1 H3ulgiva 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 3 4 Plaintiff, 5 v. 6 GHISLAINE MAXWELL, 7 Defendant. 8 9 15 Civ. 7433 (RWS) Oral Argument New York, N.Y. March 31, 2017 12:08 p.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 FARMER, JAFFE, WEISSING, EDWARDS, FISTOS, LEHRMAN, P.L. Attorneys for Plaintiff 20 BY: BRADLEY J. EDWARDS, ESQ. 21 HADDON, MORGAN AND FOREMAN, P.C. Attorneys for Defendant 22 BY: JEFFREY S. PAGLIUCA, ESQ. LAURA A. MENNINGER, ESQ. 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794367

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2 H3ulgiva 1 2 (Case called) 3 THE COURT: We have a problem, folks. By my count -- 4 and of course one can count differently depending on how you 5 treat these matters, but one count I have is that we have 45 6 motions before me. That may not be entirely accurate, but it's 7 not too far off. 8 Here's my suggestion. Well, first of all, I think, 9 though you have shown absolutely no mercy to me, I am prepared 10 to show a little mercy to you. Translated, if you want to, we 11 can schedule this so you can have lunch. On the other hand, if 12 you don't want lunch, that's okay. I can endure. 13 By the way, the Epstein motion will go over to 14 tomorrow because we were told, if I understand it correctly, 15 that they didn't know it was on for today. How that ignorance 16 exists, I don't know, but anyhow, we'll put that over to 17 tomorrow. 18 So what I would suggest is that today -- and today 19 ends, for our joint effort, at 3:30 -- the defendant's motion 20 with respect to the supplemental reports of Jansen and Kliman; 21 the 302 motion; and there are three that seem to me to go 22 together -- the references to the Florida action, the CVRA 23 action; the Epstein plea agreement and nonprosecution, and 24 registration; and the victim notification letter. Seems to me 25 all those present same of the same basic problems, and I'll SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794369

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3 H3ulgiva 1 hear those together. And then the defendant's motion with 2 respect to sexual history and the motion on 3 Maxwell's involvement with Epstein's activities. 4 So that's my thought. We could go say until 1:30 and 5 then break for lunch, resume at 2:30 and go another hour, or go 6 straight through. Why don't you all confer, see what you want 7 to do. And the remainder, we can do tomorrow. We'll start at 8 10:00. Do you all want to confer for a moment and see what you 9 want to do? 10 MS. McCAWLEY: Well, your Honor, on our part, we want 11 to spend as much time getting through this today as we can, so 12 we would prefer not to take a lunch break because there are so 13 many things we need to get through, we'd want to try to utilize 14 as much of your time as we can. 15 THE COURT: Okay. No lunch. Go. Defendant's motion 16 with respect to the supplemental reports. 17 MS. McCAWLEY: Your Honor, could I just have one point 18 of clarification. I'm sorry. With respect to plaintiff's 19 omnibus motion, we were planning to argue that today. That has 20 several subparts. 21 THE COURT: Well, why don't we leave that for 22 tomorrow. 23 MS. MENNINGER: Your Honor, I would like to leave it 24 for tomorrow. There was a 60-page reply that was served on 25 Monday night and so if we could just have until tomorrow on SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794371

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4 H3ulgiva 1 that, I would appreciate it. 2 There was a 60-page reply filed on that motion on 3 Monday night. 4 THE COURT: Does that surprise you? Doesn't surprise 5 me. 6 MS. MENNINGER: No. It doesn't. 7 THE COURT: Well, okay. 8 MS. MENNINGER: But if we could do it tomorrow, I'd 9 appreciate it. 10 THE COURT: Well, I was planning to, wasn't I? Yes. 11 MS. MENNINGER: I agree with your Honor. 12 THE COURT: Yes. Okay. 13 MR. PAGLIUCA: Good afternoon again, your Honor. 14 THE COURT: Good afternoon. 15 Yes. 16 MR. PAGLIUCA: Your Honor, with regard to the motion 17 on the late-disclosed supplemental report of Jansen and the 18 video exhibit of Dr. Kliman, first, I'd like to start with 19 Kliman, if I could. 20 Dr. Kliman is a summary witness who has no firsthand 21 knowledge about the facts associated with this case. He's been 22 proffered as an expert in psychiatry. And the majority of his 23 opinions don't really relate to psychiatry; they relate to 24 credibility issues of the plaintiff in this case. Replete 25 through the opinion, original opinion that he offered, are a SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794373

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5 H3ulgiva 1 number of what I deem to be improper vouching. 2 THE COURT: Let's get to the supplemental reports. 3 I've read the papers on the Daubert aspect and I have some 4 familiarity with the report, but let's get to the supplemental. 5 MR. PAGLIUCA: I will, your Honor. And I start there 6 because that is a primary problem with the -- it's not a 7 supplemental report. I mean, what happened was, in terms of 8 the backdrop here -- 9 THE COURT: Let me see if I can shorthand this. What 10 you're complaining about is not the video of but the 11 summary. 12 MR. PAGLIUCA: I'm complaining about both, your Honor. 13 And let me explain why. 14 THE COURT: Okay. Forget about the summary for a 15 moment. You didn't get the video at the time the report was 16 filed. You got the report, I think it was September, whenever 17 it was. You didn't get the video, but you did get it before 18 the deposition. 19 MR. PAGLIUCA: Here's the distinction I need the Court 20 to understand. What we got after the report was filed was 21 approximately four hours of video conducted over a two-day time 22 frame. So there's a large portion of video conducted over a 23 two-day time frame. When I arrived at Dr. Kliman's office on 24 November 17th, I believe it was -- 25 THE COURT: Well, you were in San Francisco, so what's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794375

