1 H3VOGIU1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 Civ. 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. Oral Argument 8 ------------------------------x New York, N.Y. 9 March 31, 2017 10:10 a.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. 16 MEREDITH L. SCHULTZ, ESQ. 17 S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH For Plaintiff 18 BY: PAUL G. CASSELL, ESQ. 19 HADDON, MORGAN AND FOREMAN, P.C. Attorneys for Defendant 20 BY: JEFFREY S. PAGLIUCA, ESQ. LAURA A. MENNINGER, ESQ. 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 H3VOGIU1 1 (Case called) 2 THE COURT: Like all of you, you woke up in the middle 3 of the night thinking about this case. I would like to see if 4 I can clarify my understanding. 5 In the motion to dismiss, I concluded, I think, that 6 what was at issue was the truth or falsity of the plaintiff's 7 allegations concerning sexual abuse and the activities of the 8 defendant. I think that's my sense of my own opinion. 9 Yesterday, we were discussing the redactions of the 10 intervention motion. I got the sense, perhaps wrongly, that 11 the plaintiff's position was that the defamation was the truth 12 or falsity of the statements relating to the defendant. 13 Period. Am I correct? 14 MS. McCAWLEY: You are, your Honor, in that the 15 statements about the defendant -- to be clear, because one of 16 the allegations is, of course, she was a madam and a 17 coconspirator with Epstein -- do involve Epstein. 18 THE COURT: Listen. Leave the pejorative out. Okay? 19 Please. 20 MS. McCAWLEY: Sure. 21 THE COURT: Simply because I'm trying to come to 22 grips, obviously, with the scope of this case, which is a real 23 issue, obviously. So is it you are restricting your claim to 24 the truth and falsity of the statements about Maxwell? 25 MS. McCAWLEY: Yes, that is the case, your Honor. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 H3VOGIU1 1 statements about Maxwell and her activities, without using any 2 description of what that is, but yes, as we've described in our 3 pleadings. 4 THE COURT: And whether or not the plaintiff was 5 subject to sexual abuse as a minor is not part of it. I mean, 6 yes, of course, whatever she was when whatever, but that issue 7 we don't have to deal with. 8 MS. McCAWLEY: I'm sorry, your Honor. I think I lost 9 you there. I apologize. 10 So the allegations in the complaint are that when our 11 client came forward and said she was abused by the defendant 12 and Epstein, the defendant came out and said she was lying 13 about that abuse, and some of that abuse did occur when she was 14 a minor. 15 THE COURT: Yes. Well, okay. But there are other 16 things that she sets forth in the Churcher articles, in the 17 motion to intervene, there are a whole series of other things 18 that are -- I mean, there are things that have been said, and 19 my reading of the defendant's statement is, I read it to say 20 all those things are false. But those are not at issue, as far 21 as you're concerned. 22 MS. McCAWLEY: Yes, your Honor. In fact, the omnibus 23 motion we filed today -- and I think, if I'm following you 24 correctly, this may help -- we were trying to streamline the 25 case because there's other individuals, obviously, that my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 H3VOGIU1 1 client made statements about. So we were trying to streamline 2 the case to the statements about Maxwell and her involvement 3 with Epstein. 4 So in the omnibus motion you'll see, for example, that 5 they have claimed she's made statements about other 6 individuals, and we say that that's not what's at issue, what's 7 at issue are the statements -- 8 THE COURT: That may be an issue of credibility. That 9 may be an issue of credibility. I'm talking about what we're 10 going to go to the jury on. 11 MS. McCAWLEY: Yes. And that is the statements that 12 Maxwell made about my client. 13 THE COURT: And that's it. 14 MS. McCAWLEY: Yes, your Honor. 15 THE COURT: Let me ask the defense. Does that clarify 16 anything for you? 17 MS. MENNINGER: Could I have one second, your Honor? 18 THE COURT: Sure. Of course. 19 MS. MENNINGER: Your Honor, I think it's slightly more 20 nuanced. Plaintiff has claimed our client's statement is 21 false. Our client's statement is not just limited to the 22 little snippets that they included in their complaint, it's the 23 entire statement. That entire statement talks about Virginia 24 Giuffre's allegations against Ms. Maxwell have been proven 25 untrue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 H3VOGIU1 1 THE COURT: Yes. But the statement wasn't limited to 2 those allegations. 3 MS. MENNINGER: That's exactly right, your Honor, 4 because right in the middle of that particular statement, the 5 one that's at issue in this case, our client said, "Now her 6 story has grown and evolved, and she's included allegations 7 about world leaders and Alan Dershowitz, which he denies." We 8 can't just take that part out of her statement, that's what 9 Ms. Maxwell put in her statement. 10 And your Honor, what we will ultimately be hearing 11 from Ms. Maxwell about what she believed were the obvious lies 12 that she was referring to and the allegations that she was 13 referring to when she issued that statement. 14 THE COURT: Now, one other question, and then we'll 15 get to the business of the day. I apologize for this 16 diversion. 17 Let me ask you both. Suppose the plaintiff proves 18 that she was sexually abused and that her story is 19 substantially true but she does not prove the role that Maxwell 20 had. Does she win? 21 MS. MENNINGER: No, she loses, your Honor. 22 THE COURT: I think she wins. 23 MS. MENNINGER: Your Honor, the very first -- 24 THE COURT: Other than what you've just said. 25 MS. MENNINGER: Your Honor, our client can only be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 H3VOGIU1 1 alleged to have defamed someone based on facts, not opinions. 2 THE COURT: Agreed. Agreed. 3 MS. MENNINGER: And so she can -- the Davis v. Boeheim 4 case is a perfect example of that, your Honor. She can only 5 speak to facts about which she has personal knowledge. If 6 plaintiff goes and proves that plaintiff went and had sex with 7 Jeffrey Epstein at some point in time and our client wasn't 8 there, our client's statement about that would be opinion, it 9 would not be a fact based on personal knowledge. 10 THE COURT: I mean, okay. But that's an issue of 11 knowledge. That's a different -- 12 MS. MENNINGER: You just said -- 13 THE COURT: That's a different -- 14 MS. MENNINGER: The hypothetical was if our client 15 wasn't involved. If our client wasn't involved then it would 16 be an opinion. 17 THE COURT: Thanks very much. I'm glad for this 18 clarity, which frankly, at the moment, alludes me. 19 Okay, let's move on. Yes, I'll hear from the movant. 20 MS. McCAWLEY: Thank you, your Honor. 21 The first order of business we'd like to address, if 22 it's okay with the Court, is our filing, which was 691, which 23 is our omnibus motion in limine. And if it's okay with the 24 Court, we've split that up a bit. I'm going to start with 25 respect to that motion in limine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 H3VOGIU1 1 What we attempted to do with our motion in limine was 2 streamline the trial. And your Honor, based on the comments 3 you've just made, if you want to give me guidance, I'll tell 4 you what I'm thinking with respect to this and what we put 5 forth in our filing. 6 But there are statements that are attributed to my 7 client in other articles and things. For example, there are 8 statements about Bill Clinton being on the island, and the 9 defense wants to bring in those statements to show that -- they 10 believe they can show evidence that he wasn't on the island, so 11 therefore, my client is a liar or is lying about that. 12 Now, your Honor will remember, back in June we sought 13 to depose him because we were concerned about that fact, that 14 they were going to raise it, and we wanted to have him under 15 oath -- 16 THE COURT: Let's back up a little bit. 17 MS. McCAWLEY: Sure. 18 THE COURT: What and where was the statement made? 19 MS. McCAWLEY: The statement was made in a March 5th 20 article. So not the two articles we showed you yesterday -- 21 THE COURT: The Churcher article. 22 MS. McCAWLEY: Yes. But it was another article that 23 came out in March of 2011. 24 And the statement was with respect to my client saying 25 she saw him on Epstein's island. She was introduced to him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 H3VOGIU1 1 there. Although no allegations of trafficking or anything of 2 that nature, just that she was there. And they are seeking to 3 introduce evidence through Louie Freeh, who we'll discuss in a 4 moment, they've proposed, and he's clearly an expert that was 5 undisclosed, and through a FOIA record, and through the 6 articles to allege that he wasn't on the island. 7 And so in your Honor's order in 264-1, which is one of 8 the sealed orders, you did not allow us to depose him because 9 you said it was irrelevant. 