22 emotional distress, pain and suffering, and her doctor is going 23 to testify that she needs medications as a part of managing 24 that pain and stress and emotional distress. If she's been 25 using drugs in the interim that may affect her memory, if she's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 H3VOGIU1 1 using drugs now that may affect her memory, or if she's 2 inappropriately used drugs in the meantime, all of that would 3 go to whether or not she truly has the emotional distress that 4 she claims. 5 Motion in limine 9, plaintiff's criminal history. If 6 I understand plaintiff's argument, they do not want her to be 7 cross examined either under 608(b) or 405(b) with regard to a 8 specific instance of dishonesty; that is, her theft from her 9 employer. 10 There are legions of cases, your Honor, that find 11 theft to be a crime of dishonesty and admissible for proof of 12 character of dishonesty. 13 Not only, your Honor, did she get charged by the 14 authorities in Florida with this crime of theft from her 15 employer, an arrest warrant was issued for her, that arrest 16 warrant was outstanding at the time she, quote/unquote, fled to 17 Thailand. That arrest warrant remained outstanding until the 18 year, I think 2009 or 2010, when it was quashed. Plaintiff 19 failed to come back to this country during that entire time. 20 It got quashed because it had been such a long passage of time. 21 THE COURT: Who was the employer? 22 MS. MENNINGER: It was the Roadhouse Grill, your 23 Honor. It was a burger joint. And she was working at that 24 Roadhouse Grill in March of 2002 during the period of time she 25 claims that she was a sex slave. She claimed that she was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 H3VOGIU1 1 sex slave, that she was getting paid wads of cash, thousands of 2 dollars by Jeffrey Epstein, and this was happening 24/7. And 3 we asked in discovery, and we got a bunch of records, not only 4 of her working at the Roadhouse Grill, but also of her working 5 at a bunch of other restaurants, at a veterinarian's office, 6 all kinds of things during the period of time that she says she 7 was a -- what is commonly known as a sex slave, is how she 8 described it in her papers. 9 Your Honor, she compounded the lie about the theft 10 because she wrote a book manuscript, as you know. And in that 11 book manuscript, she describes that it was not her who took the 12 money from the tip jar, it was her boyfriend, Tony Figueroa, 13 and that's also what she testified during her deposition. 14 She said, for example, that she didn't commit the 15 theft, that he came in at the end of her shift, and while she 16 wasn't looking, he's the one that took the tips. 17 Well, we deposed Tony Figueroa, and Tony Figueroa, 18 your Honor might be surprised to hear, is a gentleman with 19 several felonies to his name, which he gladly recounted on the 20 witness stand on videotape. He talked about all the thefts he 21 has committed, thefts from a video store, he was charged with 22 felonies, he was put on probation for ten years, he recently 23 had gotten out, but he actually denied that he was the one who 24 took the money from the tip jar. 25 So there's the lie, there's the tip jar theft, then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 H3VOGIU1 1 there's the lie about the tip jar theft, and then there is the 2 arrest warrant that was issued that plaintiff left the country 3 for over a decade while that arrest warrant was outstanding. 4 Your Honor, the fact of police contacts during this 5 timeframe, including this one, go directly to other issues, 6 including whether or not plaintiff was truly the sex slave that 7 she describes. She had an opportunity, because she called the 8 police on numbers of occasions during the relevant time 9 period -- she called them to report a theft, she called them to 10 help with a civil assist getting her out of her apartment, she 11 called them for all kinds of reasons -- and at none of those 12 points of time did she tell the police that she was currently 13 then a, quote/unquote, sex slave. 14 Your Honor, the Roadhouse Grill also -- the Mail On 15 Sunday is the one who printed a story about the Roadhouse Grill 16 and confronted her aunt who was being interviewed for one of 17 their stories about it. The aunt was in the process of saying 18 what a great niece she had, and then the news asked her about 19 the Roadhouse Grill theft, and she said, "Wow, I didn't even 20 know that she was working in a burger joint." So it goes to 21 her internet reputation. 22 And finally, your Honor, I think if you look back to 23 that email between our client and Mr. Dershowitz on page GM009, 24 it's one of the lies that our client specifically referred to. 25 She quotes Virginia Giuffre's statement, "Jeffrey bought me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 H3VOGIU1 1 jewelry, diamonds were his favorite, and wonderful furniture. 2 He was paying me very well because I'd give him sex whenever he 3 wanted," to which our client responded, "If he was paying her 4 so well, why steal from her burger job in 2002?" So it's 5 within our client's knowledge on January 6, 2015, and that is 6 an additional reason why it should be admitted going to her 7 state of mind or actual malice, as plaintiff likes to call it. 8 Your Honor, with respect to the school records, the 9 school records are what they are. They explain that she was in 10 school during the entire time she claims that she was a sex 11 slave, it gives her numbers of days of attendance, I don't 12 understand why those records wouldn't be admitted in cross 13 examination of her as to her whereabouts at certain occasions. 14 Plaintiff certainly intends to introduce flight logs to show 15 that she was or wasn't in certain places, so school records 16 show where she was and wasn't on certain dates, and that's 17 important, your Honor. 18 Moreover, plaintiff is the one who told Sharon 19 Churcher about her own problems with school. She told Sharon 20 Churcher, and Sharon Churcher published with her authorization 21 that she went back to school to get her GED, and she wanted to 22 study for massage. She talked about dropping out of school. 23 Police records reflect the fact that she was a truant during 24 this period of time, that her mother was concerned about her 25 abusing drugs and alcohol. The school records intimately SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 H3VOGIU1 1 intersect with the entire story that plaintiff has told about 2 being a sex slave in the years 1999 to 2002. 3 Also, your Honor, they go to damages because plaintiff 4 has claimed that she should be entitled to a certain amount of 5 damages, and her own experts have talked about her being a 6 troubled child. Again, this is something that they told their 7 psychiatric expert, and he relied on finding that she was a 8 troubled child, and then he's made inferences from there about 9 why she should be entitled to certain damages, and I think the 10 school records are a fair game for cross examination of him. 11 Motion in limine number 11, her bad childhood 12 behavior. Again, your Honor, this is exactly -- plaintiff went 13 in to see the psychiatrist, went in to see hers and our 14 independent medical examiner, and in both cases she described 15 all of her, quote/unquote, bad childhood behavior. So it goes 16 to her damages, your Honor. They want to elicit what they want 17 to elicit and keep us from eliciting anything that would 18 contradict it. 19 But putting your reputation and your character in 20 issue, as she has in this case, about the time when she was a 21 child is necessarily a part of our cross examination to explain 22 to a jury what her reputation at the time of the acts in 23 question were. 24 She was a truant, reported to the schools as a truant, 25 reported by her mother to the police, circulated with people in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 H3VOGIU1 1 the community out trying to find her, and she was known as such 2 in her community. So to say somehow that we can't talk about 3 her reputation for truth telling, her reputation for honesty at 4 the time she was a child when she claims that she was the 5 victim of sex abuse, is not supported by the law. 6 Plaintiff also cites to Sack on Defamation, and I 7 believe the cite is 10, Section 5. And your Honor, I think 8 this helps clarify a lot of what our position is in this case. 9 Sack believes, as we do, that it is entirely 10 appropriate under 405(b) to question a plaintiff who has 11 alleged defamation, whose reputation is an issue about all 12 kinds of bad acts. They have said, just now, that there is 13 just no reason we should be allowed to ask about all these 14 other bad acts. 15 Sack cites, your Honor, to an Eleventh Circuit case, 16 Schafer vs. Time, Inc. In that case, your Honor, Sack says the 17 Eleventh Circuit found the district court had been correct when 18 it ruled that the defendant, which allegedly accused the 19 plaintiff of being a traitor, "would be permitted to question 20 the plaintiff about a felony conviction, a possible violation 21 of his subsequent parole, convictions for driving under the 22 influence, an arrest for writing a bad check, failure to file 23 tax returns, failure to pay alimony and child support, and 24 evidence concerning plaintiff's efforts to change his name and 25 social security number." In other words, once you put your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 H3VOGIU1 1 reputation at issue, all of these specific instances going to 2 your honesty are fair game. 3 In this case, we have asked plaintiff whether she 4 filed tax returns. She said, "No." Tax fraud is not a private 5 matter, as plaintiff contends, it is a crime. It is a crime of 6 dishonesty. 