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 APPEARANCES BOIES, SCHILLER & FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. MEREDITH L. SCHULTZ, ESQ. Oral Argument New York, N.Y. March 31, 2017 10:10 a.m. District Judge 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. EFTA00803113 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. EFTA00803114 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. EFTA00803115 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. EFTA00803116 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. EFTA00803117 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. EFTA00803118 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. EFTA00803119 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 Louie Freeh, 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. EFTA00803120 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. EFTA00803121 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. EFTA00803122 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. EFTA00803123 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. EFTA00803124 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 to put in with respect to Mr. Clinton, they have Louie Freeh who 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. EFTA00803125 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. EFTA00803126 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. Freeh 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. EFTA00803127 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. EFTA00803128 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 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. EFTA00803129 H3VOGIU1 18 1 2 3 4 5 7 21 22 23 24 25 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. EFTA00803130 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 she wasn't truthful about something, So that would honestly be another mini trial and would take us far afield of what facts are relevant to this case. 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. EFTA00803131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2 2 2 2 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, . 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. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803132 H3VOGIU1 21 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 It is also, of course, highly prejudicial and should be excluded under Rule 403. 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, They're two different issues. So any marginal SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803133 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 way 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, And moreover, the documentary evidence in this case, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803134 1 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU1 which has been produced in discovery and submitted to this Court, shows that it was defendant who 23 Moving now to point 10. Ms. has requested that the Court exclude any evidence regarding special 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, sc please bear with me. In this case, Ms. -- well, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803135 H3VOGIU1 21 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This constitutes prior bad acts which are excluded under Rule 404, particularly since these bad acts do not go to truthfulness, so they're also excluded under Rule 608. They should also be excluded because their prejudice that it would cause Ms. greatly outweighs any probative value and should be excluded under 403. There's a huge remoteness issue here, your Honor. There's a lot of case law on this that is in Mr. brief on page 22 to 23. But what you should be aware of, your Honor, is that a close examination of records, looking up what the number codes on these transcripts actually mean, it shows the opposite of the argument that defendant advances in her response brief; that and therefore, not abused by her client. These transcripts are not self-explanatory. Indeed, looking at the face of them, it seems like she was enrolled and attending school, but much of the information in these records are number codes used by the These school records could not be placed into evidence for all the reasons above, but if SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803136 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 you are inclined to do them, you could not place them into evidence fairly without testimony regarding what all these codes on the transcripts mean, or at a bare minimum, the introduction of evidence and instruction that makes explicit what all the codes on the transcripts mean. Defendant either failed to do her due diligence on this and looked at what the codes are before advancing this argument, but either way, it's not a good faith argument because, as you can see in the document I handed up, these codes and their meanings were detailed at length in Ms. opposition to the motion for summary judgment, and I would ask the Court to refer to the facts at page 32 of the statement of facts. SOUTHERN DISTRICT REPORTERS, P.C. 25 EFTA00803137 1 2 3 4 5 6 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, 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 is inadmissible and a defamation action where the damages relate to her reputation. That she or was an 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 door into evidence of Ms. particularly one from a as This does not open the generalized character, Occurrences, such 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. EFTA00803138 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. does not go to whether or not defendant defamed Ms. 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 Proving whether or not Ms. ould also be a mini trial and, frankly, a sideshow to this case. Furthermore, all of defendant's conclusions about and SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803139 H3VOGIU1 28 1 Ms. 2 5 Second, any allegations that 6 is prejudicial, misleading, confusing to the jury 7 because it has nothing to do with the claim at issue in this 8 case. 9 Your Honor, we asked for defendant's tax returns in 10 this case. If they go to truthfulness, as defendant argues, 11 they also go to defendant's truthfulness. At this point, we're 12 not going to get them until the first day of trial, so we will 13 not be able to effectively cross examine defendant on those tax 14 returns, and we won't be able to see until then if she's paid 15 taxes on all the money and gifts and in-kind payments from 16 Epstein that she's received or has kept that away from the 17 government. Unlike Ms. tax information, defendant's 18 tax information goes to our case in chief and is relevant 19 evidence. 