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6 H3ulgiva 1 wrong with that? 2 MR. PAGLIUCA: I love San Francisco, if I could 3 actually spend some time there, but going from an airport to a 4 hotel and Dr. Kliman's office was not my idea of a good time. 5 So we get there, and I get a 15-megabyte flash drive, 6 which has a lot of things on it, including something I've never 7 seen before. 8 THE COURT: By the way, so was that as a result of a 9 request of yours? 10 MR. PAGLIUCA: Yes. 11 THE COURT: Oh. 12 MR. PAGLIUCA: Yes. We had requested, and in fact 13 issued a subpoena, for all of Dr. Kliman's materials, and, you 14 know, I don't mind things coming in a little bit late in these 15 regards because I can prepare for the deposition. But the 16 problem, your Honor, is, the morning of the deposition, I get 17 this -- 18 THE COURT: No. I know. 19 MR. PAGLIUCA: Okay. And it is not simply a -- 20 THE COURT: I understand. You got it right just 21 before. 22 MR. PAGLIUCA: But your Honor, this is not clear in 23 the papers, and indulge me, please, for one moment. The video 24 that I get when I get there is a professionally edited video, 25 and it takes different segments of what I was previously SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794377

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7 H3ulgiva 1 provided and it compiles it in, you know, almost a documentary 2 fashion, if you will. And so we have the plaintiff, in 3 different clips, from different days, and different times, 4 saying things -- 5 THE COURT: Of course the other problem is, so that's 6 in September. When was this, late September? 7 MR. PAGLIUCA: No. November 17th. 8 9 THE COURT: November. MR. PAGLIUCA: So the reports are due in September, we 10 get this in -- 11 THE COURT: It would have been nice to have this issue 12 raised then, not now. 13 MR. PAGLIUCA: Well, your Honor, I said to them at the 14 time, you know, I don't believe this is admissible and I don't 15 need to do anything about it. So it's not my -- they're the 16 ones who are not in compliance with the rule, not me. And so 17 if you want to do something about it, I think you need to be 18 prophylactic. 19 THE COURT: Okay. Anything else you want to tell me? 20 MR. PAGLIUCA: Yes, your Honor. Embedded in this 21 edited footage are nine separate statements, advocacy 22 statements by Kliman, such as calling Ms. Maxwell a 23 perpetrator, someone he's never met before, but he feels free 24 to call her a perpetrator in the middle of this videotape. He 25 feels free to opine, you know, in these editorial comments of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794379

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8 H3ulgiva 1 his that 2 THE COURT: That's a whole different issue. Right? 3 MR. PAGLIUCA: Yes. I agree. 4 And finally, your Honor, on this Kliman issue, it 5 seems to me that all of this is -- well, let me back up. Here 6 are the reasons why it's prejudicial, and I don't think we can 7 just say, this is a videotape, so what? I never had the 8 opportunity, because the deadlines expired for experts, to give 9 the edited version to any other expert to analyze the footage, 10 to compare it to the original footage, to see how it was 11 filmed; never had the opportunity to give it to any 12 psychological expert to examine those particular clips and how 13 they were put together. 14 THE COURT: Of course, we could have extended the 15 deadlines if you had wanted. 16 MR. PAGLIUCA: Your Honor, again, I'm not the person 17 who didn't comply with the rule. It's not on me to do that, in 18 my view. 19 THE COURT: Okay. 20 MR. PAGLIUCA: So that's Kliman, your Honor. 21 THE COURT: Okay. 22 MR. PAGLIUCA: Well, and by the way, it's also 23 cumulative testimony. I don't believe that it would be 24 appropriate for the plaintiffs to testify, then have Kliman 25 testify, and then during Kliman's testimony there's this staged SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794381

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9 H3ulgiva 1 presentation in front of Kliman that he gets to then comment 2 on. And so really what we're doing is we're trying to clean up 3 the in-court testimony by an out-of-court statement to this 4 psychologist that he then gets to stop and opine on for the 5 jury during the middle of all of this. That seems to be 6 cumulative. It's also prejudicial, and it also denies my 7 ability to confront and cross-examine a witness who is 8 appearing for the camera and acting. So that's Kliman. 9 Jansen, your Honor, is a true new report. Dr. Jansen 10 issued his report. We then issue a rebuttal report to 11 Dr. Jansen in which our expert points out that Dr. Jansen 12 didn't record any of the data that he purportedly relies on. 13 So right after we issue our rebuttal report, we get new data 14 from Dr. Jansen, and it's curious because the report by Jansen 15 is written on September 9th but the data that we then get, in 16 response to our subpoena, is November 2nd. That's fine. I 17 go take his deposition, and during his deposition I'm asking 18 him questions about, well, you know, how do you come up with 19 this number? And he can't give me an answer, because he 20 doesn't have any of the material that he purportedly relied on 21 to issue the opinion. So I'm feeling pretty good about all 22 this when we leave because I have a guy who issues a report 23 that doesn't have any underlying data to support it and can't 24 explain to me what these different numbers are and where they 25 came from. You know, two weeks later, I get in the mail, or SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794383

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10 H3ulgiva 1 email, a supplemental report that is materially different than 2 the report that I deposed this person on. And, you know, 3 materially how? I mean, they want to say, oh, no, he's just 4 doing ongoing work here. Well, the alleged number of articles 5 has more than doubled in his review. The alleged unique users, 6 which is his phrase for somebody who went on a website 7 somewhere, is more than 10 million more, and the other number, 8 which is the number of publications, has also more than 9 doubled. So, you know, that is patently unfair, your Honor, to 10 have somebody go redo their report after they've been 11 cross-examined and come up with different opinions that I've 12 never been able to depose anyone on. That's the problem. They 13 should live with their opinion if it is admissible at all. 14 MS. SCHULTZ: Your Honor, this is Meredith Schultz for 15 Ms. 16 I'll address the Dr. Kliman report first. And what 17 defendant's briefing and what oral argument didn't make clear 18 is that in advance of the deposition, Dr. Kliman provided 19 defense counsel the entire videotaped interview with Ms. 20 They had all the footage already. 21 THE COURT: Wait. In fairness, in advance of the 22 deposition by ten minutes. 23 MS. SCHULTZ: Sorry, your Honor. No. I think that's 24 a misunderstanding. What they received "ten minutes before" 25 were clips of the video. The entire video was produced well in SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794385