7 She likewise put into her complaint that her 8 reputation was injured in her professional capacity as 9 President of Victims Refuse Silence. We inquired whether 10 Victims Refuse Silence was, indeed, a legitimate enterprise. 11 We learned that they had not met their tax obligations and they 12 had not been funded. That is, as your Honor knows, the subject 13 of 702 motions, so I won't repeat it all here. 14 I will say, however, that both of those issues, 15 failure to file tax returns and tax fraud, are exactly the 16 kinds of evidence permissible under 405(b) when you are 17 attempting to establish the truth of your statement that 18 plaintiff is a liar. 19 Motion 14, evidence of being a victim of domestic 20 violence. Your Honor, in this case, plaintiff claims 21 $30 million in pain, suffering, and emotional distress. 22 Plaintiff's expert, Dr. Kliman, testified that domestic 23 violence by her husband is likely a cause of exacerbation of 24 her PTSD. He also testified it was a very violent episode and 25 more likely happened more than once. He also testified that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 H3VOGIU1 1 she needs additional marital and sexual counseling based on her 2 disinterest in sex, which she claims is caused by the 3 defamatory statement. 4 Our expert, your Honor, likewise found that the far 5 more likely cause of any dysfunction in her marriage which 6 arose at the time of the domestic violence incident and was 7 more likely the cause of any PTSD pain, suffering, or emotional 8 distress that she was experiencing. 9 That domestic violence incident happened in early 10 March, 2015, a couple of months after the allegedly defamatory 11 statement, and seven months before plaintiff brought this 12 lawsuit. 13 The criminal proceedings against her husband also are 14 relevant to her damages, apart from Dr. Kliman's testimony. 15 Her husband was ordered to live away from their home, leaving 16 her to care for her three children alone. He then stopped 17 participating in the court-ordered domestic violence 18 counseling, and he fled the country with an active arrest 19 warrant that remains outstanding to this date from Colorado. 20 All of these alternative sources of emotional distress 21 for plaintiff should be admitted, as her expert, Dr. Kliman, 22 has testified, in as far as they impact supposed pain, 23 suffering, loss of enjoyment of life. 24 Motion in limine number 15, any testimony that sex 25 with a 17-year-old girl is, quote/unquote, lawful. Plaintiff SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 H3VOGIU1 1 is the one who claims she had sex with various people at 2 various places at various times, some when she was 17, some 3 when she was 18, some when she was 19, some in Florida, some in 4 England, some in New York, some in New Mexico. In all of those 5 cases, except Florida, the age of consent is 17. 6 I don't know what evidence plaintiff is going to 7 introduce about what sex she had, where, with whom, and her age 8 at that time because those sands have shifted dramatically 9 during the course of this litigation. All I can say, your 10 Honor, is, if she tries to introduce evidence that she had sex 11 at a certain place and time and claimed that it was unlawful, 12 your Honor will be duty bound to instruct a jury on what is or 13 isn't lawful in a particular jurisdiction at a particular time 14 in a particular place. 15 Your Honor, I would submit that motion in limine 16 16 regarding the medical records, again, is something that depends 17 dramatically on what plaintiff introduces during her case in 18 chief, but there are many statements, as I mentioned earlier, 19 to her doctors which would be admitted as nonhearsay if offered 20 against her as party admission. 21 There are many statements over the last 15 years that 22 relate to her mental condition, that relate to her medications. 23 Do I anticipate asking about her ferret bite? I do not. Do I 24 anticipate asking about the other things that are listed in her 25 motion in limine? I do not. But I do believe that there are a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 H3VOGIU1 1 number of times that she saw doctors, made statements, sought 2 treatment, got medications, all of which are reflected in her 3 medical records and are something that about which she may be 4 cross examined. 5 She claims her medical records are private. She is 6 the one seeking $30 million in emotional distress, pain and 7 suffering, and I think when you do that, I'm sure her lawyers 8 advised her that her privacy rights with respect to her medical 9 records would no longer be the same as a private individual. 10 Your Honor, Motion in limine 17, again, the dollar 11 value of the Jane Doe settlement depends entirely on what 12 happens in terms of plaintiff's case in chief and whether any 13 other evidence regarding the Jane Doe 102 litigation comes into 14 evidence, because if it does, then the settlement and the 15 settlement amount may very well become relevant, but I can't 16 say right now how anyone intends to use that at trial, why it 17 would be relevant, and I can't say whether or not the 18 settlement amount would likewise be relevant. 19 Motion in limine 18, the Cassell-Edwards-Dershowitz 20 litigation and their settlement. It's interesting to note 21 Mr. Cassell to refer to himself in the third person when he was 22 talking about that litigation. 23 Your Honor, there are a number -- I can count five 24 reasons, at least, that that case is relevant to the facts in 25 this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 H3VOGIU1 1 Plaintiff was a witness in that case. She was deposed 2 in that case. She testified under oath in that case, 3 represented by the same counsel that she has here. Her 4 testimony in that case is admissible. 5 She participated in that case, your Honor, from March 6 of 2015 or so until it settled in or around April of 2016, and 7 she reported to her doctors that it was causing her a 8 significant amount of stress. In fact, shortly before she was 9 deposed in that case she went to a doctor and requested that 10 she get more Valium to help her handle her upcoming deposition. 11 Dr. Miller, our psychiatrist, found that her 12 participation in that lawsuit as a witness caused her 13 significant stress and explained many of her complained of 14 symptoms, and he said that they were exacerbated by her 15 participation in that litigation. 16 Third, evidence regarding that lawsuit goes to her 17 reputational damages. Again, your Honor, I refer to the 18 federal evidence treatise relied on by plaintiff. In 19 defamation cases, defendants can also prove other liables and 20 rumors about the claimant are circulating, at least if they are 21 widespread, to demonstrate it is not what the defendant said 22 about the plaintiff that caused her reputation to suffer but 23 what others said. 24 Your Honor has read the 702 pleadings. Plaintiff's 25 experts have pulled off the internet all kinds of stories that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 H3VOGIU1 1 relate to plaintiff and said that those stories are evidence of 2 her damaged reputation. When you look at the stories that 3 actually were pulled off the internet, a substantial number of 4 them relate to the Cassell-Edwards-Dershowitz litigation; what 5 happened in the litigation, statements made by the parties in 6 the litigation, statements made about Virginia Giuffre relevant 7 to that litigation. 8 If her reputation is damaged by some other litigation 9 that has nothing to do with Ms. Maxwell, Ms. Maxwell can't be 10 responsible for that reputational damage. 11 THE COURT: What's your explanation of the damage 12 caused to Giuffre by the Dershowitz case? 13 MS. MENNINGER: I'm sorry? 14 THE COURT: I understand the testimony part. That's a 15 different kind of thing. But the case itself, how does that 16 damage her reputation? 17 MS. MENNINGER: It's the press attendant to that case, 18 your Honor. 19 THE COURT: Okay. So the press attendant. 20 MS. MENNINGER: There was a lot of press attendant to 21 that case which was, frankly, negative to the plaintiff that 22 had nothing do with Ms. Maxwell's denial. And their experts 23 have relied on that press and claimed that that press somehow 24 supports their claim for damages against Ms. Maxwell, even 25 though she's not mentioned in the particular stories. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 H3VOGIU1 1 THE COURT: But how is that going to figure into 2 damages in our case? 3 MS. MENNINGER: Your Honor, I think the jury would be 4 instructed here not to hold Ms. Maxwell responsible for any 5 harm to plaintiff's reputation caused by third parties or 6 alternate sources, including stories that were generated by 7 statements made by her own counsel, by Alan Dershowitz, by 8 Prince Andrew, by anyone else. 9 THE COURT: Well, yes. But what I'm trying to figure 10 out, what about that case was damaging to Giuffre? 11 MS. MENNINGER: I can't tell you that, your Honor. 12 It's actually plaintiffs who are asking for $1.9 million in 13 reputational cleanup costs, and when you ask them what 14 reputational cleanup costs are you trying to clean up, they 15 point to stories having to do with the Dershowitz litigation. 16 They say her reputation was damaged by that litigation and by 17 the stories related to it, and they want to push all of those 18 stories down on the internet searches. Not stories that relate 19 to Ms. Maxwell, stories that relate to her litigation with -- 20 her lawyer's litigation with Alan Dershowitz. 21 THE COURT: Okay. 22 MS. MENNINGER: I don't think that evidence should 23 come in because I don't think it's based on science, but I 24 realize that's not for today. 