10 So we're now in a position where at trial they want to 11 put forth that information against my client, and I don't have 12 an under-oath statement from that individual saying whether or 13 not he actually was. 14 Now, what we know is he flew with Jeffrey Epstein at 15 the same time 19 different times internationally and 16 nationally, but we don't have him with respect to this 17 particular allegation under oath. So we would say it would be 18 highly prejudicial for them to be able introduce evidence 19 saying that he wasn't there or that they have some proof or 20 some expert saying he wasn't there when, in fact, we weren't 21 able to ask him directly, the person who is at issue, under 22 oath, whether or not he did, in fact, go there. 23 So one of the streamlining of this case is that 24 allegation has nothing to do with sexual abuse, it doesn't have 25 to do with the statements -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 H3VOGIU1 1 THE COURT: It has to do with credibility. 2 MS. McCAWLEY: Well, your Honor, I would say, if 3 you're inclined to think that that has -- 4 THE COURT: Well, look. I'm no genius. I don't claim 5 any -- but you know, that is precisely what the defense is 6 going to say. 7 MS. McCAWLEY: Right. I understand, your Honor. And 8 that's why we sought to depose him because it's inherently 9 unfair -- 10 THE COURT: Okay. So you would say I made a mistake. 11 MS. McCAWLEY: No, your Honor. I think it should be 12 excluded, and in my view, I think it's not relevant to the 13 issue at trial here. But they are, of course, going to argue 14 that it is and that they want to bring that in. In fact, like 15 I said, they've got lined up Mr. -- 16 THE COURT: Well, on the question of credibility, why 17 isn't it relevant? 18 MS. McCAWLEY: Because the statement -- so this case 19 is about whether or not she was sexually abused and 20 trafficked -- 21 THE COURT: Now, that's where I started out. Is it 22 about that? If that is your position, that's something else. 23 If it's a question about her sexual abuse, in addition to, then 24 that's something else. But you just said it isn't about that, 25 it's just about Maxwell and did she tell the truth about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 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 24 streamline the case, we've said, well, there's none of those 25 people on the witness list, and just statements in an article SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 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 24 relates to the issues with Maxwell. So in other words, he 25 would be able to testify what he says he didn't do, but then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 H3VOGIU1 1 any questions we wanted to ask him about Epstein or Maxwell he 2 says he's got an attorney/client privilege. So we're hand-tied 3 because we can't ask about the issues that we need to ask about 4 with respect to that witness. So in my view, it's highly 5 prejudicial to have him as a witness at trial when, again, our 6 claims are not against him, and we have those issues. 7 Now, you did have -- in your February 2nd order, you 8 also precluded us from asking questions that we contended were 9 non-Fifth Amendment questions of Jeffrey Epstein about 10 Dershowitz, holding that those were not relevant. So we're in 11 a situation where we have another witness that we are not able 12 to elicit all of the information we need to be able to prove 13 the truth or falsity of that, and again, it would be subject to 14 a number of mini trials on that issue of Mr. Dershowitz. 15 So with respect to those three categories -- and it 16 also allows them to use the attorney/client privilege as a 17 sword and a shield in the midst of a trial, which is inherently 18 unfair to my client, as well. 19 So in our view, it's highly prejudicial under 403. 20 Those groupings should not come in. It should not be about, 21 for example, Clinton and whether or not he was on an island, or 22 Mr. Dershowitz or these other world leaders, it should be about 23 the defendant and her statements that my client was lying when 24 she claimed to be abused and trafficked in those statements. 25 THE COURT: Just a second. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 H3VOGIU1 1 MS. McCAWLEY: Sure. 2 THE COURT: What you just said, could you repeat what 3 you just said? 4 MS. McCAWLEY: Yes. So the statements that 5 Ms. Maxwell denied were statements that my client made that 6 defendant and Epstein trafficked her, brought her in, had her 7 participate in the sexual abuse of her and other females, she 8 was in that circumstance, she lived that circumstance for a 9 period of time, and so Maxwell came out and called my client a 10 liar, said she was lying about those statements that she made, 11 and said that, obviously, as you know, to the international 12 press about my client and what her experience was with them. 13 So with respect to that, your Honor, those are the 14 categories that we believe would help streamline the case, and 15 again, that those witnesses would be highly prejudicial. 16 On the issue of the information that they'd like to 17 put in with respect to Mr. Clinton, they have Louie Freeh who 18 they've identified. This is a former FBI director. 19 THE COURT: I know. 20 MS. McCAWLEY: You know, yes. So they've put him in 21 without giving us a Rule 26 expert report. He was never 22 disclosed during the time period. His report or what he's 23 going to say, as we understand it, is that he's reviewed the 24 FOIA response and that there's no evidence in his view that 25 Clinton was on this island, again, even though he flew SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 H3VOGIU1 1 regularly with Mr. Epstein to other places. 2 So again, we didn't get to depose him as an expert in 3 this matter. We didn't know that he was going to be called as 4 an expert. They're saying he's a lay opinion because he's a 5 private investigator, your Honor. The case law says otherwise. 6 He's been certified as an expert in these exact kind of cases. 7 We put those in our brief. So your Honor, he is really a wolf 8 in sheep's clothing. They're trying to put him on as a lay 9 opinion when he's really an expert witness in this case with 10 sufficient and sophisticated knowledge, that the jury will 11 recognize him as someone who has expertise in this area so, 12 your Honor, we believe he should be precluded from testifying. 13 He has no personal knowledge, it's simply his reliance, as we 14 understand it, on the one FOIA response letter. 15 So your Honor, with respect to the FOIA response 16 letter that's at issue that they are going to try to get into 17 evidence, we've put forth in our papers, again, that's a 18 hearsay document. It's highly prejudicial under 403. They say 19 that it meets self-authentication, but unlike the documents 20 that we showed, for example the 302 that have the seal on it, 21 it has none of those qualifications. 22 They cite to two cases, the Zamara case and the Gary 23 case. Both of those involve getting into evidence underlying 24 records that were produced by the government, not a FOIA 25 letter. So what they're trying to produce is a letter that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 H3VOGIU1 1 says we've looked and we can't find these records that you've 2 requested. 3 Now, it doesn't address the fact that the government 4 only typically retains records for a few years when they were 5 requesting records from 15 years ago, so it doesn't have the 6 indicia of trustworthiness to be able to say that this is 7 actually the fact because, of course, as we know, the 8 government regularly has to get rid of records. 9 So to use this letter to say, 'Ah-hah, he was never on 10 the island,' when we never got to examine him under oath and 11 say, 'You traveled with him a bunch. Did you also go to the 12 island? My client says she met you there.' We didn't get to 13 ask those questions, so we're in a situation now where that 14 letter coming in would be highly prejudicial because the jury 15 will wonder, well, what does he have to say about this? And we 16 haven't been in a position to be able to do that. 17 So your Honor, for all those reasons we believe that 18 Mr. Freeh should be excluded, the FOIA letter should not come 19 into evidence, and again, we believe that the issue of 20 Mr. Clinton should not be an issue relevant to this trial. 21 Next, your Honor, they also seek to include 22 statements, hearsay statements and newspaper articles about 23 Prince Andrew, and it's actually not his denial, as I 24 understand it, Buckingham Palace's denial of the allegation of 25 my client. But again, Prince Andrew is not on the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 H3VOGIU1 1 list, we're not able to cross examine him, so what they want to 2 do is introduce triple hearsay of Buckingham Palace saying what 3 Prince Andrews said in a news article without the reporter 4 against my client without our ability to cross examine him on 5 that. 6 So your Honor, they've tried to argue a little bit of 7 a securitous way, I think that it's a verbal act on behalf of 8 Prince Andrew, it doesn't meet that criteria, there's been no 9 statement by -- there's been no action by my client against 10 him, and what's at issue in this case is, again, Maxwell's 11 statements against my client. 12 The case that they cite actually, the Minemyer case, 13 goes against them. It actually talks about how you would have 14 to call the reporter, that that couldn't come into evidence. 