# Profoundd archive — Epstein Files
# Bates number: EFTA01737512
# Title:        UNITED STATES DISTRICT COURT
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=== SUMMARY ===
1 G6ndgium UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff, New York, N.Y. v. GHISLAINE MAXWELL, Defendant. Before: x 15 Civ. 7433(RWS) June 23, 2016 12:19 p.m. HON. ROBERT W. SWEET, District Judge APPEARANCES BOIES, SCHILLER & FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. McCAWLEY MEREDITH L. SCHULTZ HADDON MORGAN AND FOREMAN, P.C. Attorneys for Defendant BY: JEFFREY PAGLIUCA LAURA A. MENNINGER DAVIS WRIGHT TRE


=== EXTRACTED TEXT ===
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
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25 Plaintiff, New York, N.Y. 
v. 
GHISLAINE MAXWELL, 
Defendant. 
Before: x 15 Civ. 7433(RWS) 
June 23, 2016 
12:19 p.m. 
HON. ROBERT W. SWEET, 
District Judge 
APPEARANCES 
BOIES, SCHILLER & FLEXNER LLP 
Attorneys for Plaintiff 
BY: SIGRID S. McCAWLEY 
MEREDITH L. SCHULTZ 
HADDON MORGAN AND FOREMAN, P.C. 
Attorneys for Defendant 
BY: JEFFREY PAGLIUCA 
LAURA A. MENNINGER 
DAVIS WRIGHT TREMAINE LLP 
Attorneys for Respondent Sharon Churcher 
BY: ERIC J. FEDER 
LAW OFFICES OF 
Attorneys 
BY: GREGORY L. 
RACHEL S. GREGORY L. POE PLLC 
for Respondent Jeffrey Epstein 
POE 
LI WAI SUEN 
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25 (Case called) 
THE COURT: Extending discovery. 
MS. McCAWLEY: Yes, your Honor. This is Sigrid 
McCawley on behalf of the plaintiff, and we had filed a motion 
for additional time to complete six depositions. Your Honor 
may recall that we received an order on Monday that allowed for 
alternative services to three of the witnesses that we were 
seeking to depose. Our discovery cutoff right now is set for 
June 30th, which is I believe next Friday, if I'm correct. So 
at present we have six witnesses that we still need to depose, 
the three that we had alternative service for, and then we have 
Mr. Ross GOw, who was the defendant's agent who issued the 
defamatory statement, Mr. Brunel --
THE COURT: How much time do you want? 
MS. McCAWLEY: Sorry. We were requesting 30 days to 
complete those depositions to coordinate with their counsel and 
then coordinate with the defendant's counsel and get those set, 
and I believe we can do that without altering the Court's 
deadline for a trial, which is set presently for November 
I'm sorry, October 17th. 
THE COURT: OK. What is wrong with that? 
MR. PAGLIUCA: Your Honor, in theory, initially there 
is nothing wrong with that. It seems to me that we're not 
going to complete a variety of discovery issues by July 1. The 
problem, I think, your Honor, is the cascading effect of that 
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25 extension. 
And if I could digress for a moment and just a moment? 
When we were here I think in March, the Court raised the issue 
of was this enough time for discovery at that time. I told the 
Court I didn't think so, and I didn't think that the trial date 
was reasonable as a result of what I perceived to be problems 
going forward with discovery. Counsel on the other side 
opposed my suggestion as to extension of time at that point and 
we proceeded. The Court agreed with the plaintiff and not with 
me. 
The problem I see, your Honor, is that now we are 
scheduled to have expert disclosures due in July, dispositive 
motions in August, and a trial date in October. I don't 
believe that it is feasible, if we continue discovery out until 
the end of July, to have expert discovery done by the end of 
August. I don't believe it is going to be feasible to have 
dispositive motions completed in the time set by the Court, and 
all of that is going to push into whether or not we have an 
October 18th trial date. 
I think the Court also needs to consider, your Honor, 
and of course is now familiar with the volume of paper that 
gets filed in this court on a regular basis at all hours of the 
day and night, and I anticipate that there are going to be 
significant evidentiary issues that the Court is going to need 
to rule on in advance of trial. The Court sees a harbinger of 
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those issues today, I think, as a result of these subpoenas. 
All of that tells me that the prudent course of action in my 
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25 view is to sort of try to sit down and rework some of these 
discovery deadlines with an idea that we're going to actually 
have realistic dates. 
THE COURT: OK. Good. I'll extend the deadline 30 
days. I'll direct counsel to meet and confer and see if they 
can come up with a schedule that both sides will agree upon. 
Second, the plaintiff wants to maintain certain 
confidentiality designations. What is the problem? 
MS. McCAWLEY: Yes, your Honor. 
So, with respect to our revised Rule 26 disclosures, 
we, in order to divulge all information relevant to the case, 
had a list of individuals on there who are allegedly victims of 
sexual abuse themselves as minors or witnessed things. So we 
designated under our protective order in this case that Rule 26 
disclosure as confidential. It was challenged under the 
Protective Order. Once it is challenged, we have a ten-day 
window to file something with the Court. So we filed our 
motion for the protective order. 