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11 H3ulgiva 1 advance of the deposition. What they're complaining about is 2 that from that entire video certain segments were produced. So 3 they already had that material already. They just didn't have 4 it in a clip form. 5 THE COURT: So you say that the production of the 6 entire video was timely. 7 MS. SCHULTZ: Yes, your Honor. And I would also say 8 that the supplement was timely too. What was on that flash 9 drive, 98 percent of that had already been produced before 10 because they had the full-length video. It did include clips 11 that Dr. Kliman made with subtitles. And then also it had some 12 new billing statements that were more updated that were 13 produced in accordance to Rule 26's requirements to supplement 14 reports. So they had the long-form video ahead of the 15 deposition. The clips of the videos that they already had is 16 what they're complaining about here, and I don't think the 17 briefing makes that clear. 18 With regard to Dr. Jansen, I think there are also some 19 misunderstandings there. The bottom line is that it is very 20 reasonable to get the results that he did in his supplement. 21 And it's based on how search engines index web content. So in 22 the briefing, it says, oh, the supplemental report has articles 23 from before the first report and so it's illegitimate. That's 24 not a correct argument. And I think it's easily confused 25 because of how search engines work. Basically documents that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794387

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12 H3ulgiva 1 are the supplemental report, articles prior to September 9th, 2 you know, if one does two searches on different days on a 3 search engine, it's very reasonable to retrieve results during 4 the second search that were published prior to the first 5 search. It all depends on when the search engine added that 6 content to its search index. So that's how search engines 7 work. It's not going to have every single article on that day. 8 It has to be added to the index. So the methodology employed 9 was exactly the same as was employed in the first report. No 10 expert has stated otherwise. And its methodology is rock 11 solid. 12 Counsel for defendant complained about no underlining 13 data, but that's a little -- it's a misstatement. The expert 14 provided what traffic services were used, provided the website 15 domains, the URLs, provided the traffic numbers as well. So 16 the data is there. So employing the exact same methodology to 17 supplement the report, it's no surprise that additional 18 articles are going to come up. For example, search engines 19 will take a major website like the New York Times and crawl 20 that multiple times a day to get new articles. Articles on 21 more obscure websites won't be crawled by the search engine at 22 the same rate. So doing a search on two different days, you 23 are necessarily going to have two different results. And it 24 will even pick up results that predate the first search, 25 because it hasn't been crawled yet by the search engine that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794389

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7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 H3ulgiva 1 2 3 4 5 did one today, you'd probably have even more articles. you're using. I know this is a little bit hypertechnical, but I think that understanding is important to understand why a supplemental report varies from the original report. If you 6 THE COURT: Anything else? MS. SCHULTZ: That's all I have. THE COURT: Okay. Let me ask you, defense MR. PAGLIUCA: Yes, your Honor. THE COURT: -- I gather from that, if I understand it, that it's the edited version on the flash drive, or whatever you call it, that's the one that you want excluded. MR. PAGLIUCA: Correct. Your Honor, as I understand it, that is a proposed trial exhibit, although we haven't had an exhibit list yet. That is a specific rule that relates to trial exhibits. And to be clear, your Honor, there were four separate video clips that were late provided that I didn't complain about because I had them in advance of the deposition. Those four video clips total roughly four hours, give or take. From that four hours there was a professionally made exhibit that -- there are different camera angles displayed in this, the plaintiff has makeup on, the plaintiff is dressed in a suit. It is clearly edited to be an advocacy piece, your Honor. And so that is what was given to me the morning of and I didn't have an opportunity to look at it or cross-examine on SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794391

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14 H3ulgiva 1 it or give it to anybody to evaluate. That's the problem. 2 THE COURT: Okay. Do you want to add anything on 3 the -- 4 MR. PAGLIUCA: On Jansen? 5 THE COURT: Jansen? 6 MR. PAGLIUCA: Yes. I'm not mistaken and there is no 7 misunderstanding here, your Honor. Jansen redid his report to 8 try to take care of the deficiencies in the original report, 9 the deficiencies pointed out in his deposition, and he ended up 10 with substantially different results. That's point number one. 11 Point number two is, it is not accurate to say that 12 the additional 170 articles or multiples of sites postdated his 13 deposition because in the reply -- and it's a bit of a 14 confusing chart, I might add, your Honor. We have the dates of 15 these publications which all show that they predate his 16 deposition and his report, or the majority of them. So there's 17 no excuse for it. 18 THE COURT: Thank you. 19 Next. 302. 20 MS. MENNINGER: Good afternoon, your Honor. 21 As you know, the 302 statement we're talking about 22 here purports to be from an interview with the FBI in 2011 23 about events supposedly occurring in 1997 through 2002, so some 24 14 years later, and the report itself was purportedly written 25 two years after the interview, in 2013. It is so heavily SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794393

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15 H3ulgiva 1 redacted, we have no idea who the author of the report is. 2 THE COURT: What's the provenance of this report that 3 we're talking about? 4 MS. MENNINGER: It showed up in my discovery. 5 THE COURT: You mean the plaintiff had it? 6 MS. MENNINGER: Plaintiff had it, plaintiff provided 7 it to us in discovery, plaintiff has not explained where it 8 came from. 9 THE COURT: End of story. 10 MS. MENNINGER: Right. The author is redacted, your 11 Honor. I don't know who authored the report. 12 THE COURT: Right. All we know about it is that she 13 had a copy of it. 14 MS. MENNINGER: Apparently someone did and put it into 15 the discovery. I don't know who had it or where they got it. 16 THE COURT: Well, yes. Okay. All right. 17 MS. MENNINGER: So, you know, alluding to that point, 18 your Honor, there are so many redactions, it's unclear who 19 wrote the report, but more importantly, the content of the 20 report is so heavily redacted, we don't know what she's saying. 21 I mean, there are pages where there are just sentence 22 fragments. And so the problem, your Honor, which seems clear 23 to me, is that, to the extent there are statements in there, 24 they are hearsay statements. They are out of court. And so we 25 raised that in our motion in limine, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794395