15 And so, your Honor, for those reasons, we believe that, again, 16 that's a distraction, it's highly prejudicial to allow a triple 17 hearsay document like that to come in without our ability to be 18 able to cross examine that individual. So for those reasons, 19 your Honor, we believe that that should not come in. 20 They also made an argument that it's somehow an 21 intervening cause or that, you know, it goes to the issue of 22 she should be seeking damages from Prince Andrew, things of 23 that nature. But as we know, because your Honor reviewed the 24 case law with respect to the summary judgment, each individual 25 is responsible for their own defamation, so it doesn't come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 H3VOGIU1 1 into consideration whether she could have sued six people for 2 it, 20 other people for it, this case is about Maxwell and her 3 defamation against my client. 4 So again, your Honor, if you look at Sack on 5 Defamation, it addresses that directly, and we believe that 6 that should not come into evidence. 7 So your Honor, that's the first chunk of the omnibus 8 motion that I was addressing. I'm not sure how you want to 9 take it, if you want to have opposing counsel speak on those 10 issues now and then move to the others, or if you want us to 11 keep moving through it? 12 THE COURT: What's your preference? 13 MS. McCAWLEY: I think keep moving through it would be 14 great. 15 THE COURT: What? 16 MS. McCAWLEY: To keep moving it through it, if that's 17 all right, so we can get through argument and then have them 18 address it? 19 THE COURT: Sure. 20 MS. McCAWLEY: Thank you, your Honor. 21 MS. SCHULTZ: Your Honor, this is Meredith Schultz for 22 the plaintiff. The next article in the omnibus motion is to 23 exclude testimony references to prior sexual assault. This is 24 an issue that I spoke on yesterday related to another motion 25 regarding the same, so I'll keep it brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 H3VOGIU1 1 But prior sexual assault, all of which occurred while 2 Ms. Giuffre was a child, it's irrelevant to this action. It 3 doesn't come in under 401. It doesn't involve defendant. It 4 predates even meeting defendant. And these assaults do not 5 make it more or less probable that defendant defamed 6 Ms. Giuffre, and neither does it tend to prove or disprove that 7 defendant abused her. 8 These are also classic examples of evidence that 9 should be excluded under Rule 412. The Rape Shield Law forbids 10 evidence concerning these unrelated events involving 11 Ms. Giuffre. This rule should be strictly enforced, 12 particularly because these events happened when she was 14 and 13 15 years old. Rule 412(a) bars this evidence if it's offered 14 to prove that she engaged in any type of sexual behavior to 15 prove any type of disposition. 16 It should also be excluded under Rule 403. This is 17 extremely prejudicial, and because it is irrelevant, it would 18 only encourage the jury to view Ms. Giuffre, a married mother 19 in her 30s, as an immoral person for having sexual contact with 20 individuals as a child. 21 This should also be excluded under 608(a), which 22 limits interaction of evidence for specific instances of 23 conduct in order to attack the witness' character for 24 truthfulness. Now, I spoke about this at length yesterday. 25 Defendant tries to offer two particular things to say that, oh, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 H3VOGIU1 1 she wasn't truthful about something, about being sexually 2 assaulted, but the documents themselves describe something 3 that's unequivocally sexual assault under Florida law, 4 something that is unequivocally nonconsensual. So that would 5 honestly be another mini trial and would take us far afield of 6 what facts are relevant to this case. 7 And again, any minor probative value that's past 8 sexual assault that Ms. Giuffre experienced as a child is 9 completely swallowed by the prejudicial effect on the jury. 10 MR. CASSELL: Your Honor, I think I'm the next one up. 11 For purposes of clarity, we're up to point number 7 in our 12 omnibus motion. 13 This one I think is just a very simple and 14 straightforward one. We move to exclude derogatory sexual 15 characterizations. This is a case that your Honor has been 16 framing this morning. It doesn't require use of a term from 17 defense counsel, for example, describing our client as a 18 prostitute or as a slut. We thought we would get agreement 19 when we saw the responsive papers from the defense, but as you 20 know, they objected in it's entirety to this motion, so we're 21 here asking that defense counsel not refer to our client as a 22 prostitute, not refer to her as a slut, and they also advise 23 their witnesses that such language would be inappropriate in a 24 federal trial dealing with a defamation issue. 25 On this particular point about prostitute, it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 H3VOGIU1 1 interesting. Am I conjuring up something that's not going to 2 happen? No, your Honor. The defendant's own expert report 3 described our client as a prostitute. Your Honor has under 4 advisement the expert report from Dr. Esplin, and so I deposed 5 Dr. Esplin, and I said, "Are you sure that's an accurate term 6 in the context of this case? Because we have a child who 7 cannot consent to sexual activities." And he backed off 8 immediately and agreed that that was an inaccurate term for him 9 to use to describe my client, Ms. Giuffre. So even the 10 defense's own expert says the term "prostitute" is 11 inappropriate. 12 Your Honor has authority, of course, under Rule 611 to 13 manage the trial, to avoid undue harassment or embarrassment. 14 Also Rule 403 allows you to restrict things that would be 15 substantially prejudicial with no probative value, which is 16 exactly what we have here. So we would ask you simply to reign 17 in derogatory language, both from witnesses and opposing 18 counsel. 19 MS. SCHULTZ: Your Honor, I'll be addressing the next 20 several points in the omnibus motion, starting with number 8. 21 I think I can narrow this issue a little bit at the outset. 22 Ms. Giuffre concedes here that illegal or 23 nonprescription use of drugs during the years that she was with 24 defendant is admissible. However, any evidence pertaining to 25 any use of drugs, illegal or not, and alcohol from any periods SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 H3VOGIU1 1 before or after Ms. Giuffre was abused by defendant is 2 irrelevant to this action and should be excluded under Rule 3 401. 4 It is also, of course, highly prejudicial and should 5 be excluded under Rule 403. Whether or not Ms. Giuffre ever 6 used drugs while not being abused by defendant does not go to 7 any claim or defenses in this case. 8 Courts in the Southern District of New York routinely 9 exclude evidence of prior drug use under both of these rules, 10 as fully briefed in the papers. Defendant attempts to admit 11 this evidence of prescription drug use related to damages, 12 specifically whether or not the emotional distress Ms. Giuffre 13 suffered is preexisting. 14 THE COURT: And why do you have it in your expert's 15 report? 16 MS. SCHULTZ: Well, our expert is -- I'm assuming 17 you're referring to Dr. Kliman, who is a physician. He's a 18 medical doctor. He took a full -- 19 THE COURT: There's a whole thing about it. Are you 20 going to withdraw the -- 21 MS. SCHULTZ: No, your Honor. We're only claiming 22 damages with respect to the emotional distress suffered from 23 the defamation. And also, taking drugs prescribed for various 24 mental health issues is not the same thing as emotional 25 distress. They're two different issues. So any marginal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 H3VOGIU1 1 probative value is outweighed by the prejudice. Again, this is 2 only seeking damages based on defendant's defamation. 3 I'm going to move on to point number 9. Ms. Giuffre 4 seeks to exclude any alleged criminal history from coming into 5 this case. And the Federal Rules of Evidence bar the 6 introduction of this evidence, full stop. 7 As the Court is aware, the only way criminal history 8 could come into evidence is through Rule 609, but that rule 9 itself bars this evidence because, one, there's no conviction, 10 and two, the alleged crime does not go to truthfulness. 11 Of the two parties, your Honor, Ms. Giuffre is the 12 only one who has not been convicted of a crime here, this is 13 merely an alleged prior bad act which is excluded under Rule 14 404. 15 And this alleged act, which Ms. Giuffre denies, does 16 not go to truthfulness, and that's an important point here. An 17 accusation of a crime with no conviction does not go to 18 truthfulness, especially a crime like this, which specifically 19 is defendant says she stole from a tip jar when she was a 20 teenager. Knowing that this type of evidence is excluded, 21 counsel for defendant has put forth an unsupported argument 22 that Ms. Giuffre left the United States because of allegations 23 that she stole from a tip jar. That is, of course, false. She 24 left the United States to get away from defendant's abuse. 