact that defendant does not acknowledge in her briefing. Proving whether or not Ms. tax compliant would also be a mini trial and, frankly, a sideshow to this case. Furthermore, all of defendant's conclusions about is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612276 H3VOGIU1 25 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 Ms. tax compliance are based on an errant report by her purported expert, an expert who should be excluded from testifying because his report lacked methodology and he opined on topics far afield from his expertise. Second, any allegations that her is not tax compliant is prejudicial, misleading, confusing to the jury because it has nothing to do with the claim at issue in this case. Your Honor, we asked for defendant's tax returns in this case. If they go to truthfulness, as defendant argues, they also go to defendant's truthfulness. At this point, we're not going to get them until the first day of trial, so we will not be able to effectively cross examine defendant on those tax returns, and we won't be able to see until then if she's paid taxes on all the money and gifts and in-kind payments from Epstein that she's received or has kept that away from the government. Unlike Ms. tax information, defendant's tax information goes to our case in chief and is relevant evidence. On point number 13, we move to exclude evidence relating to Ms. alleged tax compliance. Your Honor, this is a defamation action where reputation is at issue. Tax compliance does not go to a reputation, it is a private matter. Second, there is no evidence in this case that any government, believes that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612277 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 217 she is noncompliant with her taxes. Defendant's purported expert's evaluation of this is wholly flawed, as explained in Ms. motion in limine on the same. Similarly, Ms. taxes are wholly irrelevant to this case. Even actions brought by the government, your Honor, where the cause of action is centered on nontax compliance exclude evidence of prior tax noncompliance when it takes the case too far afield of the issue being tried. Courts also exclude this evidence under 403 if there's no substantial nexus between the alleged tax noncompliance and the matter at hand. Here, defendant fails to show any type of substantial nexus to this defamation claim. None whatsoever. Additionally, resolving Ms. tax compliance, this is a point that's in dispute among the parties, and resolving such an issue would also involve another mini trial where Ms. would put on evidence of her tax compliance and, at the end of that mini trial, the jury would have no more information whether or not defendant defamed Ms. when she called her a liar about being sexually abused. Trying to make this an issue, this is simply a device for putting the settlement agreement and the amount between Ms. and Jeffrey Epstein into evidence. As has been briefed extensively, such a settlement payment is tax exempt under the United States law, but that's all this is, it's a device to try to get an improper admission SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612278 H3VOGIU1 30 1 2 4 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of a settlement amount between Ms. and Jeffrey Epstein. Accordingly, this should be completely excluded because any marginal probative value this has on the claims is greatly outweighed by the prejudice to Ms. I am not up for the next one, so I'm going to take a break. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612279 H3VOGIU1 31 We don't want to get into that in front of the jury in 10 this particular case. This is a blame the victim tactic that 11 shouldn't be allowed. This has very marginal, if any, 12 probative value and a very significant prejudicial effect 13 because the jury will potentially blame the victim for staying 14 with her abusive spouse. 15 Now, in addition, you'll notice from the pleading that 16 the defendants aren't intent just on asking questions about 17 this, but they also want to go into the whole 18 19 20 obviously, has even less probative value than the information I 21 was discussing a moment ago and should be independently 22 excluded. 23 The next issue up is item 15. And here, we ask to 24 have excluded any suggestions that sex with a 17-year -old is 25 permissible. You will recall that there's debate about exactly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612280 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 H3VOGIU1 32 what years and what birthdays were in play and exactly what Ms. said about whether she was 15, 16, or 17. Fair enough. They can cross examine her about, 'Did you say 16 when you were, in fact, 17,' or whatever it is. We're not trying to exclude that. The limited point that we're trying to address here is that they shouldn't say, 'Ah-hah, she was 17, therefore, she's fair game.' Under Florida law that we've cited in our pleadings, there is no possibility of a child under the age of 18 consenting to sexual activities of the nature that are at issue here, and therefore, the defendant should be precluded from making that kind of suggestion. And so that's item 15. MS. SCHULTZ: Turning to item 16 in the omnibus motion. Ms. has moved the Court to exclude medical records. Here, I would actually like to direct the Court's attention to defendant's response. Defendant here does not cite a single case where a court allowed admission of unrelated and irrelevant medical records into evidence at trial. Defendant's brief also doesn't show how any medical records are relevant here, and there are privacy issues at stake. In fact, defendant does not cite to a single case in which a court allows any medical records into evidence. In defendant's entire response she cites two cases only. Neither of them have anything to do with what documents SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612281 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 H3VOGIU1 might be admitted at trial. Both are orders resolving discovery disputes under Rule 26. Apart from her medical records, while defendant was abusing her, such as when defendant and the psychological records related to Ms. , which have been produced, which incidentally are from 2011 and name defendant as her abuser, no other medical records are relevant and should be excluded under Rule 401. Ms. is seeking damages for emotional distress from defamation. It does not open up the flood gates to every single medical issue she's ever had in her life. Ms. has produced records, everything from These are not relevant, and we can have a ruling in advance of trial that these things should be excluded. Defendant only seeks to use these records to confuse the issues before the jury. Defendant offers no reason for addressing the relevance of such documents one by one at trial, and I think these can be safely excluded at this juncture. MS. McCAWLEY: Your Honor, next is number 17, which we addressed in our papers, as well, about the prior settlement agreement. You've heard about it in this case, and we have said that that should not come into evidence. I think they'd like to use it to propose that that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612282 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 H3VOGIU1 amount has something that the jury should consider. Your Honor, the papers set forth very clearly that there's a specific rule of evidence directly on point with respect to settlement agreements, and they can't be used in that manner. Your Honor, we cite to our papers on that with respect to any prior settlement agreement being entered into evidence at the trial. MR. CASSELL: I believe I have the next three. Item 18 then is defamation litigation. And your Honor is aware that there was a separate lawsuit that's spun out of this situation where Cassell and Edwards filed a defamation action in Florida State Court against Alan Dershowitz. Alan. Dershowitz then counterclaimed. That was litigated in Florida State Court for about a year. Ultimately, the parties settled their differences in an undisclosed financial arrangements and, as part of the comprehensive settlement, Cassell and Edwards then withdraw summary judgment against Dershowitz. It was as expressly understood when the parties agreed upon this confidential settlement, there was then a statement in which it was said that Ms. reaffirms her allegations, and the withdrawal of the reference to the filings is not intended to be and should not be construed as being an acknowledgment by Edwards and Cassell that the allegations made by Ms. were mistaken. There was a portion of the statement that talked about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612283 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 H3VOGIU1 35 "mistake", and that was indicated in the pleading withdrawing the summary judgment motion as follows: "Edwards and Cassell do acknowledge that the public filing in the Crime Victims Rights Act case of the client's allegations against Defendant Dershowitz became a major distraction from the merits of the well-founded Crime Victims Rights Act case by causing delay and, as a consequence, turned out to be a tactical mistake." "Tactical mistake." "For that reason Edwards and Cassell have chosen to withdraw the referenced filing as a condition of the settlement." That's all a very interesting lawsuit, but that's a lawsuit that does not have Ms. as a party. It was Cassell and Edwards versus Alan Dershowitz, with claims going back and forth. Cassell and Edwards were, of course, vindicating their own professional interests and their professional reputation responding to the attacks that had been made by Mr. Dershowitz, and they chose to settle the case, as did Mr. Dershowitz, for undisclosed financial reasons. And also, from the fact I think your Honor is now aware, that there were some witnesses who were not available. has come forward in this case to say that she was and that was information that has only recently become available. The point is, you have enough business on your hands SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612284 H3VOGIU1 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 without getting into the details of another separate lawsuit that did not involve Ms. as a party, and so we've moved in limine. And let me make clear that I emphasize the narrowness of our motion here. We seek to preclude evidence involving that litigation. Your Honor has already heard from my colleague, Ms. McCawley, who has presented our argument for why Dershowitz should not be in this case at all, and of course, if we prevail on point 1, this point becomes irrelevant. But in addition to point 1, we don't need to be getting into the details of the separate lawsuit. It's not relevant to the case of versus Maxwell. Defendants, in their responsive brief, if I understand correctly what they say is, oh, well look. Why didn't Ms. join the lawsuit or why hasn't she filed a lawsuit against Dershowitz? What's going on there? Well, of course, your Honor is aware, there are a variety of statutes of limitation around the country, and indeed around the world. Ms. has not -- those statutes have not all run at this point. There are varying considerations that go into whether or not someone like Ms. would file a lawsuit, and these issues shouldn't be discussed in front of the jury. That's nothing to do with this particular lawsuit. Moreover, defendant apparently argues that statements SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612285 1 2 3 4 H3VOGIU1 37 that Edwards and Cassell made in this other lawsuit are somehow binding on Ms. . Edwards and Cassell had separate legal counsel, Florida attorney Jack Scarola. Whatever was going on in that case