25 Likewise, your Honor, her failure to sue Alan SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 H3VOGIU1 1 Dershowitz, although he's gone on all of these other shows and 2 called her a liar after she said she had sex with him seven 3 times, goes to her failure to mitigate any of her damages. 4 Finally, your Honor, there is, as you heard from 5 Mr. Cassell, talking about Cassell lawsuit, a statement issued 6 that that lawsuit was a mistake. Whether her attorneys have 7 made representations, they did so while they were representing 8 plaintiff. This was while Mr. Cassell and Mr. Edwards were 9 both pursuing their own lawsuit and also representing plaintiff 10 in this case. So any statements that they issued that are 11 within the scope of their agency, your Honor, are 12 representations, frankly, made by plaintiff. 13 With regard to the Judge Marra order, motion in limine 14 19, your Honor, plaintiff would like to make a lot of arguments 15 now. She's already litigated those points. She lost. She's 16 collaterally estopped from reraising them. And it would be 17 seriously misleading, your Honor, to admit the joinder motion 18 and not inform the jury that a judge found that the allegations 19 contained in that joinder motion were impertinent. 20 Motion in limine 20, Rebecca Boylan. They said she's 21 not been deposed. She was a disclosed witness. They said 22 she's not going to be a witness. Well, we'll see. Your Honor, 23 I don't think this is the appropriate time to raise this issue. 24 It's not an appropriate motion in limine. I know what the 25 rules of evidence are with regard to hearsay and double SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 H3VOGIU1 1 hearsay. 2 That's also true, your Honor, largely with respect to 3 the rest of the motions. They are asking for an advisory 4 opinion from this Court about things that may or may not 5 happen. Your Honor, I just don't see the need to waste more 6 time on it. 7 There is only one issue, the one raised in 28 where we 8 have presented the possibility that as the party that bears the 9 burden of proof, we would be allowed during closing arguments, 10 for example, to comment on the lack of proof, which is a common 11 closing argument. 12 If they have control over a party and that party 13 doesn't come and testify, we may, under the appropriate 14 circumstances and with the right foundation, ask for a missing 15 witness instruction, your Honor, but these are all advisory 16 questions at this point. 17 MS. McCAWLEY: Your Honor, Sigrid McCawley on behalf 18 of the plaintiff. Would the Court like to take a break at this 19 point? I know we've gone for a couple hours. I'm not sure how 20 you'd like to proceed. We're happy to address -- 21 THE COURT: Let's finish. 22 MS. McCAWLEY: Let's finish. Okay, great. Thank you. 23 MR. CASSELL: Paul Cassell, your Honor, for 24 Ms. Giuffre. 25 The defense started with an overview of Rule 405(b), SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 H3VOGIU1 1 so let meet respond to that overview. 2 They reference Mueller and Kirkpatrick, a treatise 3 that we think is very instructive on this particular point. 4 Mueller and Kirkpatrick says, "It is true that in a 5 defamation case there is more latitude to introducing 6 reputational types of evidence. However, it's important to 7 remember, say Mueller and Kirkpatrick, that actual character is 8 not so much the question as reputation." 9 And it follows that "specific instances of misconduct 10 cannot be proved if they were not generally known because then 11 they would not affect reputation." 12 They go on to say that, "When a defendant's proof goes 13 to specific instances under 405(b), caution from the judge is 14 in order. Proving misbehavior can, in effect, become a game of 15 character assassination that adds insult to injury which courts 16 can block by carefully considering relevancy issues and the 17 rule against unfair prejudice found in Rule 403." And so it is 18 against that backdrop that the Court should be considering 19 these 405 issues. 20 What I would like to do is offer three illustrations 21 of what I think is going to be a pervasive flaw in many of the 22 arguments advanced by the defense. 23 So we heard that, "Your Honor, look under 405(b). The 24 fact that the mother -- plaintiff's mother described her as a 25 liar about using drugs and running away from home, that comes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 H3VOGIU1 1 in to show reputation." Let me explain why I believe that 2 argument is fundamentally flawed, and that will, of course, 3 carry over to other illustrations, as well. 4 The statement to which defense counsel was referring 5 was a statement that Ms. Giuffre's mother made during a 6 deposition as a witness in this case where the only people in 7 the room were the court reporter and the attorneys. The fact 8 that when asked, "What did you think of your daughter 17 years 9 ago? Well, I thought at the time that she was a liar," wasn't 10 something that goes to Ms. Giuffre's reputation because there's 11 no evidence anybody knew about it other than, you know, the 12 mother who is now being deposed in 2016. 13 Moreover, the question was, "What did you think about 14 the fact that your then 17-year-old child was running away from 15 school? Well, I thought she was lying to me about that." That 16 would go, I guess, to her reputation back in, what, 1999, 2000, 17 2001, that time period, but of course the damages that are at 18 issue in this case are damages around 2016 and thereabouts when 19 the defamatory statement is released. 20 So it's hard to see even an argument for the statement 21 of the mom in a deposition going to reputation. I don't know, 22 maybe I'm missing something, maybe there's some marginal 23 relevance that can be distilled out of all of that. But of 24 course then your Honor has to weigh whatever marginal value 25 that has as to reputational issues against the very significant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 H3VOGIU1 1 prejudicial effect. 2 Obviously, this is going to be considered by the jury 3 to think she's a bad kid. They're not going to like 4 Ms. Giuffre, and they're going to hold it against her, not 5 because it has some technical reputational aspect to it, but 6 because it is something that shows she's a bad person. Under 7 403, the evidence should be excluded. 8 Let me give you a second illustration of reputational 9 points. They say, "Ah-ha, look. Ms. Giuffre went to 10 Dr. Kliman," and I believe your Honor referred to that as well. 11 And your Honor asked, I think, a very good question, and let me 12 see if I can answer that question. 13 You said, "Well, why did she disclose all this stuff 14 to Dr. Kliman?" Well, the answer is obvious, she was under 15 instructions from the doctor to tell everything that happened, 16 and of course she told, to the best of her ability, everything 17 that happened. Some of the stuff is going to turn out in a 18 court of law to be relevant, some of this stuff in a court of 19 law is going to turn out to be irrelevant. But that's not the 20 psychiatrist's job to say, 'No, no, no, don't talk about 21 illegal drug use because the prejudicial effect outweighs the 22 probative value,' he just gets a full medical history. And 23 having collected all that information, you know, through 24 Dr. Kliman, or they also have Dr. Miller who did a similar sort 25 of thing. Now once you have all of this vast array of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 H3VOGIU1 1 information, then the lawyers present arguments to your Honor 2 and say, 'Wait a minute. Some of the things that are in the 3 report aren't relevant to the case and, in fact, are going to 4 be highly prejudicial for the jury.' That's why we're here 5 this morning asking for some of those things to be excluded. 6 For example, there are some references -- I won't 7 belabor the point -- but the references that we're making to 8 some of the illegal drug usage and so forth, that's not 9 something we're trying to deploy affirmatively. The good 10 doctor simply listed all of the information that had been 11 recited as part of his report so that the lawyers and the judge 12 can now make a determination. 13 And the fact that Ms. Giuffre told Dr. Kliman in a 14 confidential psychiatric examination certain things about drug 15 use can't possibly go to her reputation because no one was 16 there who was assessing what kinds of things might be going on. 17 A similar point can be made about tax fraud. We're 18 told, "Well, your Honor, tax fraud goes to her reputation." I 19 suppose that goes to her reputation with some IRS agent who is 20 looking at a return, but it can't possibly go to a general 21 reputation that is at issue in this case. 22 And once again, the cases that we cite in our briefs I 23 think make this point clear, there is a vast risk of 24 prejudicial effect to Ms. Giuffre because the jury is going to 25 think, oh, she's a tax cheat, and they're going to hold that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 H3VOGIU1 1 against her because they don't like her actions in that 2 particular circumstance as opposed to the merits of the case. 3 And by the way, we are going to strongly contest that 4 she's a tax cheat, so your Honor is going to have, I guess, 5 competing tax information, and jury instructions on whether 6 personal injury returns have to be reported on your return, all 7 of which is going to deflect the jury's time and attention, not 8 to mention the Court's and counsel's, away from the fundamental 9 issue of did Ms. Maxwell defame Ms. Giuffre. So that's our 10 response to the initial overview regarding 405, and I'm going 11 to turn the time over to my colleague now to dive into some 12 specifics. 13 MS. McCAWLEY: Thank you, your Honor. I'm going try 14 to keep this very brief and just touch on some of the 15 highlights quickly. 