25 And moreover, the documentary evidence in this case, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 H3VOGIU1 1 which has been produced in discovery and submitted to this 2 Court, shows that it was defendant who sent her to Thailand, 3 sending her with handwritten instructions about what to do when 4 she gets there. So if this unsupported argument that defendant 5 left the United States because of some accusation of a tip jar 6 is to be believed, then that makes defendant an accessory after 7 the fact and implicates her in the wrongdoing. 8 So I don't -- basically, there's just -- this argument 9 is also undone by the fact that later, Ms. Giuffre comes back 10 to the United States to live here. She's not fleeing 11 accusations, she was fleeing defendant. If she were worried 12 about criminal liability in the United States, she wouldn't 13 come back to live here. 14 But the overall point is any marginal probative value 15 from these allegations, which I don't think there is any, but 16 it's far vastly outweighed by the prejudice it would cause 17 Ms. Giuffre and should be excluded under all those rules. 18 Moving now to point 10. Ms. Giuffre has requested 19 that the Court exclude any evidence regarding special 20 schooling, truancy, and juvenile delinquencies. For this 21 argument, your Honor, I request that I approach the bench and 22 give you a few documents upon which these arguments are based. 23 I have four documents that I'm handing up. 24 I have to get a little bit into the weeds here, so 25 please bear with me. In this case, Ms. Giuffre -- well, school SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 H3VOGIU1 1 records have been part of discovery. They show a history of 2 rampant truancy and failed courses. This constitutes prior bad 3 acts which are excluded under Rule 404, particularly since 4 these bad acts do not go to truthfulness, so they're also 5 excluded under Rule 608. 6 They should also be excluded because their prejudice 7 that it would cause Ms. Giuffre greatly outweighs any probative 8 value and should be excluded under 403. 9 There's a huge remoteness issue here, your Honor. 10 These truancies and juvenile delinquencies took place many 11 years ago when she was a minor. There's a lot of case law on 12 this that is in Mr. Giuffre's brief on page 22 to 23. But what 13 you should be aware of, your Honor, is that a close examination 14 of records, looking up what the number codes on these 15 transcripts actually mean, it shows the opposite of the 16 argument that defendant advances in her response brief; that 17 she was in school, and therefore, not abused by her client. 18 To the contrary, the records show that she was not in 19 school over half the time she was supposed to be and did not 20 complete her courses. These transcripts are not 21 self-explanatory. Indeed, looking at the face of them, it 22 seems like she was enrolled and attending school, but much of 23 the information in these records are number codes used by the 24 Palm Beach County School District. These school records could 25 not be placed into evidence for all the reasons above, but if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 H3VOGIU1 1 you are inclined to do them, you could not place them into 2 evidence fairly without testimony regarding what all these 3 codes on the transcripts mean, or at a bare minimum, the 4 introduction of evidence and instruction that makes explicit 5 what all the codes on the transcripts mean. 6 Defendant either failed to do her due diligence on 7 this and looked at what the codes are before advancing this 8 argument, but either way, it's not a good faith argument 9 because, as you can see in the document I handed up, these 10 codes and their meanings were detailed at length in 11 Ms. Giuffre's opposition to the motion for summary judgment, 12 and I would ask the Court to refer to the facts at page 32 of 13 the statement of facts. 14 So what the records actually show is rampant truancy, 15 years of absence from school while defendant was abusing her, 16 which show ample opportunity for abuse, and are, in fact, in 17 accord with the flight records, which have also been produced 18 in this case, which place Ms. Giuffre on 23 flights with 19 defendant aboard Jeffrey Epstein's private plane. 20 So as these records actually show truancy, failed 21 grades, failure to complete courses, these should be excluded 22 under all the rules I cited earlier, or at a bare minimum, 23 instruction to the jury about what the codes mean and detailing 24 how many days of school Ms. Giuffre actually attended, a number 25 that is conspicuously absent from defendant's brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 H3VOGIU1 1 Turning next to plaintiff's motion in limine number 2 11. This is a related issue. We ask that the Court exclude 3 characterizations of Ms. Giuffre's bad behavior during her 4 childhood, including characterizations of her as a bad child or 5 a runaway. Defendant's response to this tries to conflate two 6 separate things; prior bad acts, an assault on her character on 7 one hand, with a reputation for truthfulness of another. 8 Prior bad acts she may have committed as a child, like 9 running away, is inadmissible and a defamation action where the 10 damages relate to her reputation. That she ran away from home 11 or was an ill-behaved child does not go to truthfulness. 12 These events also do not go to her reputation. Her 13 reputation for truthfulness as an adult prior to the defamation 14 is the only reputation that's at issue in this case. 15 Defendant's defamatory statements damaged Ms. Giuffre's 16 reputation when she was in her 30s. This does not open the 17 door into evidence of Ms. Giuffre's generalized character, 18 particularly one from a troubled childhood. Occurrences, such 19 as running away from her home when she was a child, are simply 20 prior bad acts under Rule 404 that should be excluded. They 21 should also be excluded under Rule 405 because this is 22 introduction of evidence to try to show her character. And 23 Rule 608(a) also limits evidence and testimony about a witness' 24 reputation for having a character for truthfulness or 25 untruthfulness, it doesn't come in under that rule. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 H3VOGIU1 1 Her reputation for truthfulness does not go to any bad 2 acts she may have committed 20 years ago. And your Honor, even 3 criminal convictions are generally not admissible 10 years 4 after the fact. So presentation of this type of evidence is 5 simply nothing more than a smear campaign, which is prescribed 6 by multiple Federal Rules of Evidence. 7 And finally, any marginal probative value of these bad 8 acts as a child is vastly outweighed by the undue prejudice it 9 would cause Ms. Giuffre before a jury. 10 Your Honor, now I'm turning to point number 12. We've 11 asked the Court to exclude evidence relating to the tax 12 compliance of Ms. Giuffre's not-for-profit Victims Refuse 13 Silence. Rule 401 is the first rule under which this should be 14 excluded. The alleged tax compliance of her not-for-profit 15 does not go to whether or not defendant defamed Ms. Giuffre and 16 does not go to whether or not defendant abused Ms. Giuffre. 17 It should also be excluded under 403. It is highly 18 prejudicial. It would give the wrong impression to the jury 19 that Ms. Giuffre's organization is not tax compliant, which, in 20 fact, it is a fact that defendant does not acknowledge in her 21 briefing. 22 Proving whether or not Ms. Giuffre's not-for-profit is 23 tax compliant would also be a mini trial and, frankly, a 24 sideshow to this case. 25 Furthermore, all of defendant's conclusions about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 H3VOGIU1 1 Ms. Giuffre's not-for-profit tax compliance are based on an 2 errant report by her purported expert, an expert who should be 3 excluded from testifying because his report lacked methodology 4 and he opined on topics far afield from his expertise. 5 Second, any allegations that her not-for-profit is not 6 tax compliant 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. Giuffre's 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. Giuffre's 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. 24 Second, there is no evidence in this case that any 25 government, either United States or Australia, believes that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 H3VOGIU1 1 she is noncompliant with her taxes. Defendant's purported 2 expert's evaluation of this is wholly flawed, as explained in 3 Ms. Giuffre's motion in limine on the same. 4 Similarly, Ms. Giuffre's taxes are wholly irrelevant 5 to this case. Even actions brought by the government, your 6 Honor, where the cause of action is centered on nontax 7 compliance exclude evidence of prior tax noncompliance when it 8 takes the case too far afield of the issue being tried. 9 Courts also exclude this evidence under 403 if there's 10 no substantial nexus between the alleged tax noncompliance and 11 the matter at hand. Here, defendant fails to show any type of 12 substantial nexus to this defamation claim. None whatsoever. 13 Additionally, resolving Ms. Giuffre's tax compliance, 14 this is a point that's in dispute among the parties, and 15 resolving such an issue would also involve another mini trial 16 where Ms. Giuffre would put on evidence of her tax compliance 17 and, at the end of that mini trial, the jury would have no more 18 information whether or not defendant defamed Ms. Giuffre when 19 she called her a liar about being sexually abused. Trying to 20 make this an issue, this is simply a device for putting the 21 settlement agreement and the amount between Ms. Giuffre and 22 Jeffrey Epstein into evidence. 