20 On point number 13, we move to exclude evidence 21 relating to Ms. alleged tax compliance. Your Honor, 22 this is a defamation action where reputation is at issue. Tax 23 compliance does not go to a reputation, it is a private matter. 2.1 Second, there is no evidence in this case that any 25 government, either United States or believes that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803140 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. EFTA00803141 H3VOGIU1 30 1 2 3 4 5 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. MR. CASSELL: Again, your Honor, I'm up to number 14 now, the issue of Ms. being This is not relevant or minimally relevant. It's Ms. burden, of course, to show the emotional distress damages that she suffered as a result of Ms. Maxwell's defamatory statement, and the jury can agree or disagree with whether she's carried her burden of proof. If we understand the defendant's argument correctly, they say, well, this would have been a distressing event in your life and, therefore, we should be free to introduce it in front of the jury. Of course, that argument would allow, if accepted, essentially any bad thing that's happened in any plaintiff's life to be introduced if they seek emotional distress damages because, my goodness, this event here or there had some emotionally distressing effect on you. So it has minimal to low probative value, and the prejudice is very substantial. Your Honor, obviously, has a great deal of experience and are well aware of the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803142 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 31 attitude that has to be confronted in various cases. Frequently, if there's that's at issue, an expert witness comes in to explain to the jury, oh, why didn't And there is a whole literature that I know your Honor is familiar with and that we cited in our brief, as well. We don't want to get into that in front of the jury in this particular case. This is a blame the victim tactic that shouldn't be allowed. This has very marginal, if any, probative value and a very significant prejudicial effect because the jury will potentially blame the victim for staying with her abusive spouse. Now, in addition, you'll notice from the pleading that the defendants aren't intent just on asking questions about this, but they also want to go into the That, obviously, has even less probative value than the information I was discussing a moment ago and should be independently excluded. The next issue up is item 15. And here, we ask to have excluded any suggestions that sex with a 17-year -old is permissible. You will recall that there's debate about exactly SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803143 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. EFTA00803144 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 took her to a hospital here when she was only 17, 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. These are not relevant, and we can have a ruling in advance of trial that these things should be excluded. I 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. EFTA00803145 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. EFTA00803146 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 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 a traffic to Alan Dershowitz in the same way that Ms. alleges, 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. EFTA00803147 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. EFTA00803148 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 isn't binding on Ms. 5 Under the relevant rules, an attorney's statements are 6 binding on a client only on a matter within the scope of the 7 relationship. And this was vindicating separate professional 8 interests, this was not vindicating some interest of 9 Ms. 10 So for all those reasons, we ask that the defamation 11 litigation between Dershowitz and Edwards and Cassell be 12 excluded. Of course, you have the separate issue of Dershowitz 13 in front of you already. 14 Let me turn then to point number 19. Here again, we 15 have a narrow issue presented to your Honor. We are asking 16 that you exclude Judge Marra's ruling on the joinder motion. 17 As your Honor is well aware, the triggering event in this case 18 was when Ms. , then known as Jane Doe Number 3, filed a 19 motion to join Jane Doe 1 and Jane Doe 2 in the Florida pro 20 bono Crime Victims Rights action. 21 Now, Judge Marra denied that motion to join, but at 22 the same time he said, "The reason I'm denying the motion to 23 join is you can participate in the case in other ways without 2.1 being a formal party." He cited, and I quote, "Of course, Jane 25 Doe 3 can participate in this litigated effort to vindicate the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803149 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 rights of similarly situated victims" -- THE COURT: I'm familiar with it. MR. CASSELL: Okay. Right. So that's Judge Marra's ruling. And you understand that was obviously on a technical joinder issue. The joinder issue, whether that was a good joinder motion or a bad motion, has nothing to do with whether or not Ms. was defamed. THE COURT: How do you propose to handle the joinder motion evidentially? MR. CASSELL: Right. We think the joinder motion should simply come into evidence as the pleading to which Ms. -- I'm sorry -- Ms. Maxwell was responding. THE COURT: Lock, stock, and barrel? MR. CASSELL: So we are obviously waiting for guidance from your Honor. For example, if you say, look, Dershowitz, let's just not get into that, that's -- THE COURT: That didn't answer my question. Please. MR. CASSELL: I apologize. THE COURT: You talk about many trials, many arguments. You want to put in the entire motion? MR. CASSELL: Yes, unless your Honor -- I want to be direct here. Yes. However, if you say, look, Dershowitz isn't coming into this case, there are some allegations about SOUTHERN DISTRICT REPORTERS, P.C. EFTA00803150 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 39 Dershowitz that we would then believe, in light of your ruling, should be redacted. But until we have any rulings from your Honor restricting the case, it's our position that all -- THE COURT: But you don't have an edited version of the intervention motion that you would like me to consider. MR. CASSELL: We would propose one once we get rulings from your Honor on the motions in limine. THE COURT: By the way, just parenthetically, folks, these motions in limine are good fun, and we'