On Friday of this past week, on the 17th, they issued 
a new defendants issued a new Rule 26 disclosure with 42 new 
names on it, those of which were on our disclosures, without 
marking it as confidential. So I sent them an email just 
asking them to hold that as confidential until the Court has an 
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25 opportunity to rule on whether or not those names can remain 
confidential under the protective order. So that is the status 
as we are right now. 
So we are awaiting a ruling. We believe those 
individuals should be protected under the Court's protective 
order and those names kept confidential during the course of 
this, and it is my understanding that defendants oppose that 
position. 
THE COURT: What is the attack? 
MR. PAGLIUCA: Well, your Honor, under the terms of 
the protective order, certain categories of information is 
likely confidential. People's names, in my view, are not 
confidential. I didn't choose to list these folks in what I 
understand is a Rule 26(a) disclosure, which is a good faith 
disclosure of people who may have information relevant to the 
claims or defenses in the case. That's their listing. All it 
is is the names of people. 
I have absolutely no idea or ability to understand why 
someone's name could be considered to be confidential. It is 
their name. They use it every day. They walk around with it. 
They have a driver's license with it. I don't understand how 
names in a 26A(a) disclosure could be deemed confidential. 
And what I view this as is just simply, you know, 
another step in the process here of preventing access and use 
of information. 
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25 THE COURT: Well, you've got the information. 
MR. PAGLIUCA: I do have the information. 
THE COURT: Yes. 
MR. PAGLIUCA: Why is it confidential? 
THE COURT: Why? 
MS. McCAWLEY: May I address that, your Honor? Did 
you want me to address that? 
THE COURT: Yes. 
MS. McCAWLEY: Sorry. So with respect to the reason 
why individuals who may have been victims of sexual assault 
would be confidential, there is case law that we cite in our 
brief, Doby v. Evans,  which deals with using, for example, 
pseudonyms of victims --
THE COURT: Let's just -- I think we can shorthand in 
the context of the patois of this case. 
Victims. OK. You want to maintain the 
confidentiality of the identity of the victims. OK? 
MS. McCAWLEY: Yes, your Honor. 
THE COURT: Beyond that? 
MS. McCAWLEY: Right. Beyond that we are fine. 
THE COURT: OK. All right. That will be maintained. 
MS. McCAWLEY: Thank you. 
THE COURT: Apple and Microsoft. Let me ask the 
defense, seems to me the law bars the subpoenas. 
MR. PAGLIUCA: I don't understand why, your Honor. I 
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25 think it's a legitimate Rule 45 subpoena. I don't understand 
why it would be barred under Rule 45. There is no objection by 
the providers of the information. They have indicated to us 
that if there is a release that's provided to them by the 
plaintiff, they will turn over the information. And I don't 
understand what the problem is. This is information indeed, 
your Honor, that the plaintiffs are required to produce to us 
under our discovery requests and have not, which resulted in 
these Rule 45 subpoenas. After the Rule 45 --
THE COURT: Well, as far as Apple, my understanding 
about Apple is that with respect to that, that material has 
been reviewed by counsel and everything has been turned over 
that's appropriate. 
MS. SCHULTZ: That is correct, your Honor. 
MR. PAGLIUCA: Well, if that's true, your Honor, then 
the issue is moot and I agree. 
THE COURT: If what? 
MR. PAGLIUCA: The issue is moot if that is true. 
THE COURT: So Apple is out. 
Now, the problem with Microsoft, I'm not quite clear. 
MR. PAGLIUCA: The problem for me or the problem for 
them? 
THE COURT: The problem for the plaintiffs. 
MS. SCHULTZ: Thank you, your Honor. Meredith 
Schultz, from Boies, Schiller & Flexner, on behalf of Ms. 
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25 My client had two email accounts with Microsoft. 
They are personal emails accounts. We have not been able to 
access that. 
THE COURT: Why not? 
MS. SCHULTZ: Well, it appears for one -- there is one 
called live.com, and it appears for that, that that has been 
administratively deleted. I don't have personal knowledge of 
that, but when you put in the email address to try to recover 
it, I get a message saying we don't recognize this one, "this 
one" being the email address. That is Exhibit 1 to our brief 
on this matter. 
We wrote a letter to opposing counsel citing some 
governing provisions of Microsoft's email policy that indicates 
that due to inactivity they delete accounts after a certain 
amount of time. It's my understanding that that has happened 
to that account but I can't say so for sure. So we are unable 
to access that whatsoever. 
The second account is a hotmail.com account. We have 
also been unable to access that. It appears that it still 
exists, but despite multiple and diligent attempts to get into 
that account, we have been unable to. And I have been involved 
in those attempts myself personally. Accordingly, we have 
captured and produced every electronic document to which we 
have access. 
And I'd like to speak a minute about the legality of 
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25 the Microsoft subpoena. Even under Rule 26, it is a hopelessly 
broad subpoena. It is abusive civil discovery and on the face 
of it appears to violate the Electronic Communications Privacy 
Act and the Stored Communications Act, federal laws. The email 
seeks -- excuse me. The subpoena seeks every email that has 
ever been sent to that account or sent from that account. 