23 As has been briefed extensively, such a settlement 24 payment is tax exempt under the United States law, but that's 25 all this is, it's a device to try to get an improper admission SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 H3VOGIU1 1 of a settlement amount between Ms. Giuffre and Jeffrey Epstein. 2 Accordingly, this should be completely excluded because any 3 marginal probative value this has on the claims is greatly 4 outweighed by the prejudice to Ms. Giuffre. 5 I am not up for the next one, so I'm going to take a 6 break. Thank you. 7 MR. CASSELL: Again, your Honor, I'm up to number 14 8 now, the issue of Ms. Giuffre's being a victim of domestic 9 violence. This is not relevant or minimally relevant. It's 10 Ms. Giuffre's burden, of course, to show the emotional distress 11 damages that she suffered as a result of Ms. Maxwell's 12 defamatory statement, and the jury can agree or disagree with 13 whether she's carried her burden of proof. 14 If we understand the defendant's argument correctly, 15 they say, well, this would have been a distressing event in 16 your life and, therefore, we should be free to introduce it in 17 front of the jury. Of course, that argument would allow, if 18 accepted, essentially any bad thing that's happened in any 19 plaintiff's life to be introduced if they seek emotional 20 distress damages because, my goodness, this event here or there 21 had some emotionally distressing effect on you. So it has 22 minimal to low probative value, and the prejudice is very 23 substantial. 24 Your Honor, obviously, has a great deal of experience 25 and are well aware of the domestic violence, blame the victim SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 H3VOGIU1 1 attitude that has to be confronted in various cases. 2 Frequently, if there's domestic violence that's at issue, an 3 expert witness comes in to explain to the jury, oh, why didn't 4 she leave? Why did she stay with this fellow who was beating 5 her up? She was free to walk out of the relationship. Why 6 didn't she do so? And there is a whole literature that I know 7 your Honor is familiar with and that we cited in our brief, as 8 well. 9 We don't want to get into that in front of the jury in 10 this particular case. This is a blame the victim tactic that 11 shouldn't be allowed. This has very marginal, if any, 12 probative value and a very significant prejudicial effect 13 because the jury will potentially blame the victim for staying 14 with her abusive spouse. 15 Now, in addition, you'll notice from the pleading that 16 the defendants aren't intent just on asking questions about 17 this, but they also want to go into the whole criminal case 18 against Ms. Giuffre's husband, you know, whether he appeared or 19 what the felony charges are and a variety of things. That, 20 obviously, has even less probative value than the information I 21 was discussing a moment ago and should be independently 22 excluded. 23 The next issue up is item 15. And here, we ask to 24 have excluded any suggestions that sex with a 17-year-old is 25 permissible. You will recall that there's debate about exactly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 H3VOGIU1 1 what years and what birthdays were in play and exactly what 2 Ms. Giuffre said about whether she was 15, 16, or 17. Fair 3 enough. They can cross examine her about, 'Did you say 16 when 4 you were, in fact, 17,' or whatever it is. We're not trying to 5 exclude that. 6 The limited point that we're trying to address here is 7 that they shouldn't say, 'Ah-hah, she was 17, therefore, she's 8 fair game.' 9 Under Florida law that we've cited in our pleadings, 10 there is no possibility of a child under the age of 18 11 consenting to sexual activities of the nature that are at issue 12 here, and therefore, the defendant should be precluded from 13 making that kind of suggestion. And so that's item 15. 14 MS. SCHULTZ: Turning to item 16 in the omnibus 15 motion. Ms. Giuffre has moved the Court to exclude medical 16 records. Here, I would actually like to direct the Court's 17 attention to defendant's response. Defendant here does not 18 cite a single case where a court allowed admission of unrelated 19 and irrelevant medical records into evidence at trial. 20 Defendant's brief also doesn't show how any medical 21 records are relevant here, and there are privacy issues at 22 stake. In fact, defendant does not cite to a single case in 23 which a court allows any medical records into evidence. 24 In defendant's entire response she cites two cases 25 only. Neither of them have anything to do with what documents SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 H3VOGIU1 1 might be admitted at trial. Both are orders resolving 2 discovery disputes under Rule 26. 3 Apart from her medical records, while defendant was 4 abusing her, such as when defendant took her to a hospital here 5 in New York when she was only 17, and the psychological records 6 related to Ms. Giuffre, which have been produced, which 7 incidentally are from 2011 and name defendant as her abuser, no 8 other medical records are relevant and should be excluded under 9 Rule 401. 10 Ms. Giuffre is seeking damages for emotional distress 11 from defamation. It does not open up the flood gates to every 12 single medical issue she's ever had in her life. Ms. Giuffre 13 has produced records, everything from treatment for a ferret 14 bite to details of her giving birth. These are not relevant, 15 and we can have a ruling in advance of trial that these things 16 should be excluded. 17 Defendant only seeks to use these records to confuse 18 the issues before the jury. Defendant offers no reason for 19 addressing the relevance of such documents one by one at trial, 20 and I think these can be safely excluded at this juncture. 21 MS. McCAWLEY: Your Honor, next is number 17, which we 22 addressed in our papers, as well, about the prior settlement 23 agreement. You've heard about it in this case, and we have 24 said that that should not come into evidence. 25 I think they'd like to use it to propose that that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 H3VOGIU1 1 amount has something that the jury should consider. Your 2 Honor, the papers set forth very clearly that there's a 3 specific rule of evidence directly on point with respect to 4 settlement agreements, and they can't be used in that manner. 5 Your Honor, we cite to our papers on that with respect 6 to any prior settlement agreement being entered into evidence 7 at the trial. 8 MR. CASSELL: I believe I have the next three. 9 Item 18 then is defamation litigation. And your Honor 10 is aware that there was a separate lawsuit that's spun out of 11 this situation where Cassell and Edwards filed a defamation 12 action in Florida State Court against Alan Dershowitz. Alan 13 Dershowitz then counterclaimed. That was litigated in Florida 14 State Court for about a year. Ultimately, the parties settled 15 their differences in an undisclosed financial arrangements and, 16 as part of the comprehensive settlement, Cassell and Edwards 17 then withdraw summary judgment against Dershowitz. 18 It was as expressly understood when the parties agreed 19 upon this confidential settlement, there was then a statement 20 in which it was said that Ms. Giuffre reaffirms her 21 allegations, and the withdrawal of the reference to the filings 22 is not intended to be and should not be construed as being an 23 acknowledgment by Edwards and Cassell that the allegations made 24 by Ms. Giuffre were mistaken. 25 There was a portion of the statement that talked about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 H3VOGIU1 1 "mistake", and that was indicated in the pleading withdrawing 2 the summary judgment motion as follows: "Edwards and Cassell 3 do acknowledge that the public filing in the Crime Victims 4 Rights Act case of the client's allegations against Defendant 5 Dershowitz became a major distraction from the merits of the 6 well-founded Crime Victims Rights Act case by causing delay 7 and, as a consequence, turned out to be a tactical mistake." 8 "Tactical mistake." "For that reason Edwards and Cassell have 9 chosen to withdraw the referenced filing as a condition of the 10 settlement." 11 That's all a very interesting lawsuit, but that's a 12 lawsuit that does not have Ms. Giuffre as a party. It was 13 Cassell and Edwards versus Alan Dershowitz, with claims going 14 back and forth. Cassell and Edwards were, of course, 15 vindicating their own professional interests and their 16 professional reputation responding to the attacks that had been 17 made by Mr. Dershowitz, and they chose to settle the case, as 18 did Mr. Dershowitz, for undisclosed financial reasons. 19 And also, from the fact I think your Honor is now 20 aware, that there were some witnesses who were not available. 21 Sarah Ransome has come forward in this case to say that she was 22 a traffic to Alan Dershowitz in the same way that Ms. Giuffre 23 alleges, and that was information that has only recently become 24 available. 