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16 H3ulgiva 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In response, the plaintiffs submitted that they're not trying to offer this report for the truth. They're offering it for the fact that their client, they say, reported this information to law enforcement, in 2011. Well, you don't need the report for her to get on the stand and testify that she met with FBI agents in 2011. She can just say that without the report itself coming in. And even if it were to come in, it's unclear why anything in the report is relevant to a disputed fact in our case. We don't know what she reported. We don't see the names of people in there. We can't tell what she said. And because of the redactions, we don't know who she said it to, etc. So we can't talk to that unknown person that's redacted. She apparently must know who she talked to, and she didn't disclose that person, for example, in her Rule 26 disclosures, your Honor, so if she talked to someone about the facts of this case, didn't put them in her Rule 26 disclosures, then, your Honor, she's denied us the ability to get in touch with that person. As a backup and completely different argument to "we're not offering it for the truth of the matter," plaintiff's second argument is that they are offering it for the truth of the matter as a public record under 803(8). Your Honor, we already discussed for you why the document lacks trustworthiness. The source of the information is her. It's self-serving, to the extent it is a statement of fact, because SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794397

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17 H3ulgiva 1 I can't tell what it says. It would be self-serving. So your 2 Honor, it essentially puts plaintiff in the position of getting 3 on the stand and trying to say what she said to the FBI agent 4 and denying us the ability, because of the redactions, to 5 cross-examine her about what she actually said because the 6 redactions cover up the content for the most part. 7 Your Honor, prior consistent statements, I think our 8 law is clear in the brief that it has to be a specific 9 statement of fact and it has to be predating the motive to lie. 10 This statement came after she had already sold her story to the 11 reporter -- about a month later, I believe. So your Honor, her 12 motive to lie had already arisen at the time it says that this 13 interview was given, and that's all we really know about it. 14 Because the interview with the reporter is actually contained 15 in the FBI statement. 16 MS. McCAWLEY: Good morning, your Honor. It's Sigrid 17 McCawley on behalf of 18 Your Honor, this is not some obscure document that the 19 Court would not recognize. I'd like to pass up some copies for 20 your Honor. This is an FBI 302 report. It contains the seal 21 of the FBI at the top of it. It contains the date. Can I 22 approach, please. 23 It's a document that's commonly used when FBI agents 24 are conducting their investigations; in fact, it's required. 25 It indicates that the signer of the document, the recorder of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794399

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18 H3ulgiva 1 the document, was the individual who conducted the interview. 2 And I'd like to clarify. A statement was made that we 3 have not indicated who was involved in this FBI 302. We 4 produced email traffic about the meeting and about the FBI 5 agents involved in this meeting in discovery, probably nine 6 months ago, your Honor. This FBI 302 has all of the 7 trustworthiness that goes along with one of these documents. 8 Again, it has the seal and everything that is required. Your 9 Honor, it did come to us as a result of a FOIA request that we 10 sent. It is, your Honor, produced in accordance with how the 11 FBI 302s are typically kept. This is a public record under 12 803(8)(a), your Honor. 13 To be clear, it's actually a case that the defendants 14 cited in their brief, Upstate Shredding, which is a Southern 15 District of New York case, your Honor, that holds that these 16 types of reports do come into evidence under the public record 17 exception. Similarly, the Spanierman case, which is also, your 18 Honor, a Southern District of New York case, similarly holds 19 FBI records like the one that we are seeking to introduce are 20 entered into evidence under this public records exception. 21 So let's take a look at it. Again, at the top 22 right-hand corner you're going to see the FBI seal, you're 23 going to see the date, and you are going to see a lot of detail 24 about the client's interview during this interview. And as you 25 know, your Honor, this comes into play because the FBI was SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794401

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19 H3ulgiva 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continuing to investigate Epstein. They flew to Australia to interview our client. She gave her witness statement to them along with other evidence that she produced to them, and that's recorded in this. And why is that important? That's important because in this very case, the defendants have claimed that other witnesses who did not report to law enforcement is problematic. So we want to be able to show this jury that yes, our client did report this to law enforcement, she gave a detailed statement to the FBI about what happened to her during her time with the defendant and Epstein, and it does outline those details, as you'll see looking through it. Of course there are redactions, but that doesn't make the document something that shouldn't be shown to the jury. In fact, it needs to be shown to the jury to show that our client did report her allegations to law enforcement law enforcement. So your Honor, it comes a nonhearsay purpose, to show simply that and cooperated with in for that, which is she did report to authorities, but it also comes in under the hearsay exception of 803(8)(a), so that it can come in as a public record. And let's just look at the prongs of that test. A requires that it was an office activity. This is something that the FBI regularly does. It regularly conducts investigations, meetings with individuals and then records them in these 302s. It was a matter done under their legal duty to report. The FBI is required to have these forms, and that is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794403

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20 H3ulgiva 1 why it was recorded in this manner, your Honor. And it also 2 has no indications of a lack of trustworthiness. Again, it 3 says that the writer of the report, on the final page, was the 4 interviewee. They make hay about the dates when the interview 5 was versus the date of recording. That's not unusual either, 6 your Honor. In the course of their work they will record 7 information, interview witnesses, and then make their official 8 recording at the time that it's needed, and that is what 9 happened here, your Honor. So it meets all of the 10 trustworthiness prongs that are necessary for an 803 public 11 record, your Honor, and we believe that it should come in both 12 under that as a hearsay exception and as nonhearsay to show 13 that Ms. did report her allegations to law enforcement 14 and cooperated with law enforcement. 15 Thank you, your Honor. 16 MS. MENNINGER: What you did not just hear is -- well, 17 we don't have the FOIA request. We just have counsel 18 testifying that they issued a FOIA request and got this 19 document. We don't know who redacted the document. We don't 20 know whether that was plaintiff's counsel or some other person 21 before they got the document. We don't know when they got it. 22 She's sitting here and telling your Honor she wants to 23 introduce it for the fact that it was reported to law 24 enforcement. Your Honor, this was supposedly a 2011 interview 25 talking about events that happened, as I just mentioned, in SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794405