16 So we were talking initially at the beginning about 17 the issue of various pieces of different witnesses, whether 18 their information would come in, and we hit on the issue -- 19 they brought up the issue of Mr. Freeh, and actually gave 20 you -- told you that he was going to be just somebody who was 21 going to sit on the stand and validate the FOIA response. 22 Well, very clear from the documents they've produced 23 in this case, if I could hand them up, your Honor, this is the 24 pages that they produced with respect to Mr. Freeh. And you'll 25 see on the first page, he gives his conclusion and he says, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 H3VOGIU1 1 "Based on my experience, knowledge, and duties of these 2 protocols in the USS Protective Details of Special Agents, a 3 company escorting Mr. Clinton" -- so he is relying on his 4 expertise as a former FBI head in order to opine on whether or 5 not these records are correct, your Honor. 6 They disclosed him as a lay witness in this case, not 7 an as an expert witness. We went through a series -- as you 8 know your Honor, you've seen all the expert depositions in this 9 case that we've had. They say, "Well, you could have deposed 10 him as a lay witness." 11 Your Honor, will remember, we were very limited. We 12 were limited to ten depos. We had to beg, borrow, and steal to 13 get a few more, and we had to be very careful in who we picked 14 and chose with respect to establishing our claims. If we had 15 known, of course, that Mr. Freeh was going to be put on the 16 stand as an expert in this case, we, of course, would have 17 sought his deposition through the expert process. 18 So, your Honor, I think those documents speak for 19 themselves. They're very clear, that's GMOO526, where he's 20 giving that clear opinion. The letter is sent to 21 Mr. Dershowitz and he signs it, and then it has the relevant 22 attachments. So, your Honor, we firmly believe that that 23 should be kept out of evidence because he was not disclosed 24 properly as an expert in this case. 25 The other thing I want to point your attention to is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 H3VOGIU1 1 another document that they gave you, and I think this document 2 is really telling for what it doesn't say, and that's the email 3 traffic. 4 Right after -- a few days after she makes the 5 defamatory statement, she's conversing with Alan Dershowitz 6 about this statement. And this is GM0006 through 00015. 7 What's really interesting about this is nowhere in 8 this statement does she say, 'I didn't participate in this 9 abuse. I didn't know this person. I wasn't around. This 10 didn't happen with JE.' Instead, she picks statements and says 11 things like -- which sound like a jealous girlfriend -- she 12 says, "I called Jeffrey and told him I've fallen madly in love, 13 Virginia says. I was hoping he'd be delighted, but he said, 14 "Have a nice life" and hung up on me." And she puts in parens 15 to Mr. Dershowitz, "Did she want Jeffrey to say no, don't do 16 it, I want to marry you?" 17 Clearly, she knows -- while during her deposition she 18 claimed to not recollect my client whatsoever, she clearly 19 knows her and this shows that they were together. 20 It's also interesting, if you look on page 0008, 21 because she's putting in parens individuals, other people that 22 my client was lent out to that they forgot to mention in the 23 list that they give. I mean, what's really telling about this 24 document is what it doesn't say, but it clearly shows she knew 25 my client, she knew what was occurring, and she's simply trying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 H3VOGIU1 1 to pick apart nuances in the statement. So, your Honor, I 2 submit that to you for what it doesn't say from Ms. Maxwell 3 since they've provided that to you today. 4 There are a few more things that I just want to touch 5 on that I think need to be clarified, and that is, with respect 6 to -- there was this mention about newspaper articles, and as 7 you know we've submitted an expert who analyzed through his web 8 analytics, he's the same expert that was in the Anders case who 9 followed that video of the Fox reporter over the internet and 10 tracked that he uses a well-accepted methodology. We've set 11 that forth all in our papers. 12 But he tracked the specific quoted statements, your 13 Honor. And if they have an issue, if they want to say, oh, 14 they're proposing today that these articles related to the 15 Dershowitz matter, that's subject for cross examination of him 16 if they want, but he has a very clear methodology, and those 17 articles that he tracked were in that manner, your Honor, so I 18 just want to make that point since they raised it. I know 19 we're not discussing the experts in detail today, but I did ask 20 that question. 21 So your Honor, in just summarizing on those points, I 22 think we made clear in our opening argument why we believe that 23 this shouldn't be subject to a number of mini trials on a 24 variety of these issues, we're hoping to streamline this 25 matter, and that's why we proposed this motion in limine to you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 H3VOGIU1 1 in the way that we did. 2 I'm just going to let my counsel address any final 3 issues. 4 MS. SCHULTZ: Your Honor, I don't have anything 5 further to say on motion in limine number 6. The defendant has 6 not given any valid reason or justification for introducing any 7 evidence of prior sexual assault that should be excluded for 8 all the reasons in the brief and the oral argument over these 9 two days. 10 With regard to drugs, there are voluminous medical 11 records presented here. Defendant's counsel has stood up and 12 said there are false statements to doctors and have suggested 13 that Ms. Giuffre is doctor shopping. I'll submit that the 14 records do not reflect that. 15 Defendant apparently seeks to introduce a jotted down 16 note here or there from medical records, but these are plainly 17 hearsay, and a sentence fragment in the middle of a medical 18 chart is not admissible evidence, it's hearsay. And then, 19 they're certainly not a party admission, they don't even 20 reflect the totality of what the conversation is between 21 patient and doctor. 22 Also, I would also submit that the prescription 23 records show that they are not doctor shopping to a mass 24 amounts of pills or medication. The prescription records speak 25 for themselves. You can count the number of pills that were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 H3VOGIU1 1 prescribed over a period of time, and you'll understand that 2 this is not a situation of someone being a drugee and doctor 3 shopping, something that's in the news a lot these days. So 4 trying to submit it that way is not only irrelevant to this 5 case, but the prejudice greatly outweighs whatever probative 6 value it might be. Ms. Giuffre would not, of course, object to 7 testifying with regard to what current medication she takes, 8 but that's a different subject altogether. 9 With regard to criminal history, as I mentioned, 10 Ms. Giuffre denied that she stole the money. She said her 11 boyfriend took the money while he was there with her. And 12 defense counsel reminded Court that this victim is a thief. 13 Again, none of this information comes in under the Federal 14 Rules of Evidence. Even the charging document and the warrant 15 are classic hearsay and should be excluded. 16 With regard to the next one, I'm going to skip ahead 17 to school records. The records don't show that she was in 18 school, as much as defendant seems to think she is. They don't 19 have also what days she attended and what days she doesn't. It 20 doesn't say that she was there on, for example, May 23rd, 2000. 21 What they do show is that there are no courses taken between 22 1999 and the 2000 school year, and no courses taken during the 23 2000 to 2001 school years. 24 Ms. Giuffer's attempt to work and resume school at 25 another school as as a tenth grader in the 2001 to 2002 school SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 H3VOGIU1 1 year was limited to a portion of the school year starting 2 October 20th, 2001, ending only in March 7th, 2002, which only 3 further substantiates Ms. Giuffre's testimony that at one point 4 she attempted to get away from defendant's abuse, along with -- 5 and Mr. Figueroa testified to the same. 6 So again, I would also reiterate that her reputation 7 as a child for being a truant or a runaway is not what is at 8 issue in this case. She is a 30-something-year-old woman and 9 did not have a reputation related to her school attendance. 10 There is also in this case zero evidence of her 11 not-for-profit being a tax fraud. It's not funded and it's in 12 compliance with United States tax rules. 13 Additionally, Ms. Giuffre has produced volumes of 14 papers of tax returns filed with the Australian government, the 15 country where she has predominantly resided since she was 19 16 years old. And that's all I'm going to say for that, to keep 17 it brief. 18 MR. CASSELL: Your Honor, I'm just going to address 19 all of the points that -- I'll just take very few minutes here, 20 with your permission. 21 So on point number 7 that I addressed, the issue of 22 slut, it seems like we're in agreement that that should be a 23 term that's not used. 24 The debate was over the term "prostitute". Again, Dr. 25 Esplin, their own expert, you can see in the 702 motions, he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 H3VOGIU1 1 concluded that was an inappropriate word. 2 The only -- let me be clear. If there's some document 3 that has the word "prostitute" in it, we're not suggesting that 4 then it would be -- if that document is in evidence and the use 5 of that word is appropriate and admissible and relevant, we're 6 not saying that that has to be redacted. But the only example 7 they gave is there's some comments in some internet chat room 8 somewhere, we're not sure exactly how they're going to 9 authenticate those, there's no evidence Ms. Giuffre has heard 10 of those, so as you say, we can take that up at the time. But 11 we would ask that defense counsel be instructed, and their 12 witnesses be instructed, not to use that term unless it appears 13 in a particular document. 