25 The point is, you have enough business on your hands SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 H3VOGIU1 1 without getting into the details of another separate lawsuit 2 that did not involve Ms. Giuffre as a party, and so we've moved 3 in limine. 4 And let me make clear that I emphasize the narrowness 5 of our motion here. We seek to preclude evidence involving 6 that litigation. Your Honor has already heard from my 7 colleague, Ms. McCawley, who has presented our argument for why 8 Dershowitz should not be in this case at all, and of course, if 9 we prevail on point 1, this point becomes irrelevant. 10 But in addition to point 1, we don't need to be 11 getting into the details of the separate lawsuit. It's not 12 relevant to the case of Giuffre versus Maxwell. Defendants, in 13 their responsive brief, if I understand correctly what they say 14 is, oh, well look. Why didn't Ms. Giuffre join the lawsuit or 15 why hasn't she filed a lawsuit against Dershowitz? What's 16 going on there? 17 Well, of course, your Honor is aware, there are a 18 variety of statutes of limitation around the country, and 19 indeed around the world. Ms. Giuffre has not -- those statutes 20 have not all run at this point. There are varying 21 considerations that go into whether or not someone like 22 Ms. Giuffre would file a lawsuit, and these issues shouldn't be 23 discussed in front of the jury. That's nothing to do with this 24 particular lawsuit. 25 Moreover, defendant apparently argues that statements SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 H3VOGIU1 1 that Edwards and Cassell made in this other lawsuit are somehow 2 binding on Ms. Giuffre. Edwards and Cassell had separate legal 3 counsel, Florida attorney Jack Scarola. Whatever was going on 4 in that case isn't binding on Ms. Giuffre. 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. Giuffre. 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. Giuffre, 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 24 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. (212) 805-0300 38 H3VOGIU1 1 rights of similarly situated victims" -- 2 THE COURT: I'm familiar with it. 3 MR. CASSELL: Okay. Right. So that's Judge Marra's 4 ruling. 5 And you understand that was obviously on a technical 6 joinder issue. The joinder issue, whether that was a 7 good joinder motion or a bad motion, has nothing to do with 8 whether or not Ms. Giuffre was defamed. 9 THE COURT: How do you propose to handle the joinder 10 motion evidentially? 11 MR. CASSELL: Right. We think the joinder motion 12 should simply come into evidence as the pleading to which 13 Ms. Giuffre -- I'm sorry -- Ms. Maxwell was responding. 14 THE COURT: Lock, stock, and barrel? 15 MR. CASSELL: So we are obviously waiting for guidance 16 from your Honor. For example, if you say, look, Dershowitz, 17 let's just not get into that, that's -- 18 THE COURT: That didn't answer my question. Please. 19 MR. CASSELL: I apologize. 20 THE COURT: You talk about many trials, many 21 arguments. You want to put in the entire motion? 22 MR. CASSELL: Yes, unless your Honor -- I want to be 23 direct here. 24 Yes. However, if you say, look, Dershowitz isn't 25 coming into this case, there are some allegations about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 H3VOGIU1 1 Dershowitz that we would then believe, in light of your ruling, 2 should be redacted. But until we have any rulings from your 3 Honor restricting the case, it's our position that all -- 4 THE COURT: But you don't have an edited version of 5 the intervention motion that you would like me to consider. 6 MR. CASSELL: We would propose one once we get rulings 7 from your Honor on the motions in limine. 8 THE COURT: By the way, just parenthetically, folks, 9 these motions in limine are good fun, and we're all having a 10 nice time, but they're not binding. I mean by that, I'm 11 expressing my view, or I will, I hope, some day express my view 12 on these issues, but the trial may turn in a different 13 direction and, you know, who knows. Okay. 14 MR. CASSELL: We understand. And one of the reasons 15 we have not proposed a redacted joinder motion, that showed up 16 in a reply brief from the defendant, we didn't move to file a 17 surreply with a possible motion. We think the best way to 18 proceed, and we're happy to get guidance from your Honor, but 19 once we have rulings from you on what's in the case and what's 20 out, then we might go through the joinder motion. But where 21 we're sitting today, the joinder motion goes in in its 22 entirety. 23 But what does not come in is then, all right, that's a 24 legal pleading. Gee, I wonder what happened. Judge Marra made 25 a ruling, we don't need to get into the details of that ruling. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 H3VOGIU1 1 Of course, we would want to explain that there were nine 2 separate reasons why those allegations were included. Judge 3 Marra referred to the first of the nine reasons. We have eight 4 other additional reasons why those were included. It would 5 essentially, again, be a mini trial about, well, what does a 6 joinder motion mean? Did you file under Rule 15? It should 7 have been under Rule 21. What did the judge do? 8 It has no bearing at all on the issues in the case, 9 and it, of course, has very substantial prejudicial effect 10 because it leads to a confusion of the jury. The jury's trying 11 to figure out, well, what's going on in the Crime Victims 12 Rights Act case when the issue is whether or not Ms. Giuffre 13 defamed. 14 Now, there is an issue in their pleadings. They say, 15 well, this could end up being relevant because there might be 16 some kind of a privileged setting issue. Again, I think your 17 Honor correctly was pointing out a moment ago, if things show 18 up in the trial, it's possible that something could change, but 19 we don't anticipate that becoming an issue in the trial at this 20 point. If the issue of whether this was a privileged setting 21 somehow becomes an issue in the case, then it would be time to 22 revisit that during the trial. 23 In any event, issues of whether this was a privileged 24 setting or not aren't litigated in front of the jury, that's a 25 legal issue for your Honor to determine whether the setting was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 H3VOGIU1 1 or was not privileged. We don't take jury evidence on that, 2 you know, Judge Marra's ruling, and therefore, that should be 3 excluded. So that is item number 19. 4 Let me turn then to item 20, and I'm handling that. 5 This is essentially a hearsay exercise. We want information to 6 be excluded regarding Rebecca Boylan. Why? Because Rebecca 7 Boylan has not been deposed and is not going to be a witness in 8 the case. 9 As we understand what the defendant is planning to do, 10 she's planning to call Mr. Dershowitz. Mr. Dershowitz is going 11 to say Ms. Boylan told him that Ms. Giuffre told him something, 12 and so we have the classic hearsay within a hearsay situation. 13 The problem, of course, is that Boylan is not here. 14 The defendant's pleadings say, ah-hah, but this is an 15 admission by Ms. Giuffre, and it would be if Ms. Boylan were on 16 the stand so we could ask her questions about, well, did 17 Ms. Giuffre really say that? And what did she mean? And 18 wasn't she saying that she's been abused by Ms. Maxwell? But 19 they want to skip over that intermediate stuff, have Dershowitz 20 describe what Boylan describes Ms. Giuffre said, and that's 21 obviously -- and then I'm assuming Dershowitz is going to put 22 his spin on what Ms. Boylan allegedly said to him. There are 23 no set of circumstances in which that hearsay within hearsay 24 could be admissible because Ms. Boylan has not been deposed, 25 and is not here, it's rank multiple hearsay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 H3VOGIU1 1 I am about done at this point. 2 With regard to the remaining issues, you'll be happy 3 to hear that I think things can be sped up. We believe that 4 these issues should simply be, as your Honors I think was 5 suggesting a moment ago, deferred to trial. 6 Items 21, 22, 23, 24, 25, 26, 27, 28, and 29, those 7 were sort of just kind of protective measures. The one 8 footnote or caveat we would add to that, your Honor. We think 9 this gets punted to the trial, but we would simply ask your 10 Honor to direct defense counsel before they let the cat out of 11 the bag on any of these that there be a sidebar or hearing 12 outside of the jury just so that, you know, our motion in 13 limine doesn't become moot because they've already effectively 14 put it in front of the jury. 15 The one that's of particular concern is alleged bad 16 acts by the defense team. At various points, I think your 17 Honor, unfortunately, has seen some, you know, frankly 18 aggressive language directed to the plaintiff's team here by 19 the defense team. We're prepared to respond to each and every 20 one of those allegations. We've tried not to get into the back 21 and forth because we think it's irrelevant. 22 But if there was to be some kind of an attack launched 23 on any of the members of the Boies Schiller Firm, of Brad 24 Edwards, myself, we would ask that we be given leave to address 25 that at sidebar, in-camera, or outside the presence of the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 H3VOGIU1 1 so that we can keep the fact that we have done something bad 2 that should then be held against our client away from the jury. 3 But all these remaining things we are in agreement, I 4 think with the suggestion you were perhaps making a moment ago, 5 we can deal with these issues at trial. 