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21 H3ulgiva 1 1997 through 2002, so this is not some contemporaneous report 2 to law enforcement. We're talking about, at a minimum, an 3 11-year gap between some report to law enforcement. And you 4 don't need the document. Plaintiff can testify that she talked 5 to the FBI agents when she gets on the stand and she can say 6 she did that in March 2011. But the report itself is nothing 7 but hearsay offered for the truth of the matters asserted, your 8 Honor. I find it wholly improbable, the testimony -- and I'll 9 call it testimony -- by plaintiff's counsel that it's "not 10 unusual" for the FBI to delay writing a report for two years. 11 Your Honor, I practice in this area. I can tell you, it is 12 quite unusual, in my experience, to have an FBI report 13 generated two years after an interview. Was it generated from 14 a recording, or was it generated from memory? Was it generated 15 from notes? We have no idea, because you know what, we don't 16 know who it is that wrote the report that plaintiff says she 17 wants to introduce, and she hasn't provided that person's name. 18 Counsel said that there is no indications of a lack of 19 trustworthiness. In addition to the fact that we don't know 20 its provenance or where it came from, we don't know who wrote 21 it, we don't know when it was written or how, we don't know 22 what it actually says, because your Honor can see with your own 23 two eyes that the vast majority of the content is crossed out. 24 So if they introduce this evidence, we're going to have 25 plaintiff saying, well, what it says beneath that redaction is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794407

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22 H3ulgiva 1 XYZ, and I'm going to have no way, your Honor, of 2 cross-examining her with regard to what's underneath the 3 redaction because we don't have it. 4 So your Honor, for all those reasons, it does not meet 5 the test for 803(8)(a). They have asserted, without any 6 substance or proof, that this was pursuant to an authorized 7 investigation. They have asserted that it was prepared in due 8 course after two years. There's no proof. We don't know who 9 wrote it. We don't know what was said. I can't really picture 10 a less reliable document, your Honor. 11 THE COURT: Okay. The CVRA action and the plea and 12 prosecution and so on, and the victim notification letter. 13 MR. PAGLIUCA: Your Honor, we've broken this up, but 14 when I stop, Ms. Menninger can -- I'll tag her and she can come 15 into the ring. 16 THE COURT: That's fine. 17 MR. PAGLIUCA: Your Honor, I'm addressing the CVRA 18 litigation motion, 669. I have to start with first, your 19 Honor, one of my apparently pet peeves in this litigation is 20 the point of all of the pleadings that are being referenced in 21 this particular motion are drafted and filed by the lawyers 22 that are sitting in this room, and it is troubling to me, 23 because when we're arguing about the admissibility of this and 24 what goes to the jury, it seemed inescapable to me that we are 25 then in the position of, whether it's by document or from the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794409

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23 H3ulgiva 1 witness stand or from the podium, having lawyers offer facts to 2 a jury, statements to a jury, that they are going to be then 3 arguing are credible, and so we have this joinder motion, 4 drafted by Mr. Edwards and Mr. Cassell, that they would like to 5 introduce into evidence, whole cloth into evidence, that 6 contains the legal arguments and the statements of lawyers, 7 these lawyers, in a motion in another courtroom, of which they 8 will then be arguing to a jury that's all true. And so I don't 9 see how that's any different than a lawyer testifying in court, 10 and so that's, to me, part of the backdrop to this. 11 I also submit, your Honor, that the vast majority 12 well, frankly, all of these pleadings are not relevant to this 13 action, and I say that because the plaintiffs continue to turn 14 the issue of what's at issue in this case around. They have 15 the burden of proving that what Ms. Maxwell said was false. 16 That's what is at issue. We have to look at Ms. Maxwell's 17 statement issued by Barden and Gow and then go backwards from 18 there. And the burden on the plaintiff is proving falsity of 19 that statement. It is not the situation where -- which is what 20 they're trying to do is to say we have to prove what we said 21 was true, what we the lawyers said was true, and therefore, we 22 get to prove whatever we want to in connection with this 23 litigation. And so it seems to me that we have turned all of 24 this on its head, because instead of saying, the issue is, can 25 the plaintiff meet its burden to prove the statement issued by SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794411

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24 H3ulgiva 1 Gow and Barden on Maxwell's behalf was false, they are now 2 saying, we want to prove whatever we want to prove is true and 3 that needs to be the focus of this litigation. 4 So with that as the context and the backdrop, your 5 Honor, I simply don't understand or see how any of these 6 pleadings are (A) relevant to this case, and (B) I don't see it 7 or understand how they're simply not self-serving 8 lawyer-vouchered statements, and I haven't heard any reason 9 from the plaintiff, either orally or in writing, as to exactly 10 how the introduction of these documents would be relevant to 11 prove that Ms. Maxwell's statement was false. 12 THE COURT: But look, the problem obviously is that 13 this is the document to which the defendant was responding, or 14 at least portions of it. 15 MR. PAGLIUCA: Can I respond to that, your Honor? 16 THE COURT: Yes. 17 MR. PAGLIUCA: I think that that's what they would 18 like everyone to believe, but indeed, what the plaintiff was 19 responding to were communications from the media about a 20 document, these documents, that she had never seen, and so the 21 factual backdrop here is that -- I mean, this doesn't get 22 dropped on Ms. Maxwell's doorstep in December of 2014. She's 23 getting calls from the media about, What do you have to say 24 about this thing that these lawyers filed in this case in 25 Florida? She is I think in England at the time. I don't SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794413