14 With regard to item 14, this is the domestic violence 15 issue. And they say, look, it has relevance because it shows 16 an alternative cause of emotional distress damages. 17 Our position is primarily based on Rule 403. We 18 conceded, I think, that there's some arguable chain of 19 relevance that perhaps could be teased out here, but let's 20 understand, this domestic violence incident took place in 21 March, 2015, and the statement at issue that caused the 22 worldwide reputational damages was launched in January of 2015. 23 So the relevance here is marginal, and ultimately the 24 question your Honor has to, of course, sort out is the 25 prejudicial effect. There wasn't any response that I heard SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 H3VOGIU1 1 from defense counsel about a blame the victim mindset that the 2 jury would very well adopt once they heard that Ms. Giuffre's 3 staying with her husband is a victim of domestic violence. So 4 your Honor has in front of it, I think, essentially uncontested 5 evidence, or at least uncontested argument of substantial 6 prejudicial effect that will exist that tips decisively in 7 favor of excluding this, particularly when they get to subjects 8 like criminal proceedings. We're going to then get into what 9 is the scope of the protective order if they live in Australia 10 and things like that. That's far afield from any effect on 11 emotional distress damages. 12 Item 15 has to do the 17-year-old, 16-year-old, 13 15-year-old. I think we have agreement from both sides that 14 sex with a 17-year-old is unlawful under the age of consent 15 statute that exists in Florida, and we'll be asking either to 16 cover that through an expert witness or through a jury 17 instruction. But they say, oh, what if she's flown to New 18 Mexico? The age of consent there might be different. And this 19 is where I believe your Honor can take a close look at the 20 expert witness on sex trafficking, the 702 motion is currently 21 pending in front of you, Professor Terry Conan, who is at the 22 Florida State Trafficking Institute, and we've offered him as 23 an expert witness. 24 If you take a 17-year-old from Florida, fly her to New 25 Mexico for sexual purposes, it makes no difference what the age SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 H3VOGIU1 1 of consent is at that point because you have a federal sex 2 trafficking crime that has been committed. 3 The same thing is true if you fly a 17-year-old into 4 London, or if you fly her into New York. All of those are sex 5 trafficking crimes, and Professor Conan is prepared to explain 6 both that particular aspect, I would describe it as a mixed 7 question of fact and law, and also some of the psychological 8 techniques that are used to create the -- I think he refers to 9 them as the invisible chains of sex traffickers. 10 So we either have a crime in Florida, because she's 11 under the age of consent, or we have a federal or, in all 12 likelihood, state trafficking offense if she's flown to another 13 state. 14 Which regard to item 18, the Cassell and Edwards 15 litigation, I think your Honor asked some excellent questions 16 on that. 17 We were told that there are five reasons why 18 Ms. Giuffre's connection to that case has some relevance. The 19 first argument, I guess, is their strongest argument, was that, 20 well, she was a witness in that case. But, of course, that was 21 a confidential deposition, so it couldn't have anything to do 22 with reputational damages or something else. 23 Let me be clear. Ms. Giuffre made statements when she 24 was deposed, and if they say, ah-hah, you've said X from the 25 witness stand, but last year when you were deposed you said not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 H3VOGIU1 1 X, fair enough, cross examine her about it, inconsistent 2 statement. We're not objecting to that aspect of that. 3 What we don't want is the lawsuit itself and the 4 circumstances surrounding the lawsuit to be paraded in front of 5 jury. If they simply want to put in a deposition statement to 6 stay it's inconsistent, and that's properly done, of course, 7 that would be appropriate. 8 Their second point is, she participated for a period 9 of time. I guess she participated if you're subpoenaed as a 10 witness and testified, but that wasn't -- you know, she wasn't 11 a party to the case. 12 Their third point was that the reputational damages 13 somehow link into what Dershowitz was saying. Again, your 14 Honor already knows our point one is to keep out Mr. Dershowitz 15 from the case, and you'll make a ruling one way or the other on 16 it. If he's kept out of the case then this becomes a moot 17 point. But even if you decide he's in the case, well, okay, 18 fine. Have him testify and do whatever else you think is 19 appropriate. We don't need to hear all about this unrelated 20 lawsuit. 21 Their fourth point had to do with, I believe, you 22 know, damages suffered by Ms. Giuffre. Your question was, if 23 I'm -- I don't have the transcript in front of me -- I think 24 you said, well, how does the case itself go to damages? And I 25 believe this is a direct quote from Ms. Menninger. "I can't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 H3VOGIU1 1 tell you that." So even the defense counsel when given an 2 opportunity to articulate the relevance failed to do so, in our 3 view. 4 She says -- then her next argument is, well, the 5 plaintiff's experts are using Dershowitz's statements. As you 6 know from the 702 pleadings, no, we're using Maxwell's 7 statements. We're only going to be proving a case about what 8 Maxwell's defamation did to Ms. Giuffre. 9 And then the last argument was that there was a 10 failure to mitigate damages by suing Dershowitz. Well, your 11 Honor knows, if a person A commits a defamation, you sue A and 12 you get your damages. Then if person B does something, you 13 sort that out in a separate proceeding in a separate way. 14 Sacks and others are very instructive on that. 15 The last point they made was that, well, look, these 16 statements were going on while Cassell and Edwards were 17 representing her. They've shown simultaneity in time, but not 18 simultaneity in the scope. 19 It is true that the lawsuit was settled, and I won't 20 refer to myself in the third person. Mr. Edwards and I settled 21 the lawsuit and made certain statements in connection with 22 that, but that was to take care of our own professional 23 reputation and the lawsuit associated with that, it had nothing 24 to do with representing Ms. Giuffre. 25 I believe I have two left, your Honor, and you've been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 H3VOGIU1 1 extremely patient. Let me just take two more minutes to cover 2 point 19. This is Judge Marra's ruling. 3 They say we want to put it in that she lost. Well, in 4 our view, actually, that was a victory. Our goal was to try to 5 get her into the case, and Judge Marra ruled that she could 6 participate by being a witness. 7 Now, are we really going to try the implications of 8 Judge Marra's ruling in a pro bono Crime Victims Rights Act 9 organization ruling? He ruled on this, but allowed this other 10 thing. It's highly, first, irrelevant, and obviously, highly 11 prejudicial in the sense that it's going to divert the jury's 12 attention away from the facts at hand here. 13 And again, Judge Marra only ruled on the first of nine 14 reasons that we offered for putting those allegations in. He 15 said point 1 doesn't work, the others we'll see how things play 16 out. 17 The litigation is moving forward. I can tell you the 18 government will be responding to our summary judgment motion, I 19 believe on May 15th. We'll be replying on July 15th, so the 20 litigation continues. 21 The last point that I'll make is Boylan. This is item 22 20. Remember, Dershowitz is going to say that Boylan says that 23 Ms. Giuffre said certain things. And we were told that, well, 24 maybe she will be a witness. 25 It's my understanding that Boylan is not on the final SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 H3VOGIU1 1 pretrial witness list. Maybe during a break I can confirm 2 that. But if she's not on the witness list, we've got double 3 hearsay and it can't come in. 4 The last point I would leave you with, your Honor, is 5 many of these issues are going to come down to balancing. 6 They're of minimal relevance for the reasons we've explained, 7 very significant prejudice, and we would ask that each of the 8 motions in limine we've asked today be granted. 9 THE COURT: Thank you. We'll resume at 1:30, and I 10 guess, unless you all think it's been covered, the Maxwell 11 motions. What do you think? 12 MR. PAGLIUCA: Your Honor, I would -- 13 THE COURT: Would you rather catch your plane? 14 MR. PAGLIUCA: No. I'm prepared to stay until 15 tomorrow, your Honor. I'm not leaving until tomorrow morning, 16 just in case you need me this afternoon. I'm sure you're 17 thrilled about that. 18 I think, your Honor, when I went through these, it 19 seems to me that we have dealt with number 679, 716, in 20 connection with 683, 742, and 774. That deals with the 21 Rodriguez, we call it the unauthenticated hearsay document from 22 a suspect source. They call it the black book. I think the 23 Court heard argument about all of that and, in my view, this 24 does not all need to be repeated today. 