6 That's our omnibus motion in limine, your Honor. 7 THE COURT: Thank you. 8 MS. MENNINGER: The omnibus motion reads like a list 9 of everything plaintiff has lied about or anything that would 10 undercut her claim for damages. 11 Plaintiff quoted Passim in her reply brief from a 12 particular federal evidence treatise, and I would like to tell 13 the Court, she left out the most important parts, and that is 14 the ones that relate to 405(b). 15 As that treatise reads, "Character is an element of a 16 defense in a defamation case if the defending party claims that 17 the statements in question are true and seeks to prove that the 18 plaintiff has the character ascribed to her or to reduce 19 damages by showing that her reputation is so bad the statement 20 did no harm. 21 "In such cases, pursuant to Rule 405, all forms of 22 character evidence are admissible wherever relevant, including 23 opinion, reputation, and specific instances of conduct." 24 As your Honor found in our motion to dismiss ruling of 25 February 29th of last year, "Though defendant never called SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 H3VOGIU1 1 plaintiff a liar, to call her claims obvious lies that have 2 been shown to be untrue demands the same meaning. Plaintiff 3 cannot be making claims shown to be untrue that are obvious 4 lies without being a liar." 5 Ms. Maxwell has stated in her answer after that that 6 her statement was true; that is, plaintiff is a liar. She is 7 thus entitled by Rule 405 to introduce all forms of character 8 evidence, including specific instances of conduct, opinion, and 9 reputation. 10 What does that evidence look like? Plaintiff's mother 11 described her as a liar, plaintiff's fiance described her as a 12 liar, plaintiff's employer from 2002 described her as a liar. 13 Your Honor, I would like to start with the first one 14 that plaintiff started with, and that is motion in limine 2, 15 which is Bill Clinton being on the island. 16 Ms. Maxwell is going to testify at this trial, and 17 she's going to testify regarding the obvious lies that 18 plaintiff told her. One story that plaintiff has told is that 19 Ms. Maxwell was on the island with Bill Clinton and herself at 20 a dinner party. If I may approach, your Honor? I have three 21 exhibits. Two for now. 22 THE COURT: I think in duplicate, to the extent that I 23 think. 24 MS. MENNINGER: I'd like to first direct the Court's 25 attention to the news article by -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 H3VOGIU1 1 THE COURT: I've read it. 2 MS. MENNINGER: -- Sharon Churcher. 3 THE COURT: Yes, I've read it. 4 MS. MENNINGER: Okay. It's the one in which 5 Ms. Giuffre, on March 5th, 2011, gave a long and lengthy 6 interview to Sharon Churcher describing her experience on the 7 island with Bill Clinton, with Al Gore, with Al Gore's wife, 8 with all kinds of famous people. And the island event featured 9 large and media coverage. If you notice the date of that 10 article, your Honor, it's March 5th, 2011. 11 The next document I provided is a press statement 12 issued by Ghislaine Maxwell on March 10th, 2011, so five days 13 later, in which she writes, care of her attorneys, "Ghislaine 14 Maxwell denies the various allegations about her that have 15 appeared recently in the media. These allegations are all 16 entirely false." 17 Your Honor, the last document I would like to direct 18 your attention to -- by the way, after Ms. Maxwell published 19 this press release, Virginia Roberts did not sue her, she did 20 not claim that she had been emotionally distressed or injured 21 by being called, essentially, a liar in this particular press 22 release. And also, with respect to the Bill Clinton article, 23 your Honor, the evidence at trial will show a substantial 24 number of emails between Virginia Roberts and Ms. Churcher 25 contemporaneous with this article. In none of them does she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 H3VOGIU1 1 say, 'You got it wrong. I never saw Ghislaine Maxwell on a 2 helicopter with Bill Clinton. I never said that to you,' she 3 did none of that. 4 So your Honor, the last document, and it really, I 5 think, actually helps clarify the question your Honor raised 6 when you came out to court this morning, is an email. It's an 7 email from Ghislaine Maxwell to Alan Dershowitz, January 6, 8 2015, and it has a document attached called "Four Press 9 Complaints". 10 Your Honor will notice that this document is not 11 marked confidential, it was produced by Ms. Maxwell over a year 12 ago, it is marked Ghislaine Maxwell 0006, and it's a 13 communication between herself and Alan Dershowitz, someone with 14 whom she does not have a joint defense agreement, and that's 15 why she produced this email. 16 Your Honor, this email, as you can tell from the date, 17 was sent four days after the allegedly defamatory statement at 18 issue. It reflects Ms. Maxwell's dossier of all of the 19 statements from the papers that have been shown to be 20 completely untrue or show inconsistency in her story. Each 21 article is listed so you can find that link that references the 22 lies are inconsistencies. 23 Your Honor, if you look at this document that was sent 24 just a few days after the January 2nd email, and you turn to 25 page 3, which is actually the attached document, "Four Press SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 H3VOGIU1 1 Complaints", because Ms. Maxwell says she's preparing a press 2 complaint in the UK, in other words a legal action, the third 3 page, your Honor, is the document that was attached that was 4 produced over a year ago. 5 How this document reads at the top, "Drafted by 6 Ms. Maxwell. I have copied direct lines and quotes from 7 articles, and my comments are in orange after the quote. The 8 relevant article that the quotes came from is listed below the 9 last quote. Below, I think, are some of the irrefutable 10 contradictions and interesting additional details that can be 11 used in the letter to the mail and in the following press 12 complaints. In addition, this article on Rothstein you may 13 find helpful. 14 "What is the number one lie that Ms. Maxwell points 15 to? Number 1. Bill Clinton identified in lawsuit against his 16 former friend and pedophile Jeffrey Epstein who had regular 17 orgies." 18 And then Ms. Maxwell's commentary directly afterwards, 19 in a quotation, "Huge problem is that Clinton never came to the 20 island." 21 Your Honor, in plaintiff's response -- excuse me -- 22 reply brief, they claim Ms. Maxwell had no knowledge in early 23 January, 2015 that Bill Clinton had never been to the island. 24 Obviously, she had knowledge of that because she was claimed to 25 have been there with him and claimed to have flown on a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 H3VOGIU1 1 helicopter with him by plaintiff in her Sharon Churcher 2 published articles. 3 And here, in January of 2015, Ms. Maxwell is saying he 4 was never on the island. It doesn't depend on Louie Freeh or 5 anybody else. That's obviously -- in this particular email, 6 your Honor, she's cataloged all of the changed stories of 7 Virginia Roberts, all of the lies Virginia Roberts has told, 8 all of the different news articles in which those lies were 9 told, and said that this is going to be the basis of her press 10 complaint in the UK. 11 Likewise, on the next page, your Honor, GM009, at the 12 bottom, again, she specifically refutes the claims about Bill 13 Clinton being on the island and says, "He was never there." 14 Right after that, she says, "Virginia discussed that Al Gore 15 and his wife Tipper were also guests on the island." And 16 Ms. Maxwell writes, "They have also never been on the island, 17 and I don't believe they even know Jeffrey Epstein." 18 So when the jury is asked to consider what Ms. Maxwell 19 meant when she issued, through her attorney and her press 20 agent, the January 2nd, 2015 statement, we have a 21 contemporaneous document drafted by her that was produced in 22 discovery a year ago. None of it refers to the Jane Doe 102 23 complaint, none of it refers to the CVRA joinder motion. None 24 of it. It refers simply to press allegations that have been 25 floating around about her and about her involvement with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 H3VOGIU1 1 Jeffrey Epstein and Virginia Roberts. 2 Plaintiff's counsel has said statements made in the 3 newspaper articles are hearsay. That is often true, but when 4 it's plaintiff's statement in a news article, it's called a 5 party admission. 6 Plaintiff complains that she didn't have the 7 opportunity to depose President Clinton. Your Honor, 8 plaintiff's counsel sought to depose President Clinton in their 9 reply brief at the end of June, 2016, about a week before 10 discovery was to close. They didn't even mention it in their 11 opening brief, they raised it in docket number 211. 