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25 H3ulgiva 1 recall, frankly, but I believe she was in England; or her 2 agents certainly are in England who are issuing this release. 3 And so it's not that Ms. Maxwell reads this and then the 4 lawyers issue their statement. So what she's responding to are 5 press reports and calls from the media. I think that's pretty 6 clear by Mr. Barden's declaration in the summary judgment 7 paperwork as well as Mr. Gow's deposition. 8 The other thing that I have been pondering, your 9 Honor, because this is a large problem for this case, is, 10 assume for a moment, your Honor, what you just said is 11 absolutely true, that she's responding to this pleading. 12 Well -- 13 THE COURT: But she refers to statement, or 14 allegations. 15 MR. PAGLIUCA: Right. 16 THE COURT: And so it's those allegations that she's 17 responding to. 18 MR. PAGLIUCA: Well, the difficulty I have, your 19 Honor, and I think it's going to be a difficulty we're living 20 with here -- 21 THE COURT: But that's what the statement is. And -- 22 MR. PAGLIUCA: You asked a question during the summary 23 judgment hearing, and it's a great question: What are the 24 allegations? And I think that's at the heart of dealing with 25 the difficulty in a lot of these issues because as I stand here SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794415

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26 H3ulgiva 1 today, a year plus into this case, I don't know what they were. 2 And -- 3 THE COURT: But we do know in this instance. We know 4 exactly what they are. 5 MR. PAGLIUCA: Well, but let me push back on this for 6 a second, your Honor, because what we're talking about is not a 7 statement by the plaintiff. If that's what we're talking 8 about. If we're talking about this joinder motion, the Jane 9 Doe 102 joinder motion is a legal pleading filed by these two 10 lawyers. And there are no quotation marks in this thing -- 11 THE COURT: Of course. That's what an allegation is. 12 MR. PAGLIUCA: Yes, but there are no quotation marks 13 in this. There are no direct quotes. There is a lot of legal 14 hyperbole and conjecture throughout the entire pleading. There 15 are statements by counsel contained in the pleading. And so I 16 asked a question rhetorically: What's she responding to? Is 17 she defaming Mr. Edwards or Mr. Cassell, or is she defaming the 18 plaintiff? When you parse through this pleading, you could be 19 defaming all of these people, if that's what the allegation is. 20 So I think it's problematic to say this is the pleading that is 21 the allegation, because what happens is, this pleading gets 22 filed -- 23 THE COURT: But this is an allegation of hers. 24 MR. PAGLIUCA: Of who? 25 THE COURT: Of the plaintiff's. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794417

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27 H3ulgiva 1 MR. PAGLIUCA: Well, filed on her behalf by her 2 lawyers. 3 THE COURT: Come on. It's hers. It's her allegation. 4 MR. PAGLIUCA: And she is Jane Doe 102 and it is filed 5 by her lawyers, and that's what they are saying on her behalf. 6 That's what I can say about that, your Honor. 7 THE COURT: I do understand how these documents are 8 prepared. 9 MR. PAGLIUCA: I know you do. 10 THE COURT: This much I got. I've got that. But it's 11 her statement. Come on. 12 Similarly, Ms. Maxwell's statement is her statement, 13 regardless of how it was prepared. So I know the motive issue 14 and all that. Now whether it should be in some form, but your 15 client does not say, "The allegations with respect to me are 16 false." 17 MR. PAGLIUCA: Well, I disagree with that, your Honor. 18 I mean, I believe -- 19 THE COURT: They're all false. 20 MR. PAGLIUCA: But I believe a fair reading of that 21 document, the press release by Barden and Gow, is that she's 22 talking about the allegations against her, Maxwell, and she 23 includes Dershowitz, and that's essentially it. I mean, she's 24 not parsing through the 102 pleading and saying, you know, this 25 is wrong and that is wrong. And the fundamental reason for it SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794419

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28 H3ulgiva 1 is, she's never read the document prior to Barden and Gow 2 issuing the statement, and what she is reacting to are people 3 calling her and saying, you know -- 4 THE COURT: Well, whatever she knew. Well, okay. All 5 right. 6 MR. PAGLIUCA: That's it. 7 THE COURT: I guess we're as far as we can go on that. 8 MR. PAGLIUCA: It is whatever she knew. But what is 9 in the document is way broader, much broader, than her base of 10 knowledge, or Barden's or Gow's, at the time this press release 11 issued. So I think that's point number one. 12 Point number two is, they apparently want to introduce 13 a lot more information from the Jane Doe 102 CVRA litigation 14 than this simple document, and we can address those as we go 15 along. If the Court were to deem portions of this relating to 16 Ms. Maxwell and Mr. Dershowitz relevant to this matter, we had 17 proposed, as part of our pleadings, a redacted version of this, 18 which is also to your point just now, your Honor. 19 And my colleague points me directly to the statement, 20 your Honor -- the first line, second sentence. "The 21 allegations made by," and then it says Victoria which 22 is inaccurate by the drafter, "against Ghislaine Maxwell are 23 untrue." And then it follows. But that is the backdrop to 24 this. And she's responding to things about herself, not about 25 anybody else that are contained in this pleading. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794421

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29 H3ulgiva 1 MR. CASSELL: And we have a point of agreement here, 2 your Honor, now. We agree with the last point. The 3 allegations that Ms. made against Maxwell are what's at 4 issue in this case, not allegations against, you know, third -- 5 Maxwell and of course Epstein, those kinds of things, but not 6 other irrelevant players. But I think your Honor was exactly 7 right. 8 THE COURT: Well, so you would have no objection to 9 the introduction of the motion to intervene, the portions that 10 describe Maxwell or talk about Maxwell. 11 MR. CASSELL: And Epstein, of course. 12 MS. MENNINGER: No. 13 MR. CASSELL: And Epstein. Because Maxwell isn't 14 running around recruiting girls just for herself; she's running 15 around recruiting girls for Epstein. So the allegation is 16 against Maxwell and Epstein. The allegation that Ms. 17 made was that Maxwell was recruiting girls to give to her 18 boyfriend Epstein, so the allegations against Maxwell -- 19 THE COURT: So you would not object to the redaction 20 of everything else in that motion. 21 MR. CASSELL: The principle is correct. The devil, of 22 course, is in the details, because when you look at what 23 they've redacted, here's one of the things they want to redact. 24 Maxwell -- they want to redact this: "was a primary 25 co-conspirator in Epstein's sexual abuse and sex trafficking SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794423