25 Yesterday, we talked about the -- I can't remember the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 H3VOGIU1 1 name of it, but it was the plaintiff's motion, sort of omnibus 2 related to different acts either under 404(b) or 415. 3 The plaintiff wanted until 15 days before trial to 4 make whatever showing they wanted. It would make sense -- 5 well, in defendant's 404(b) motion, there are some of those 6 issues, as well. We certainly could argue part of that. The 7 Court may want to defer that to the entirety of when we have 8 whatever the supplement is to that motion yesterday. 9 Then we also, I believe, dealt with yesterday the 10 issue related to the Jane Doe 102 complaint. We have a 11 competing motion on that. That's 663. It seems to me that was 12 argued yesterday, and we don't need to repeat those arguments, 13 which is the same argument we had yesterday. 14 So in my view, your Honor, that leaves the bifurcated 15 trial motion, which has been fully briefed, the Kellen and 16 Marcinkova issue, and the police report issue. So by my count, 17 we have those three. 18 I also have on my calendar that our motion to 19 preclude -- or the plaintiff's motion to preclude calling 20 attorneys as witnesses, which is 685 and 772, and by my 21 calendaring the reply was due yesterday. I think Ms. McCawley 22 has a different version of that, and so frankly, I don't care 23 whether we hear that today or some other time. 24 So that's my accounting of what we have ripe for 25 argument today, or shouldn't have argument today, as the case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 90 H3v1giu2 1 may be, your Honor. 2 (Discussion held off the record) 3 THE COURT: We'll resume at 1:30. 4 (Luncheon recess) 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 H3v1giu2 1 AFTERNOON SESSION 2 1:30 p.m. 3 THE COURT: Who's up? I think the defense? 4 MR. PAGLIUCA: Yes, your Honor. I think Ms. Schultz 5 requested that we take up No. 666 at this point, which we're 6 happy to do. 7 THE COURT: Oh, yes. Yes. 8 MS. MENNINGER: Your Honor, this motion relates to our 9 request that we exclude evidence barred as a consequence of 10 plaintiff's summary judgment concessions. We asked in argument 11 4 of our summary judgment motion for partial summary judgment 12 with respect to the oral statement on January 4th to a 13 reporter. 14 THE COURT: Hold the phone. 15 MS. MENNINGER: Sure. 16 THE COURT: Sorry. Needless to say, I'm drowning. 17 Ah, okay. Okay. Sorry. Yes. 18 MS. MENNINGER: We asked for partial summary judgment 19 with respect to our client's statement on a New York street 20 that, "I am referring to the statement that we made." As we 21 set forth in our summary judgment brief, this Court's ruling in 22 Adelson v. Harris is directly on point, that a mere reference 23 to another writing that contains defamatory statements does not 24 constitute an actionable repetition or republication. In that 25 case, in Adelson, there was, first, an allegedly defamatory SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 92 H3v1giu2 1 statement and later a press release which said, we stand by 2 everything we said. It's directly on point. Your Honor there 3 held that such republication is not actionable. We set forth 4 that clearly in our argument 4 of the summary judgment motion, 5 and plaintiff, in her response to summary judgment, made 6 absolutely no reference, no response, nothing with respect to 7 that argument. We, therefore, believe that she has conceded 8 the point and we would ask that no evidence regarding that 9 statement be entered in the trial. 10 We predicted, and we were correct, that having not 11 argued it in response to our summary judgment motion, they 12 would try to use the opportunity of their response to this 13 motion in limine to make substantive arguments. They should 14 not be permitted to do so, your Honor. In any event, their 15 arguments that they have set forth in response -- 16 THE COURT: I'm a little lost. Perhaps totally lost. 17 But the partial summary judgment, that's not been dealt with, 18 or has it? 19 MS. MENNINGER: It was not part of your Honor's 20 ruling, no. 21 THE COURT: Tell me the context of the summary 22 judgment. 23 MS. MENNINGER: Certainly, your Honor. There were a 24 number of things that we believed plaintiff had conceded 25 because they failed to respond to our requests in our summary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 93 H3v1giu2 1 judgment motion. Your Honor ruled against us on a couple of 2 points, but your Honor was silent with respect to this 3 particular argument, argument No. 4 -- 4 THE COURT: Ah. 5 MS. MENNINGER: -- in your ruling. 6 THE COURT: And that was? 7 MS. MENNINGER: Our plaintiff's statement two days 8 after the -- 9 THE COURT: The one on the street. 10 MS. MENNINGER: Exactly. That in that statement, our 11 client said, we stand by the statement, or, I am referring to 12 the statement that we made. 13 THE COURT: Yes, yes, yes. Okay. I'm just trying to 14 figure it out. So in a very nice, polite way, you're telling 15 me I failed to deal with that motion of yours. 16 MS. MENNINGER: That's correct, your Honor. 17 THE COURT: So it's still out there. 18 MS. MENNINGER: Still out there. There was no 19 response by plaintiff to that argument is our point; that in 20 their response to summary judgment, they didn't mention it at 21 all. 22 THE COURT: Well, that's probably where I missed it. 23 MS. MENNINGER: Exactly. So I think the fact that 24 they failed to respond to it then, as your Honor has held in 25 other cases, has consequences; namely, it's a conceded point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 94 H3v1giu2 1 And so their failure to respond -- 2 THE COURT: What was the point, that that was not 3 another defamation? 4 MS. MENNINGER: Exactly. In the case of Adelson v. 5 Harris, just like in this case, there was one allegedly 6 defamatory statement afterwards. There was a press release 7 issued that stated, we stand by everything we said. Those 8 facts are very similar to ours, where there was a written 9 statement issued and then our client, did she or did she not 10 republish that, is that a separate defamatory event. 11 THE COURT: Okay. Thank you very much. Now, at least 12 in this little small part of this dispute, I know where I am. 13 Okay. Thanks. 14 MS. MENNINGER: And the Adelson case, your Honor, 15 controls and says that referring back to a statement, such as a 16 previous press release, is not actionable, and summary judgment 17 has been granted on such alleged republications. So now, in 18 this motion in limine, is not the time to be dealing with the 19 substantive point that plaintiff basically conceded during 20 summary judgment. 21 Thank you. 22 MS. SCHULTZ: Hi, your Honor. Meredith Schultz, 23 counsel for Ms. Giuffre. 24 This motion in limine has already been decided by this 25 Court's summary judgment order, thereby rendering it moot in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 H3v1giu2 1 its entirety. Accordingly it should be summarily denied as 2 moot. 3 This motion should also be denied because it advances 4 the exact same arguments defendant advanced in her summary 5 judgment motion. She is seeking rehearing on her summary 6 judgment motion, dressed up as a motion in limine. Many courts 7 in this district have summarily denied motions in limine that 8 seek to relitigate arguments from summary judgment, and I have 9 listed six such cases on pages 7 and 8 of our response in 10 opposition. You ordered nine defendant's motions for summary 11 judgment. This Court rejects the argument that she should have 12 partial summary judgment on the January 4th statement. The 13 last sentence of that order states, "Because of the existence 14 of triable issues of material fact rather than opinion and 15 because the prelitigation privilege is inapplicable, the motion 16 for summary judgment is denied." Defendant's reiteration of 17 her defamatory press release confirming it two days later is 18 something that this Court did not rule that that is not 19 actionable. So she's seeking rehearing. 20 Also importantly, your Honor, Ms. Giuffre opposed 21 summary judgment on defendant's defamation in its entirety. 22 She opposed the motion for summary judgment in its entirety, 23 and this statement, as part and parcel of defendant's 24 defamation and part and parcel of defendant's motion for 25 summary judgment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 96 H3v1giu2 1 THE COURT: Well, what do you say about the case 2 that's been cited? 3 MS. SCHULTZ: Well, about Adelson? I would say that 4 it's factually distinguished because here she is two days later 5 reiterating her defamatory statement. And I would also direct 6 you to the case in my brief, Wheelings v. Iacuone. 7 THE COURT: Let me just get the time frame right. 8 MS. SCHULTZ: Sure. 9 THE COURT: The initial statement is January, and when 10 is this? 11 MS. SCHULTZ: So, your Honor, the email that went to 12 the media, it was first issued on January 2, 2015; it was 13 published on January 3, 2015; and the statement took place the 14 next day, on January 4, 2015. 15 THE COURT: Okay. 16 MS. SCHULTZ: A recent opinion in this district, the 17 Wheelings case, makes it clear that you can't reargue summary 18 judgment on a motion in limine and also makes it clear that you 19 can't say, oh, because one person -- 20 THE COURT: The issue is, was the second statement 21 defamatory? 22 MS. SCHULTZ: I think that was an issue at summary 23 judgment that Ms. Giuffre opposed in its entirety, and I think 24 that's already been resolved. 25 THE COURT: How? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 H3v1giu2 1 MS. SCHULTZ: Because it was denied, your Honor. 