12 In that request, which I didn't have an opportunity to 13 object to because it came in reply, she said she wanted to 14 depose him to, "establish his close personal relationship with 15 Epstein", she said nothing about wanting to see whether he had 16 been on the island, whether he flew in a helicopter, or 17 anything like that. 18 With regard to Louie Freeh, your Honor, we disclosed 19 him as a witness in our Rule 26 disclosures last March -- 20 excuse me -- February of 2016. Plaintiff made no effort to try 21 to depose him, made no effort to find out his basis of 22 knowledge. We produced in discovery his report in which he 23 submitted a FOIA request. 24 Yesterday, you will recall Ms. McCawley testifying 25 about how she, herself, issued a FOIA request and got in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 H3VOGIU1 1 response an FBI 302 motion -- excuse me -- statement of -- she 2 claims is authentic, but she doesn't know how it was redacted, 3 doesn't explain how it's redacted, but she wants to admit that 4 into evidence. 5 We are actually offering to put on the stand the 6 person who submitted the FOIA request to explain what was 7 requested and what was received. That is not expert testimony, 8 your Honor, that's chain of custody. 9 With regard to motion in limine number 5, evidence of 10 denials by Prince Andrew and Buckingham Palace. Again, your 11 Honor, in a defamation case -- and I'm now quoting from 12 plaintiff's treatise that they cited throughout their response 13 and their reply -- excuse me -- "In defamation cases, 14 defendants can also prove that other liables and rumors about 15 the claimant are circulating, at least if they are widespread, 16 to demonstrate that it is not what the defendant said about the 17 plaintiff that causes her reputation to suffer but what others 18 said." 19 Plaintiff also cites Sack of Defamation. He supports 20 our position, your Honor. Here, we have a statement by 21 Buckingham Palace that was issued on the internet and widely 22 circulated. There is also a videotape of Prince Andrew denying 23 Virginia Roberts' claims. Both of those were far more 24 circulated than anything Ms. Maxwell said, as evidenced by the 25 fact that plaintiff can't even find Ms. Maxwell's statement on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 H3VOGIU1 1 the internet anywhere quoted in whole. 2 Also, Alan Dershowitz widely circulated his denials of 3 plaintiff's claims. He was on Good Morning America, he was on 4 CNN's Nancy Grace Show, he was on Fox News. All of those 5 places he called Virginia Roberts a liar, and a serial liar, 6 and other things. 7 We are entitled, your Honor, both through cross 8 examination of plaintiff as well as cross examination of her 9 experts, to challenge whether or not anything said by 10 Ms. Maxwell caused damage to her reputation or whether other 11 people calling her a liar on national news and international 12 news is, in fact, the cause of any damage to her reputation. 13 She is the one, of course, who has put her reputation 14 at issue. Having the Duke of York and Buckingham Palace issue 15 denials is not hearsay, your Honor, it is offered for the fact 16 that the denial was widely circulated and very likely 17 contributed to people considering plaintiff to be a liar. 18 Motion in limine number 6, plaintiff's sexual history 19 and reputation. This salient point, your Honor, of course, 20 again, under 405(b), is that once you have put your reputation 21 for being a liar in question, then other specific instances of 22 false claims become highly relevant and probative of your 23 character for truthfulness, particularly with regard to sexual 24 assault and sexual abuse. 25 Furthermore, your Honor, plaintiff is the one who's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 H3VOGIU1 1 claiming she has damages of post-traumatic stress disorder, and 2 she is the one who is going to call to the stand her 3 psychiatrist to talk about that patient, and she is the one 4 that gave him evidence about these other acts to him and on 5 which he has relied in reaching his conclusions. It is 6 impossible for us to not be able to cross examine her expert 7 about preexisting PTSD caused by incidents and events unrelated 8 to Ms. Maxwell. 9 Motion in limine number 7, whether or not Ms. Giuffre 10 can be called a prostitute. Your Honor, no one in this case, 11 no counsel, nobody that I'm aware of involved with the 12 litigation has referred to Virginia Giuffre as a slut. That is 13 something that plaintiff's counsel has brought up, and you will 14 notice there is absolutely no cite in any record, in any 15 document referring to her as such. 16 What has come up, your Honor, are internet sites in 17 which Ms. Giuffre has been called all kinds of things that are 18 unrelated to Ms. Maxwell, that do not cite Ms. Maxwell. For 19 example, her friends gave interviews to the press in which they 20 described -- and this is attached as my Exhibit L -- described 21 Virginia Giuffre as "a money hungry sex kitten who enjoyed her 22 lavish lifestyle". We cannot talk about plaintiff's reputation 23 on the internet without talking about what is out there on the 24 internet. We cannot cross examine her or cross examine her 25 experts about what her reputation is if we can't ask about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 H3VOGIU1 1 these other things that are circulating about her that have 2 nothing to do with Ms. Maxwell. 3 Mr. Cassell referred to our expert Phillip Esplin, 4 Dr. Esplin, and saying that he agreed not to refer to Virginia 5 Roberts as a prostitute. Your Honor, that came up in the 6 context of a cross examination in which he said he has no idea 7 whether any of her claims are credible or not. He does not 8 believe it's within the province of the psychiatrist to be 9 making credibility determinations. So he was not in any way 10 suggesting, in fact he testified for hours to the contrary, 11 that he knows whether her claims of being a prostitute are true 12 or not true, and he agreed not to talk about. 13 The only context in which I think this comes up, your 14 Honor, are witnesses or people on the internet who have made 15 disparaging remarks about the plaintiff that have to be the 16 subject of her reputation and her request for damages that she 17 says are related to Ms. Maxwell. 18 Plaintiff's drug abuse, motion in limine number 8. 19 They have conceded, as they must, that the period of time about 20 which Ms. Giuffre is testifying is fair game for her discussion 21 of all of her illegal drug use. And it wasn't just 22 prescription drugs, she has testified that she was on a number 23 of different drugs at the time, and that because of those 24 drugs, her memory of events from 2000 are, quote/unquote, 25 foggy. And she says that's one of the reasons she can't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 H3VOGIU1 1 remember the names of the foreign presidents that she was 2 trafficked to, and these other famous people, because she was 3 taking so many drugs she just can't remember. 4 Obviously, your Honor, a witness' ability to perceive 5 and recall and relate events that happened a long time ago that 6 were affected by drug use need to be brought to light before 7 the jury. 8 The second issue, your Honor, relates to the use of 9 prescription medication. What you heard plaintiff say is they 10 would like to introduce evidence that she's taking prescription 11 drugs properly, but they want to exclude us from cross 12 examining her about that to see whether or not she was taking 13 prescription drugs improperly. That's called cross 14 examination, your Honor. 15 Her use of prescription drugs has been well-documented 16 in her doctor's records, and she has made false statements to 17 her doctors regarding her need for prescription drugs. She's 18 gone from one doctor to the next, telling one that she hasn't 19 taken any Valium for years, and then the next one -- and then 20 we have the records showing that that's just not true. She's 21 told doctors that she was stressed out about a big litigation 22 in New York, she told a doctor that in the year 2014, this 23 lawsuit wasn't filed until 2015, so she's made statements to 24 doctors that are inaccurate. 25 Your Honor, her statements reflected in her medical SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 H3VOGIU1 1 records may or may not be admissible depending on what she says 2 on the stand, but they are her statements and they are, 3 therefore, potentially admissible as admissions of a party 4 opponent under 801(d)(2). 5 Moreover, her doctor is the one who wants to testify 6 about her need for medications going forward, and he has been 7 the one who's talked about her previous use of medications. 8 Her Colorado doctor testified that she had misled him and not 9 fully disclosed her need for prescription medications, and 10 there's also the question about whether or not, if she opens 11 the door and says she's properly used medications for 12 post-traumatic stress disorder, then we should be able to 13 examine her, not only with respect to that, but her other use 14 of prescription and illegal drugs. 15 And your Honor, I think it is inappropriately limiting 16 to say we can only talk about her use of drugs during the 17 period of '99 to 2002 because any drug use that she has used in 18 the meantime can go to establish whether or not she truly had 19 post-traumatic stress disorder or any other mental health 20 disorder. 21 She has filed a lawsuit asking for $30 million in