That's every single personal email. This is without 
limitations, without exceptions, without a timeline. And 
pursuant to these subpoenas, these emails are to be turned over 
to defense counsel. So, plaintiff's counsel would not have an 
opportunity to review for attorney -client privilege email, 
review for relevance, and it wholly circumvents the protections 
of the discovery process, which is why courts who have looked 
at this issue have consistently rejected these broad subpoenas. 
Defendants know that they are not entitled to every 
single personal email plaintiff has ever sent or ever received 
in the course of however many years these accounts were open. 
In fact, Judge Kozinski in the Ninth Circuit allowed a civil 
suit against those who propounded these improper subpoenas, and 
that was with regard to a professional email account, as 
opposed to personal email accounts, the issue in this case 
THE COURT: Do we know what the date of this account 
is? 
MS. SCHULTZ: It's an old account. I think, 2011 -- I 
know that it was -- at least one of them was active in 2011. 
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It's impossible for me to determine at this point when it was 
opened and when it was last used because we don't have access 
to them. 
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25 THE COURT: Yes. OK. 
MR. PAGLIUCA: Your Honor, this is the problem and I'm 
going to be frank. This is a hide-the-ball problem. They tell 
us -- so let me backup. 
We were originally told these are the only email 
accounts that the plaintiff had. When we deposed her, we found 
out about these accounts. We then get into an issue with 
counsel telling us, oh, we've done this due diligence search 
and we can't access any of this information, these accounts are 
closed. Well, then we look into it a little bit further and we 
find out, indeed, the accounts are not closed; indeed, they 
have been active, and there are indeed emails that are relevant 
to the issues in this case that were sent and received out of 
these accounts. That's a fact here. 
Now, all they need to do, if they want to avoid 
electronic privacy issues, is comply with their discovery 
obligations, execute a release, and send it to Microsoft. 
Microsoft will then give them the information. That's what we 
have been told in response to this subpoena. 
So to sit here and say, oh, it's overbroad and it's a 
problem and you can't do it, you know, you can't have it both 
ways. You either can't avoid discovery of something that you 
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25 are required to give up and then say, gee, we don't have access 
to it. That's the conundrum here, your Honor. 
I'm sorry we are here at this point. I agree, if 
there is privileged information in there, maybe somebody should 
review it. But when you tell opposing counsel we don't have 
access to it and the account is closed and that's indeed not 
true, it seems to me that you have forfeited your ability to 
then stand up and say the subpoena is overbroad. 
THE COURT: Forgive me, but what's the basis upon 
which you say it's not true? 
MR. PAGLIUCA: The account is not closed? 
THE COURT: Yes. 
MR. PAGLIUCA: Because we have been told that by 
Microsoft when we issued them the subpoena. 
MS. SCHULTZ: Can I address that really briefly? 
My communications regarding these accounts are in 
letters that are attached to the briefs in this case. I never 
said that the Hotmail account was closed. I said that we are 
unable to access it. 
With regard to the Live.com account, I said it appears 
to be closed because the website does not recognize the email 
address. I never told them that the accounts were closed. 
I am more than happy to sign a release to Microsoft 
for any data that they might have to be delivered to 
plaintiff's counsel, at which point we will be more than happy 
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25 to run our search terms, review it, and produce anything that 
is relevant. 
THE COURT: That is good. 
MS. SCHULTZ: But the subpoenas are requesting that 
all of our data be turned over to defense counsel. 
THE COURT: OK. Well, so what we'll do is at the 
moment -- yes, OK, we'll quash the subpoena on Microsoft, with 
the understanding that that's not on the merits and it can be 
renewed, if necessary. Also, on the understanding that the 
plaintiffs will do whatever is necessary to get access to these 
accounts, review them, and determine -- treat it as the Apple 
accounts have been treated. 
OK. So that solves that problem. 
Churcher's motion to quash. 
MR. PAGLIUCA: Your Honor, before we move on, I have 
one point of clarification with regard to the earlier ruling 
about counsel conferring about scheduling going forward. 
THE COURT: Yes. 
MR. PAGLIUCA: I understand that to mean we should 
confer about all of the scheduling issues moving forward. 
THE COURT: Which you think are relevant. 
MR. PAGLIUCA: Including up to the trial date in this 
case? 
THE COURT: Whatever you think -- if you have a 
position that you think is now established that we are not able 
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25 to try the case in October, that's fine. 
MR. PAGLIUCA: OK. Thank you, your Honor. 
THE COURT: Whatever. 
MR. PAGLIUCA: I just want to make sure I am 
understanding the Court's order. 
THE COURT: Yes, OK. 
Churcher. Yes. 
MR. FEDER: Eric Felder, from Davis Wright Tremaine, 
for the movant. 
THE COURT: Sure. Of course. 
MR. FEDER: Good afternoon. My name is Eric Feder 
from Davis Wright Tremaine, for the movant, Sharon Churcher. 
My client, Sharon Churcher, is a journalist. She is 
currently employed by American Media, Inc., where she is a 
reporter for Radar Online and the National Inquirer. And prior 
to that she worked at the British newspaper, The Mail on 
Sunday. She's also worked as a freelance reporter. And she 
has been subpoenaed as a third party here to give testimony and 
to provide documents in this case. We move to quash the 
subpoena. 