2 THE COURT: The motion was -- well, okay. 3 MS. SCHULTZ: Your Honor, even assuming, arguendo, 4 that this is not cause of action, it should still be admitted 5 as evidence. This is a motion in limine to exclude it as 6 evidence. 7 THE COURT: All right. Assume for the moment that the 8 case that counsel has given me is accurate, and then why would 9 it get in? What does it add? 10 MS. SCHULTZ: It adds state of mind, defendant's state 11 of mind in issuing -- 12 THE COURT: The state of mind didn't change in two 13 days. 14 MS. SCHULTZ: Right. It says that she stood by her 15 statement and did not retract it. 16 THE COURT: Well, she certainly is standing by it 17 today. 18 MS. SCHULTZ: And your Honor, it shows one other 19 thing. Throughout this litigation defendant has tried to argue 20 that defendant had nothing to do with the defamatory 21 statements. In fact, just yesterday defendant's counsel was 22 saying that it was issued by her lawyer and by her press agent. 23 It's her statement, and in this video she is personally owning 24 it, and she can't hide behind her lawyer or her press agent. 25 THE COURT: Oh, okay, okay, okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 98 H3v1giu2 1 MS. SCHULTZ: So it goes to a material argument that 2 defendants have advanced. 3 THE COURT: So to the extent that becomes an issue, 4 and that's a whole other thing, as to whether she intended the 5 statement, I can see that. 6 Okay. All right. Anything else? 7 MS. SCHULTZ: Yes. I'm just going to say that this is 8 a motion in limine and there are no evidentiary problems with 9 this piece of evidence. This is the defendant herself on 10 camera, this is not hearsay, and there's no Federal Rule of 11 Evidence that should exclude this. 12 THE COURT: Okay. Do you want to add anything? 13 MS. MENNINGER: No, thank you, your Honor. 14 THE COURT: Okay. Thank you. 15 What else? 16 MR. PAGLIUCA: Your Honor, we can take up the 17 bifurcation issue that's presented in 662 and 766, and then 18 there was a reply filed last evening. 19 THE COURT: Yes. 20 MR. PAGLIUCA: Your Honor, I think -- well, I don't 21 think. The law is very clear on this issue in this circuit. 22 There is a -- 23 THE COURT: Well, I think we can shorthand this. 24 MR. PAGLIUCA: Yes. 25 THE COURT: Yes, yes. Maxwell's money doesn't come in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 H3v1giu2 1 on the liability case. That's your position. 2 MR. PAGLIUCA: That is my position, your Honor. 3 THE COURT: I think that's correct. Tell me why 4 that's wrong. 5 MR. CASSELL: All right. Thank you, your Honor. 6 The problem, as usual, is, yeah, her net worth doesn't 7 come in at the liability stage, but I think the defendant is 8 trying to get the camel's nose under the tent and say, oh, if 9 financial issues don't come in, then you can't -- 10 THE COURT: Well, I don't know what financial issues 11 you mean. He's saying no introduction of her finances -- that 12 is, how much money she's got or where it comes from or anything 13 like that comes in. 14 MR. CASSELL: As I understand the motion, it's with 15 reference to her "financial status." 16 THE COURT: Well, I just told you what I think that 17 means. 18 MR. CASSELL: Right. And I think, with the 19 construction that you were just giving, I'm not sure that we're 20 concerned about this, but let me be clear. 21 THE COURT: What would you like to present? 22 MR. CASSELL: There were three or so things we would 23 like to present. If your Honor rules that Ms. Giuffre's tax 24 compliance can go to her credibility, then we would like to be 25 able to reciprocally say, all right, then Ms. Maxwell's tax SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 100 H3v1giu2 1 compliance, if there is questions about that, could be 2 introduced. We think that there shouldn't be tax compliance 3 issues coming in with regard to Ms. Giuffre. They've said, 4 well, that goes to her credibility. What's good for 5 Ms. Giuffre should be good for the defendant. But again, to be 6 clear, we don't want to turn this into a tax trial; we want it 7 to be a defamation trial. But they've made an argument, tax 8 issues are relevant to Ms. Giuffre. Then we would like to have 9 a parallel opportunity then with respect to Ms. Maxwell. 10 The other thing we have, for example, we're alleging 11 there's a organization that is paying girls to give sex to 12 Epstein. And who's making the payments? Well, Ms. Maxwell, 13 among others. We have her on bank records, at the Epstein 14 mansion, where she's in charge of the -- 15 THE COURT: Well, that's different. 16 MR. CASSELL: Yes, and that's exactly -- 17 THE COURT: That's not her financial status. 18 MR. CASSELL: Right. So that's not her financial 19 status. For example, we want to show those kinds of payments. 20 We also want to show more broadly that Ms. Giuffre and the 21 other girls were not coming into a bungalow in the middle of 22 Hoboken or whatever. They were coming into a mansion in one of 23 the most -- 24 THE COURT: Well, that's got nothing to do with her 25 financial status. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 101 H3v1giu2 1 MR. CASSELL: All right. Well, we thought, when we 2 filed our response, they continued to oppose it. If they had 3 just stipulated, you know, I wouldn't be taking your Honor's 4 time. 5 But this is where I think they're taking a narrow 6 uncontested principle, that her net worth doesn't come in, and 7 are going to try to use it to exclude evidence that Ms. Maxwell 8 is making payments to the girls, that this mansion is a very -- 9 THE COURT: Well, okay. I don't think so. 10 MR. CASSELL: Let me just make sure that I have on the 11 table the things that we want to introduce. 12 For example, Mr. Epstein purchased a helicopter for 13 Ms. Maxwell, and they might say, oh, well, that shows financial 14 status or something. We think that shows a very close 15 connection. 16 Well, the last one and perhaps the most controversial 17 one in connection with this case is the townhouse. It is our 18 belief that a -- 19 THE COURT: Well, wait a minute. What's the basis of 20 your belief? 21 MR. CASSELL: The basis for our belief is, I believe 22 they've conceded that there was a sale of a $17 million 23 townhouse in 2016. 24 THE COURT: Okay. Is it the defendant's townhouse? 25 MR. CASSELL: Yes. So the question is -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 102 H3v1giu2 1 THE COURT: So that's part of her net worth. I mean, 2 that's part of the financial part. I don't see how that gets 3 into the liability case. 4 MR. CASSELL: Right. So Epstein was the one who 5 provided the loan to get that -- 6 THE COURT: Says who? 7 MR. CASSELL: Ms. McCawley, who took Maxwell's 8 deposition, is advising me that during Maxwell's deposition, 9 she conceded that. 10 THE COURT: Well, all right. Okay. But that isn't 11 financial information. That's the relationship between Maxwell 12 and Epstein. 13 MR. CASSELL: Right. I think you and I are on the 14 same page. My concern is that we may, as on other issues, may 15 not be on the same page with the defendant. 16 THE COURT: I don't think so, but maybe I'm wrong. 17 MR. CASSELL: There's one other point, if I can just 18 be heard on the townhouse. The townhouse was sold at a time 19 shortly after Ms. Maxwell is discussing with her advisers, hey, 20 I could get sued for libel. We believe that transferring 21 $17 million outside the jurisdiction of your Honor -- 22 THE COURT: Tell me about that after you've got a 23 verdict. 24 MR. CASSELL: All right. But we want to introduce it 25 during the trial to show consciousness of guilt, that she is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 103 H3v1giu2 1 transferring assets away from the jurisdiction of the court 2 because -- 3 THE COURT: She sold the house. 4 MR. CASSELL: Right. After she wrote an email that 5 said, hey, I could get -- 6 THE COURT: You can't argue, I don't think, that 7 that's an admission. 8 MR. CASSELL: We believe it goes to consciousness of 9 guilt, and we've cited a case in our brief to that effect. 10 But I think if you have a difficulty with that small 11 piece of our argument, I mean, I think the rest of it is 12 really, you know, the meat and potatoes here, so -- 13 THE COURT: Okay. Yes. 14 MR. PAGLIUCA: Your Honor, I'm going to not try to 15 belabor this, but I have to respond to some of the points, just 16 so that the record is clear. 17 The language that we proposed to the Court about the 18 financial status comes from the very cases that are in the 19 Second Circuit, and that's the words that the Second Circuit 20 and district courts in the Southern District use. And I quote 21 from Tillery: No evidence as to defendant's financial status 22 may be presented to the jury during the first phase of the 23 trial by either of the parties to this action. And the Second 24 Circuit says that that's the preferred method. Mr. Cassell, I 25 think, knowing that he's losing this battle, then tries to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 104 H3v1giu2 1 change it. 2 But first of all, let's talk about this consciousness 3 of guilt issue. And not only the supposed facts behind this 4 but the law that they cite. There are references to a New York 5 Post article that is the -- 6 THE COURT: Well, that's no good, obviously. 7 MR. PAGLIUCA: Of course. And then there's a 8 reference to Radar Online. That's their entire evidentiary 9 basis for the proffer that they just made to you, your Honor, 10 about this townhome. It doesn't fly. And I don't need to 11 spend -- 12 THE COURT: Well, wait a minute. There was a little 13 bit more. There was Maxwell saying she got a loan, they say, 14 from Epstein to buy the house. 15 MR. PAGLIUCA: What she said, your Honor -- and I 16 wrote it down because I looked at the deposition transcript 17 last night. 