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30 H3ulgiva 1 scheme." They want to redact, She recruited in a manner -- 2 this is what they want to redact, "in a fashion very similar to 3 the manner in which Epstein and his co-conspirators coerced 4 dozens of other children." So they want to redact everything 5 that provides the context for what the allegations are. 6 Ms. wasn't saying, hey, on one Tuesday I happened to 7 bump into Maxwell and something happened. She was alleging a 8 broader pattern of activity, that she was recruited into, as 9 your Honor well knows, sex trafficking by Maxwell and Epstein. 10 And so what I think -- 11 THE COURT: Well, her allegation is that Maxwell was a 12 co-conspirator. 13 MR. CASSELL: Correct. 14 THE COURT: We're not talking about -- 15 MR. CASSELL: Yes, we are talking -- 16 THE COURT: In our case, in our case, there's no crime 17 charged. I mean, I understand the underlying -- 18 MR. CASSELL: Sure. 19 THE COURT: -- facts. So it would be anything, in the 20 motion to intervene, that dealt with obviously Maxwell directly 21 or a co-conspirator. 22 MR. CASSELL: That's right. And the main 23 co-conspirator here would be Epstein, of course. These girls 24 were not being recruited, you know, just for Maxwell's personal 25 consumption but for, obviously, Epstein, to satisfy Epstein's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794425

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31 H3ulgiva 1 sexual desires. When you look at what they're trying to 2 redact, I think they're trying to make a mismatch out of the 3 original allegations so it will be difficult for us to explain 4 to the jury, well, why was this woman running around recruiting 5 young girls if we can't mention, well, she was recruiting the 6 young girls to take the sexual pressure off her and to satisfy 7 the sexual desires of Mr. Epstein. That's why there was this 8 vast -- 9 THE COURT: Anything else you want to tell me? 10 MR. CASSELL: Yes, your Honor. I mean, it's critical 11 to use the context here. As your Honor is pointing out -- and 12 I think you're even getting pushback from them on this basic 13 point. This is the core of the case. These were the original 14 allegations that Ms. made, and they say this wasn't 15 what she was responding to. If you look at, for example, their 16 pleading on June 6 of last year, there was only one public 17 statement that existed on January 2nd to which Ms. Maxwell 18 was responding. The document is the joinder motion filed in 19 the Crime Victims' Rights Act case on behalf of plaintiff. 20 That's what they said. That's what we said. We want to show 21 to the jury the one document that set off this whole defamatory 22 backlash, and what they want to do then is to redact it and 23 essentially take out things like references to Maxwell being a 24 co-conspirator, which means we won't be able to explain to the 25 jury the appropriate context here. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794427

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32 H3ulgiva 1 Also, the other point that's I think important to 2 remember is we're going to be seeking not just compensatory 3 damages but punitive damages, and when we get to that point, 4 which will be part of the initial phase -- I know the financial 5 issues may be different, but we're going to be arguing our 6 punitive damages case in the initial portion of the trial -- we 7 have to prove that she acted with actual malice. Her state of 8 mind is obviously a critical issue. And so the jury's going to 9 be wondering, well, why would she do this? One of the points 10 that we need to make is, why was Ms. trying to get into 11 this case in Florida? It was a Crime Victims' Rights Act case. 12 It was designed to rip up a plea agreement, a nonprosecution 13 agreement. And that agreement said all of Epstein's 14 co-conspirators get a free pass from criminal prosecution in 15 Florida. Which directly goes to Ms. Maxwell's motivation for 16 all this. 17 THE COURT: How do we know that? 18 MR. CASSELL: Well, because we're going to be arguing 19 that. We have -- 20 THE COURT: No. Arguing. How do we know that the 21 nonprosecution agreement gave immunity to Ms. Maxwell? 22 MR. CASSELL: Because it says it extends immunity to 23 any of the "potential co-conspirators of Epstein." And we will 24 introduce ample evidence at trial from which a reasonable jury 25 could conclude that one of the potential co-conspirators of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794429

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33 H3ulgiva 1 Epstein was Maxwell. In fact, she was the number two, the most 2 likely co-conspirator that benefited from that; his right-hand 3 girl. His right-hand woman. I'm sorry. Ms. Maxwell. And so 4 who got the benefit of that immunity provision? We're going to 5 present to the jury it's Maxwell who got the benefit of the 6 immunity provision. So why was it that she came out all guns 7 blazing when Ms. filed a motion to join, to rip up the 8 nonprosecution agreement? Because she had a horse in that 9 race. She was trying to protect immunity for herself. 10 And so again, we bear the burden of proving that she 11 acted with actual malice, that is, from a vindictive motive 12 rather than for benign reasons. And of course trying to keep 13 yourself immune from crimes you've committed is a classic 14 example of acting with actual malice. And that again is just 15 one of the arguments, and we're going to be able to connect all 16 those links in the chain through cross-examining Maxwell, 17 through cross-examining Epstein, and by also introducing ample 18 documents, presenting evidence of her direct involvement in 19 criminal offenses. And I realize crimes haven't been charged, 20 but we're going to show that there are going to be ample crimes 21 that could have been charged, which is why she needed the 22 immunity that was extended by the nonprosecution agreement. 23 And which is why she attacked Ms. in an effort to try 24 to make her allegations seem noncredible. 25 And, I mean, if I understood the motion, they were SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794431