As Ms. Churcher states in her affidavit in support of 
the motion, her entire involvement with this case, with the 
plaintiff, with the defendant, all of the facts underlying the 
case was as a reporter seeking to report and publish news 
stories. All the documents and the information described in 
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25 the subpoena and the document requests, which are quite broad, 
by the way, and which we have to assume provide the contours of 
the information they are seeking in deposition, were created or 
obtained by Ms. Churcher in the course of her news-gathering 
activities, and much of the information sought was communicated 
in confidence, as well. So under the New York State Shield 
Law, which is the appropriate law and which defendants 
acknowledge is the appropriate law, not the slightly less 
protective Federal Reporters' privilege, the defendant has a 
heavy burden to meet to even obtain nonconfidential 
information, and confidential information is absolutely 
privileged. 
We just received an opposition to our motion which was 
filed last night after close of business and we've been 
reviewing it, but much of the substance of it is redacted out 
pursuant, presumably, to the protective order. We had 
previously offered defense counsel to sign the acknowledgment 
of the protective order, which does provide for disclosure to 
witnesses and witnesses' counsel. They didn't take us up on it 
before. Obviously, the offer still stands. 
But what we can say based on what we've seen is that 
the defendant claims that Ms. Churcher, who they fully 
acknowledge reported stories about this case -- not this 
litigation but the underlying case and who first met the 
plaintiff when she traveled to Australia to interview her in 
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25 2011, that she at some point along the way transformed from a 
reporter reporting news into a friend or a business adviser. 
It's not clear again because of the redactions when this 
transformation presumably took place. But the reality is that 
that is simply an incorrect characterization of the 
relationship. 
Since 2011, and continuing up, frankly, through the 
present day, Ms. Churcher has continued to cover this story as 
a reporter, has published stories, including just I think two 
months ago, often using or her so-called agents as 
sources, of course most prominently in early 2015, which is 
what underlies this particular litigation. 
By its terms, the Shield Law applies to any 
information obtained or communications made, quote, in the 
course of gathering or obtaining news for publication. Now, of 
course, a reporter's source relationship is complicated. Not 
every single interaction or every single communication is going 
to be an interview with questions and answers that then get 
published verbatim. So to the extent that there are particular 
emails where Sharon provided advice to that doesn't 
transform the overall relationship from reporter and source to 
adviser and advisee or friend. 
Reporters communicate with sources in a variety of 
ways. A police beat reporter may take a sergeant out for 
drinks and talk about life in general with no intention of 
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25 publishing details but with the intention of maintaining that 
close source relationship so that when the sergeant comes into 
possession of information, he's right there as the first 
recipient of that information. 
As this Court stated in the Schoolcraft  case, that the 
reporter's privilege seeks to prevent the unnecessary enmeshing 
of the press in litigation that arises from events they cover. 
And that's exactly what this is. 
The Second Circuit interprets the qualified privilege 
very broadly to apply not only to individual bits of 
information gathered from sources but also to unpublished 
details of the news gathering process. That's from the Baker
.7. Goldman Sachs  case, 669 F.3d 105, from 2012. 
But either way, what they're seeking here, as 
described in their opposition, is quintessential news gathering 
Shield Law material. They list it at a couple of different 
points in their brief. They are asking for Sharon Churcher's 
interview notes, recordings, memos, and other documentation 
that are clearly, and concededly by the defendant, from the 
news gathering process. 
In order to overcome this Shield Law for even the 
nonconfidential information, they have to make a clear and 
specific showing that the information is highly material and 
relevant, that it's critical or necessary to the maintenance of 
the claim or defense, and that it is not obtainable from any 
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alternate sources. So as an initial point, it is quite clear 
that they haven't exhausted all other sources up to and 
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25 including the proceedings here today, where 
to seek material from the plaintiff's email 
your Honor just granted an order that would they are continuing 
accounts, which 
facilitate that, 
and also the pending motion to reopen plaintiff's deposition. 
So clearly they haven't exhausted plaintiff as a source. 
They are also asking for Ms. Churcher's communications 
with the plaintiff's agents or attorneys or communications with 
law enforcement about 
effort to obtain that 
attorneys or from law the plaintiff, but we're not aware of any 
information from those agents and 
enforcement. Obviously, law enforcement 
may have their own objections to a subpoena. And while the 
defendants may not like what the FBI would say here, but there 
are certainly alternative sources that they are required under 
the Shield Law to turn to before seeking this from a reporter. 
In addition, the information -- again, we haven't seen 
precisely what it is because it is blacked out of their 
opposition but to the extent we understand it -- does not meet 
the critical or necessary prong, which is, under the Second 
Circuit law and under New York law, quite high. As the Second 
Circuit articulated in J<rase v. Graco,  79 F.3d 346, the 
information can be compelled, or disclosure can be compelled 
when the claim or defense, quote, virtually rises or falls with 
the admission or exclusion of the proffered evidence. And they 
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25 just -- they have not made that showing here. 
They talk about the fact that they need this 
information because the credibility of the plaintiff is key, 
but the credibility of a plaintiff is key in many kinds of 
cases and certainly very often in libel case, where truth or 
falsity is sort 
obviously not a 
the plaintiff's of the ultimate issue being tried, and there is 
wholesale exception for libel or any case where 
credibility is central to the Shield Law. 