18 First of all, I think it's important for this 19 discussion, we allowed questions relating to anything financial 20 with Mr. Epstein. So the one instruction that I gave to 21 Ms. Maxwell during this deposition was, anything they ask you 22 about Epstein is fine. I'm not going to let you talk about 23 your own personal financial information because it's not 24 discoverable at this point. And so they had fair opportunity 25 to ask her questions. They asked her questions about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 105 H3v1giu2 1 townhome, and she said part of it was a loan from Mr. Epstein 2 that had been paid back, and that's going to be years ago, 3 before any of the defamatory allegations arose in this case. 4 That's my understanding of the factual basis here. 5 So we can I think deal with that particular issue, you 6 know, if and when it comes up, but what I'm saying to the 7 Court -- I mean, the Court and I are on the same page -- the 8 sale of the townhome, the amount of the sale of the townhome, 9 you know, what did or didn't happen to the money from the sale 10 of the townhome, those are all off limits during the liability 11 phase of the trial. 12 THE COURT: Well, correct me if I'm wrong. We don't 13 have any evidence as to what happened to the proceeds of the 14 sale. 15 MR. PAGLIUCA: We don't. 16 THE COURT: Oh, okay. 17 MR. PAGLIUCA: There is none. 18 THE COURT: Okay. 19 MR. PAGLIUCA: And the notion that this money went 20 outside of the jurisdiction of the court is pure fiction. 21 Frankly, unless it went to some country that I'm unfamiliar 22 with, I think the jurisdiction of this court extends pretty 23 far. 24 THE COURT: I think that's for another day. 25 MR. PAGLIUCA: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 106 H3v1giu2 1 The last point I want to make, your Honor, on this 2 issue of consciousness of guilt relates to the one case that 3 they cite for the proposition that there is some ability to 4 have a consciousness of guilt theory in a civil case. They 5 cite a Second Circuit criminal case in which the defendant was 6 a man named Amuso. This is at 21 F.3d 1251, and it's a 1994 7 case. Mr. Amuso was a leader in the Lucchese crime family who, 8 over a course of time, ordered 14 murders and then absconded 9 from the jurisdiction during the trial of a number of 10 co-defendants. And it was called "The Windows" case here in 11 New York, and you may remember it, your Honor, because it was 12 the Lucchese crime family that was controlling the replacement 13 window unions in the city of New York. So Mr. Amuso goes to 14 trial, and the government requested and received an instruction 15 to the jury that said not only his flight was consciousness of 16 guilt but the length of the absence of his flight was 17 consciousness of guilt. And in fact, the Second Circuit 18 reversed that instruction and disapproved it in that criminal 19 case but didn't reverse his conviction because the evidence of 20 guilt was overwhelming. So the one case that they cite for 21 this proposition in fact is inapposite to the position that 22 they're taking here today. 23 So I think your Honor and I are indeed on the same 24 page here, and I'd ask that the Court simply apply the law in 25 Tillery. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 107 H3v1giu2 1 Oh, Ms. Menninger reminds me, your Honor -- and I 2 think the Court and I are on the same page on this as well -- 3 the tax argument made by Mr. Cassell. Indeed, Ms. Maxwell and 4 the plaintiff are not on the same footing in this case with 5 regard to who put their reputation at issue, who is claiming 6 emotional distress damages, and plaintiffs are in a much 7 different position than defendants when it comes to 8 cross-examinations about these issues, particularly in 9 defamation cases, because as Ms. Menninger pointed out earlier, 10 under Rule 405, everything that impacts the plaintiff's 11 reputation in the community, including the failure to follow 12 laws, is the subject of cross-examination. So the argument 13 that what is good for the goose is good for the gander in a 14 defamation case simply doesn't apply when you're talking about 15 damage issues and reputational issues. 16 Thank you, your Honor. 17 MR. CASSELL: Could I just have 15 seconds, your 18 Honor? 19 THE COURT: No. 20 MR. CASSELL: All right. Thanks. 21 THE COURT: Next. 22 MR. PAGLIUCA: Your Honor, we could next take up the 23 issue relating to the police reports which I have as 24 defendant's motion in limine to exclude police reports and 25 other inadmissible hearsay at 677, response at 747, and then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 108 H3v1giu2 1 reply was also filed yesterday. 2 THE COURT: Okay. Yes. 3 MR. PAGLIUCA: Your Honor, these reports, that are 4 loosely described as police reports, encompass a one-year 5 purported investigation by the Palm Beach Police Department 6 into the affairs of Mr. Epstein roughly beginning I think in 7 2005 and going through 2006. The detective initially assigned 8 to the case was a woman named Michelle Pagan, and then 9 Detective Recarey took over the investigation from Ms. Pagan. 10 There were a number of things, according to the reports -- 11 although we don't really have any actual witness testimony, 12 with current knowledge. The police did a number of things. 13 They surveiled Epstein's house, they did trash pulls, and 14 ultimately they executed a search warrant at Mr. Epstein's 15 house. And that's sort of the totality of the investigation. 16 I give you that as the backdrop, your Honor, because 17 then next what seems to happen is very curious, in my 18 experience, and was testified to by Detective Recarey. The 19 police get crossways with the state attorney's office in 20 Florida, and there is a complete distrust between the two 21 agencies. As a result of that -- and there's a bunch of 22 in-fighting that goes on between these two agencies. The 23 police make the decision to, in some fashion, turn over 24 everything that they have to the FBI. And as best I can figure 25 it out, the FBI issued a grand jury subpoena, or the U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 109 H3v1giu2 1 Attorney's Office, in the Southern District of Florida, issued 2 a grand jury subpoena for the entirety of the Palm Beach Police 3 Department's evidence relating to the Epstein investigation. 4 So as we sit here today and indeed for the last ten years since 5 2006, the Palm Beach Police Department has not been the 6 custodian of any of this evidence. 7 And so that's the factual backdrop to then what 8 becomes continuing problems with the types of evidence that I 9 anticipate the plaintiffs are going to try to introduce in this 10 case. The first is these police reports themselves. And that 11 is about 87 or 88 pages of documents, depending on which 12 iteration of these police reports someone is looking at. That 13 essentially runs through the course of the investigation. And 14 I'm sure things that your Honor's seen before, you know, police 15 officer does something, they put it down on a piece of paper, 16 somebody puts it into a system, and then that's where it goes. 17 But the problem here, fundamentally, with these police 18 reports -- 19 THE COURT: Let me back up just a moment. 20 MR. PAGLIUCA: Yes, sir. 21 THE COURT: How are these going to be entered into 22 evidence? They're not self authenticating. 23 MR. PAGLIUCA: They're not. 24 THE COURT: So how are they going to be presented? 25 MR. PAGLIUCA: Good question, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 110 H3v1giu2 1 MS. McCAWLEY: Do you want me to address that, your 2 Honor? I mean, it's our evidence that we're trying to get in. 3 Or do you want me to wait? 4 THE COURT: Well, you don't know. The defense doesn't 5 know. 6 MR. PAGLIUCA: There is no way. There is no way to 7 present these documents, your Honor. 8 THE COURT: Yes. Okay. All right. Because there's 9 no DOJ witness listed. 10 MR. PAGLIUCA: There is no record custodian at all for 11 these documents. Detective Recarey in his deposition -- and 12 you have this, the relevant answers to these questions -- 13 acknowledged that they don't have any of this evidence. And so 14 that's going to be, you know -- you have seen, in multiple 15 filings from the plaintiffs, they attach excerpted documents 16 containing what they say are phone messages secured from the 17 trash pulls. So that would be an example of evidence for which 18 there is no record custodian. Frankly, I don't know who the 19 source of any of that information is. This is yet another 20 piece of information that has appeared, I'm presuming through 21 Mr. Edwards getting it somehow, you know, in relation to some 22 other case and then it appears in discovery in this case. And 23 what it looks like is, you know, a number of, you know, what 24 they say are photocopies of message pads from Epstein's trash. 25 But there is no person who will say, this particular piece of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 111 H3v1giu2 1 paper came from Epstein's trash in the first instance. There 2 is no person that will say, we kept these documents and we have 3 the originals and you can come look at them and you can test 4 them and feel them. There is no person that will say any of 5 that because it went to the grand jury and presumably, under 6 Rule 60, it's never coming out of the grand jury again. 7 So the other point about these message pads is, I 8 don't to this day know whether that's just hand-picked portions 9 of whatever plaintiff's counsel got years ago or it's the 10 entirety of what, you know, Palm Beach did or didn't do, but 11 when I asked Detective Recarey those questions in his 12 deposition, he said, I can't tell you if that's everything. I 13 just got handed this stuff by plaintiff's counsel, you know, in 14 the course of this deposition, and that's all I can tell you 15 about it. So that's another piece of this that's problematic