They also focus heavily on the idea that the story 
changed over time from what was published in 2011 and what was 
published in 2015 and after and, in particular, the question of 
whether had sex with Prince Andrew or not. In 2011, 
the article stated that there was not evidence that that 
happened. In 2015, after court papers stated that it had 
happened, they then reported that it had. But I would submit 
that's less an issue of the story changing than what changed 
was what the newspapers were comfortable publishing. 
There is actually a Vanity Fair article about this 
that was published later in 2011 that talks about how -- it 
talks about Prince Andrew -- that's what the article is 
about -- and it talks about the strictness of British libel 
laws that likely are what contributed to newspapers sort of 
hedging on that point. 
This also is not a case where the journalist was an 
eyewitness to events in her capacity as a citizen. She wasn't 
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there when whatever happened with Ms. Maxwell and 
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25 took place, witnessing it as citizen Sharon Churcher. All of 
her knowledge about this comes from reporting as a reporter. 
And, finally, because the documents all fall within 
the Shield Law, a reporter should not be burdened with going 
and sitting for a deposition where her counsel basically 
objects to every question as privileged under the Shield Law. 
And both the New York Court of Appeals and the Second Circuit 
have emphasized that. The New York Court of Appeals said, in 
Holmes v. Winter,  which we cite in our brief, where the entire 
focus of a reporter's testimony would be on privileged topics, 
quote, No legitimate purpose would be served by requiring a 
witness to go through the formality of appearing to testify 
only to refuse to answer questions concerning the information 
sought. 
And the Second Circuit, in Gonzalez,  talked about the 
dangers that if parties to a lawsuit were free to subpoena the 
press at will, it would become standard operating procedure, 
and the resulting wholesale exposure of press files to 
litigants' scrutiny would burden the press with heavy costs of 
subpoena compliance and could otherwise impair its ability to 
perform its duties. 
Finally, even setting aside the Shield Law, the scope 
of the subpoena is very broad and overly burdensome even just 
as a third party. These communications go back at least five 
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years, if not more. Ms. Churcher was employed at different 
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25 newspapers and is a freelancer, so we are talking about 
multiple email accounts. So even just gathering this broad 
scope of communications which aren't limited by time or 
specific subject matter would be quite burdensome, but, again, 
because the Shield Law applies, a fortiori, as a journalist, 
she should not be put to that burden. 
THE COURT: Thank you. 
MR. PAGLIUCA: Your Honor, I start with -- I would 
like to read to the Court an example of Ms. Churcher's 
involvement in this case. I have this as an audio file and if 
I was allowed to bring my cell phone in, I would play it, but I 
wrote it down to read it to the Court. 
MS. McCAWLEY: Excuse me, your Honor. I just want to 
make sure that we are not -- some documents have been labeled 
confidential, which is why there are redactions and I believe 
there are other individuals present in the courtroom --
THE COURT: Yes. Find out what it is. 
MS. McCAWLEY: Thank you. 
THE COURT: No. Confer with counsel. 
MR. PAGLIUCA: This is not a document that has been 
produced by the plaintiffs, and it has never been labeled as 
confidential in connection with this case. 
MS. McCAWLEY: Sorry. I was concerned about that. 
MR. PAGLIUCA: So, this is a voice message that 
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Ms. Churcher left for Paul Cassell, who is a lawyer in this 
case who entered an appearance in this case, in February of 
2015. 
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25 On February 5, 2015, your Honor, it starts out: Paul, 
it's Sharon. I wanted to discuss and with you on a deep 
background basis something that's in my file. I, as you know, 
feel almost like a friend of I think that the FBI 
affidavit was pretty close to perjury. Give me a call when you 
get a chance. On a deep background basis, if it's not going to 
be a conflict for you, it's something that I wanted to get your 
advice on. Take care. Bye-bye. 
This voice message is troubling on a number of levels, 
your Honor, in connection with this case. First, it has never 
been provided to us, and there is a lawyer who has entered an 
appearance in this case. We have asked for this kind of 
discovery from the plaintiff and it has never been provided, 
and it's germane to the issues before the Court. But what it 
reveals is that this is not Ms. Churcher's first interaction 
with Mr. Cassell, lawyer for the plaintiff. They are on a 
first -name basis. She is feeling free to call him and leave 
messages for him. 
And what she wants to discuss is apparently an 
affidavit prepared by the FBI that's been provided to 
Ms. Churcher by someone; I don't know whom, your Honor, but I'm 
going to presume it was provided to Ms. Churcher by the 
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25 plaintiff. That's troubling as well because we went through 
litigation in this case about our access to alleged 
public -interest privileged documents that were not turned over 
to us but were submitted in camera to the Court. But to the 
extent that that's part of those documents and Ms. Churcher has 
it, that's a problem for the discovery process in this case. 
And it's a problem for Ms. Churcher, your Honor, 
because it's clear, as is attached to our papers, that 
Ms. Churcher's role in this entire ordeal was not simply a 
journalist. Ms. Churcher is a self-described friend. She is a 
self-described adviser. She's a self-described confidante. 
She is a self-described advocate. In many instances throughout 
this ordeal, Ms. Churcher was acting as a source of information 
to Mr. Edwards, who is another lawyer who has entered an 
appearance in this case, and to law enforcement. 
The Shield Law only applies when journalists are asked 
to disclose information received in the course of gathering or 
obtaining news for publication. And Ms. Churcher's activities 
in connection with this case are far outside of those bounds. 
To be clear, we don't want that information from Ms. Churcher. 
So whatever information Ms. Churcher has that was indeed 
obtained in her job in the course of gathering or obtaining 
news for publication, we haven't subpoenaed that information. 
But I suggest, your Honor, that the blanket notion 
that Ms. Churcher can't sit for a deposition in this case is 
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25 simply wrong, and these issues need to be resolved on a 
question -and-answer basis by Ms. Churcher, because her role in 
connection with this case far exceeded any role as a 
journalist. 
Indeed, your Honor, Ms. Churcher is a fact witness in 
this case. The Shield Law relied on is only applicable when 
the journalist is asked to disclose information, again, 
received in the course of gathering or obtaining news for 
publication. And much of the information that we are asking 
if, indeed, it is not all -- from Ms. Churcher has nothing to 
do with information she gathered or collected in the course of 
gathering news for publication. 
We have Ms. Churcher meeting with the plaintiff in 
early 2011 and then conducting a week-long series of interviews 
leading to the publications in March of 2011. We then go 
through another five years here where the story changes, and it 
is reasonable, I believe, to believe that the story is changing 
not because of the truth of the story but because of 
information that's being given to the plaintiff and she is then 
changing her story to make it more salacious and more sellable 
to various people through the world. 
There is a series of exchanges between the plaintiff 
and Ms. Churcher that we have in email communications that have 
been provided to the Court that demonstrate this course of 
conduct over time. We also have a series of communications 
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25 between the plaintiff and law enforcement and the plaintiff's 
lawyers that are not news-gathering activities. These are 
wholly outside of the process of gathering news. And they are 
sharing information back and forth, and Ms. Churcher is 
providing information to Mr. Edwards, counsel in this case. 
Ms. Churcher is advising the plaintiff on how to deal with her 
own lawyer in connection with maximizing her return on 
publishing details that appear to be provided to the plaintiff 
by Ms. Churcher. All of this is outside the bounds of any 
Shield Law or any privilege. 
I think the Court knows I'm sure the Court is 
exhausted with all of the pleadings that have been filed in 
this case related to discovery. I believe we have exhausted 
all avenues available to us to obtain this information. There 
is really no place else to go. And so there is -- I think it 
is not well founded, your Honor, that there is some notion that 
we have not done everything that we can to get this information 
from the plaintiff, Microsoft, other places before turning to a 
subpoena to Ms. Churcher. 
Ms. Churcher is likely the only source of this highly 
relevant information, which is this 24-page fabricated diary 
and the testimony around that, communications with law 
enforcement and the FBI that have no legitimate investigative 
reporter purpose. 
So, for those reasons, Judge, I believe the Court 
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25 should deny the motion to quash, we should be allowed to 
proceed forward with the deposition of Ms. Churcher. If there 
are particularized objections to the questions because counsel 
believe that those invade some privilege, they should be raised 
at that time, and we go forward on a question -by-question basis 
because most of this information will not be subject to any 
privilege. 
Thank you. 
MR. FEDER: May I be heard briefly? 
THE COURT: Mm-hmm. 
MR. FEDER: Thank you. Just very briefly. 
First of all, the voicemail that my colleague read is 
totally consistent with news gathering. She mentions that it's 
on deep background, and in trying to cultivate the source she 
describes herself as almost a friend. Again, I don't think 
that type of less formal communication is indicative of a 
transformation from a journalist into something else. 
But more problematically, we haven't heard that 
voicemail. We haven't seen any of the emails they are talking 
about because they are redacted; the exhibits containing them 
were filed under seal. So we don't know exactly which pieces 
of information they are trying to seek and which pieces of 
information they are claiming are not subject to the privilege. 
I think we can all agree that Ms. Churcher is in fact 
a journalist, that she did in fact publish stories from 
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actually going back to 2007 that wasn't named, but 
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25 from 2007 and certainly 2011 onward, publishing stories about 
these matters. So, clearly the Shield Law is floating around 
here at a minimum somewhere. 
And they have to make a clear and specific showing for 
each piece of information that they claim either the Shield Law 
doesn't apply because she wasn't acting in her capacity as a 
journalist or that the Shield Law is overcome because it's 
critical or necessary and they've exhausted alternative 
sources. And the Shield Law itself provides that the Court 
shall order disclosure only of such portions of the news sought 
as to which the above -described showing has been made and shall 
support such order with clear and specific findings made after 
a hearing. 
So we can't go forward and just deny the motion to 
quash entirely and just go to a deposition and start answering 
questions when the Shield Law at a minimum applies to, we would 
submit, all of it but at a minimum a substantial portion of the 
information. We need to see what they're specifically talking 
about here. 
THE COURT: Thank you very much. I will reserve 
decision. 
The motion to quash the Epstein --
MR. POE: May I approach the podium, your Honor? 
THE COURT: Yes. Of course. 
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25 MR. POE: Good afternoon, your Honor. Gregory Poe on 
behalf of non-party Jeffrey Epstein. With me, your Honor, is 
my colleague Rachel Li Wai Suen. 
THE COURT: Yes. 
MR. POE: Yes, your Honor. Thank you. 
We've attempted to be thorough in our briefing so I 
won't belabor the issues. I think the key issue is whether in 
fact an undue burden would exist if Mr. Epstein were subjected 
at this point to a deposition. The plaintiff concedes, as the 
law requires, that evidence must be relevant and admissible. 
And here the examples the plaintiff's counsel has offered with 
respect to a 2010 deposition in a different proceeding where 
Mr. Epstein apparently answered some questions doesn't add 
anything that the public record already doesn't reveal. So, in 
our view, that would not justify a deposition, which leaves 
really the Fifth Amendment implications that have been 
represented will be made, and that raises the LiButti  issue. 
And under LiButti,  your Honor, really the permeating 
factor is control. And the typical case -- really, most of the 
cases, to the extent courts have addressed this issue, are 
employee invocations where the corporation for which the 
employee works is the party, and there the invocation can be 
imputed because it is controlled. There is no control here, 
and the factors that exist don't justify the deposition under 
the LiButti  analysis. And I would point the Court, as I'm sure 
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the Court has reviewed, to docket 228 -- that's the defendant's 
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25 pleading -- at pages 16 to 18, which lays out both in redacted 
form, which I have not reviewed, and unredacted form, various 
bases for why LiButti  has not been met here by the plaintiff. 
But the alternative argument the plaintiff makes, 
which is this is not ripe for decision, while we certainly 
concede that it would not be something that is the usual 
practice in a typical case, this is not a typical case, we 
would respectfully submit. And we would ask the Court consider 
as an alternative holding in abeyance any deposition of 
Mr. Epstein until the record that the plaintiff refers to has 
been developed. That would not result in prejudice to either 
party, and it would not subject Mr. Epstein to a burden of a 
deposition or the cost or inconvenience, which, of course, need 
to be considered with respect to a third party under Rule 45, 
when, in fact, if we are correct that no litigation purpose 
would be served, it would by definition, in our view, be an 
unnecessary cost and inconvenience and, therefore, an undue 
burden. 
Finally, your Honor, if the Court -- and, ultimately, 
if Mr. Epstein is not granted relief with respect to this 
motion, we would ask in the alternative that the Court prohibit 
videography for the reasons that we have outlined in our 
briefs. The plaintiff's opposition states that Mr. Epstein is 
asking for preferential treatment. We make legal arguments, 
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25 your Honor. Whether the Court agrees or disagrees with our 
legal arguments, Mr. Epstein is not asking to be treated better 
or worse than anybody else under the law. 
So with that, your Honor, we -- if the Court has any 
questions, I am prepared to answer them. 
THE COURT: Thank you. 
MR. POE: Thank you. 
MS. McCAWLEY: Your Honor, may I be heard on the 
motion to quash, please? 
So with respect to Mr. Epstein, obviously the Court 
has heard from us previously. He is at the center of this 
conspiracy, we allege, with Ms. Maxwell, the defendant. It 
would be highly prejudicial to the plaintiff here to not be 
able to take his deposition. 
To accommodate his concerns, even though he was 
sighted just even days ago by his New York mansion, we have 
agreed to fly down to the U.S. Virgin Islands to handle that 
deposition. 
With respect to his concerns over videography, he said 
he was concerned that that would be leaked to the media, we 
have a confidentiality order in place in this case and we will 
gladly mark that as confidential so that is not a concern. 
It's very important that we are entitled to ask him 
those questions. I know his counsel has stated that he intends 
to take the Fifth. As the Court well knows, there are many 
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25 questions for which you have to have a basis to take the Fifth, 
so it can't be just a carte blanche taking of the Fifth. So 
there will be questions that he can answer during that 
deposition. 
In addition, we're entitled to see his demeanor during 
that, to have the jury see his demeanor on video if this goes 
to trial. So it's critical that we are entitled to take that 
deposition of Mr. Epstein, who is the co-conspirator here. 
With respect to the J,iRiztti  case, your Honor, that 
case addresses, as the Court may well know -- it is a Second 
Circuit case -- it addresses the standard by which a court can 
allow a nonparty's invocation of the Fifth Amendment to have an 
adverse inference against a party in a litigation. We contend 
that we meet all of the factors of LiButti,  but at this point 
that would not be the time for the Court to make that decision. 
Obviously, the deposition needs to take place. We need to have 
a record of what he is taking the Fifth on, and then we can 
make those arguments presumably in a motion in limine for why 
we believe that that adverse inference should apply. 
So, your Honor, I submit to you that this deposition 
is critical to us. We've done our part in trying to 
accommodate this witness, and we believe that the deposition 
should move forward and the motion to quash should be denied. 
Thank you. 
MR. PAGLIUCA: Your Honor, may I make some comments on 
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25 this motion as well? 
THE COURT: Yes. 
MR. PAGLIUCA: Thank you. 
Your Honor, first, I think what I'd like to say to the 
Court is that, indeed, I wish Mr. Epstein's deposition could go 
forward. I have every reason to expect that should Mr. Epstein 
testify and testify truthfully, his testimony would be of 
enormous support and corroboration of Ms. Maxwell's version of 
events in this case. 
It's important to note, your Honor, that Ms. Maxwell 
was not the subject of this investigation that led to 
Mr. Epstein's being charged and pleading guilty. We just 
finished the deposition of Detective Recarey, who was the lead 
deposition -- the lead detective in the case, and he agreed 
that throughout this investigation he never spoke to 
Ms. Maxwell. No one identified Ms. Maxwell as being involved 
in any of the alleged crimes. He did not seek any indictment 
or prosecution against Ms. Maxwell. And his only investigation 
relative to Ms. Maxwell was to simply look her up on the 
Internet. 
There is no surveillance footage of Ms. Maxwell. She 
is not named in any of the affidavits that are filed with the 
court. So, in short, Ms. Maxwell was not implicated in any of 
the conduct that Mr. Epstein was alleged to have committed. 
It's important background, your Honor, for the next 
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25 point here, because the plaintiff has not raised what I think 
is a very important issue here with regard to the Fifth 
Amendment, and that is does Mr. Epstein indeed have the ability 
to assert a Fifth Amendment privilege now in the context of 
this litigation. And there are a number of factors that are 
considered, the first being, and I think it is important to 
recognize, Mr. Epstein was granted immunity by the United 
States Attorney in the District of Florida for the conduct that 
I believe he is going to be questioned about. And I don't 
believe that it is appropriate for a witness to assert a Fifth 
Amendment privilege after they have been granted immunity by 
the prosecuting authority under 18 United States Code 6001. 
So, I don't think that there has been any exploration of 
whether Mr. Epstein can indeed invoke his Fifth Amendment 
privilege. 
He also pled guilty to state charges which likely 
would act as a jeopardy bar and prohibit Mr. Epstein from 
asserting his Fifth Amendment privilege in the state system to 
the extent that the immunity from the federal government 
doesn't cover him, which I submit that it would. 
There is also the statute of limitations, your Honor, 
which seems to me has long expired with regard to any of the 
allegations in this case. 
Now, why do I raise that, Judge? They don't really 
want Mr. Epstein to testify. That's the point here. They want 
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that they can then try to back-door this against Ms. Maxwell. 
And, in effect, they are creating their own little dichotomy 
here, which is he's taking the Fifth, we want him to take the 
Fifth, because then we get to just do a list of questions about 
everything that we want to have an adverse inference about as 
it relates to Ms. Maxwell, not as to Mr. Epstein. That is the 
problem, because they haven't done what they should do to get 
to that point in the first place. I think that is a real issue 
and a real problem for this motion before the Court now. 
This is simply an attempt to manufacture -- and I use 
that word deliberately, your Honor -- manufacture self-serving 
evidence that they can then try to present to a jury through 
this derivative adverse inference. 
Final comment: I have never had a court allow a 
witness to come into court and assert a Fifth Amendment 
privilege, whether that be in a criminal case or a civil case. 
I've never had a court allow a jury to be shown someone's 
deposition while they are asserting a Fifth Amendment 
privilege. I don't understand the point of that. And it seems 
to me there is no point in allowing a videotaped deposition of 
somebody who is going to sit there and say to every question 
"On the advice of my counsel, I assert my Fifth Amendment 
privilege." There is nothing to be served by the added expense 
of that process. 
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Ms. Maxwell's fight, but it becom



=== IMAGE DESCRIPTIONS ===
[Image 1] The image shows a page of a document, which appears to be a court transcript or a legal document. The text is written in English and includes various paragraphs with numbered lines. The document is titled "Southern District of New York" and mentions a case number. There are names, dates, and other details that are typical of legal documents, such as the names of attorneys, the date of the hearing,

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[Image 3] The image is a document scan, specifically a letter. It contains text that discusses legal matters and references a case number. The letter is addressed to a recipient named "Ms. Nowell." The text includes references to legal procedures and mentions the "Second Circuit Court of Appeals." The document is dated and signed by an individual whose name is redacted. The visible text is formal and appear

[Image 4] The image shows a document that appears to be a court order or a legal document. It is a page from a court case, with visible text that includes the title "ORDER" and a reference to a case number. The text is written in English and includes paragraphs with numbered lines, which is typical for legal documents. The document is dated and signed by a court official, indicating it is an official legal 

[Image 5] The image shows a document that appears to be a court order or a legal document. It is a typed page with numbered paragraphs and a header that includes the name of a court or legal entity. The text discusses legal matters, including references to a "Plaintiff," "Defendant," and "Court." There are also mentions of "Plaintiff's Motion for Summary Judgment" and "Defendant's Response to Plaintiff's Mo

[Image 6] The image shows a document with text, which appears to be a legal or official letter. The document is titled "DECLARATION" and is addressed to "THE HONORABLE JUDGE OF THE SUPREME COURT OF THE STATE OF NEW YORK." The text is written in a formal, legal style, and it mentions a case number and a plaintiff's name. The document is signed by a person whose name is redacted. The text is too small to read