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34 H3ulgiva 1 sort of just saying, well, we're not really sure whether she's 2 a victim or not. That's going to have to be proven to the 3 jury. Fair point. We have no objection saying, look, these 4 documents are coming in because they show the initial 5 allegations that Ms. made. It's up to the plaintiffs 6 to introduce evidence and to prove that's all true. We're 7 going to shoulder that burden at trial. But what this motion 8 seems to be designed to do, in our point of view, is to take 9 out things like the allegation that Ms. was a 10 co-conspirator of Epstein. They don't want the jury to hear 11 that, and of course that is a pivotal part of our case. 12 MR. PAGLIUCA: They used the term "actual malice." I 13 use the term "actual nonsense," your Honor. 14 You know, I first have to say, unless we're going to 15 close the courtroom or I get to respond in kind, half of what 16 this argument is is in violation of the protective order right 17 here. And it's lawyer argument. And there are no facts to 18 back it up. 19 Let's talk about the nonprosecution agreement. It is 20 absolutely factual, Ms. Maxwell was never, not once, ever, 21 contacted by the Palm Beach Police in reference to this 22 investigation. She was never, not once, contacted by the FBI 23 or the U.S. Attorney's Office in reference to this 24 investigation. She testified in her deposition that she didn't 25 hire a lawyer because she wasn't at risk in any of this. She SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794433

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35 H3ulgiva 1 didn't even know about any of this, your Honor. That's the 2 evidence in this case. There is zero evidence that will be 3 produced at trial to put Ms. Maxwell in any of this, in any of 4 the investigation. The lead detective, Recarey, never spoke to 5 her, never tried to call her. And when I asked him questions 6 about, you know, what did you know about Ms. Maxwell when you 7 were doing this investigation, his answer was, "Nothing." So 8 that's the backdrop to this. 9 There are in fact certain individuals named directly 10 as co-conspirators of Epstein's in the nonprosecution 11 agreement. Maxwell is not one of them. She had absolutely no 12 hand in crafting that agreement; none whatsoever. She never 13 talked to anybody; she never had a lawyer talk to anybody on 14 her behalf. So to start with the proposition that she then has 15 to eat this nonprosecution agreement in this case is absolute 16 nonsense. You want to take the backdrop to this in terms of 17 what the investigation was, there were a number of individuals 18 that were presented to the Florida State grand jury as a result 19 of the state investigation. Maxwell was not one of them. Not 20 at all. Never on anybody's radar about any of this. She 21 didn't need to participate in this and she didn't know anything 22 about it. That makes this nonprosecution agreement wholly 23 irrelevant as it relates to Ms. Maxwell. 24 And the entire argument you just heard is these two 25 lawyers' argument in the CVRA litigation that they now want to SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794435

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36 H3ulgiva 1 present from here to this jury during the course of this trial, 2 which is, again, wholly improper. 3 There is no evidence -- and in fact direct testimony 4 is contrary to this -- that Ms. Maxwell knew about a 5 nonprosecution agreement, knew about Epstein's plea agreement, 6 knew about any of these things. So the idea that somehow this 7 goes to actual malice is, again, actual nonsense. Because in 8 order for it to be malice, in some fashion you have to know 9 about it. And they have no evidence, they can present no 10 evidence that she knew about any of these things. There will 11 be no witness who gets on the witness stand who says Maxwell 12 knew about the nonprosecution agreement, Maxwell knew about 13 Epstein's immunity, Maxwell knew about Epstein's deal. Not 14 one. So the notion that they can then say, oh, you know, this 15 has something to do with her motive, well, all of the case law, 16 all of the case law on this issue, on introducing these kinds 17 of things to prove knowledge, requires that the person you're 18 introducing against actually knew about it. There is not one 19 case that they can cite, and they haven't cited, that says, I'm 20 going to introduce it for notice or knowledge. Well, you have 21 to know about it. The person has to know about it for it to be 22 introduced as notice or knowledge. 23 Again, I have to go back to the statement, your Honor. 24 What they're trying to do is very selectively say, we like this 25 evidence so, oh, yeah, that's something that is part of what SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794437

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37 H3ulgiva 1 we're going after; we don't like this evidence so of course 2 that's not what was at issue here. The statement doesn't say 3 Epstein in this statement. Not one mention of Epstein in this 4 statement. And I vigorously dispute the notion that because 5 lawyers put in a pleading, called someone a co-conspirator, 6 these two lawyers put in their pleading identifying somebody as 7 a co-conspirator when there's no evidence of that, that they 8 then, these two same lawyers, get to come into a courtroom and 9 give that to a jury and say, see, that was in this pleading 10 here. Well, there's no evidence of that. And they're not 11 going to produce any evidence of that. 12 And, by the way, your Honor, what we have to talk 13 about here are factual assertions, in a defamation case. We're 14 not talking about opinions. And what is the determination of 15 whether someone is a co-conspirator or not, your Honor? First 16 of all, it's a legal decision that certainly a layperson is not 17 qualified to make. You have conducted 801(d) (2) (E) hearings 18 for, you know, as long as I've been alive, I think, and you're 19 the one who's making those determinations after the 20 consideration of evidence. So to say that somebody can say 21 someone is a co-conspirator and then you issue a press release 22 that doesn't say, "I deny being a co-conspirator," that doesn't 23 talk about that document at all other than to say Jane Doe 3 is 24 to then say we get to introduce a bunch of 25 evidence because we said she was a co-conspirator against her SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794439

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38 H3ulgiva 1 stands this case right on its head. That is not a factual 2 assertion by Ms. that my client is a co-conspirator; 3 that's opinion. And what we are concerned about here, I think 4 as you pointed out in the very beginning of this case, is that 5 we're not dealing with opinions, we're dealing with facts and 6 factual assertions, which are at the heart of the defamation 7 claim, not lawyer opinions in a pleading. 8 Thank you. 9 MR. CASSELL: May I just briefly respond, your Honor? 10 MR. PAGLIUCA: You know, this is my motion, and I 11 don't think he gets that. 12 THE COURT: Yes. 13 MR. CASSELL: All right. Thank you, your Honor. 14 THE COURT: I take it that that concludes everything 15 anybody wants to say about the Epstein plea and his 16 registration. 17 MR. EDWARDS: No, your Honor. I was going to address 18 that separately. I don't know if there's an additional 19 argument from counsel. It was their motion, so if it is, 20 then -- 21 THE COURT: Yes. Okay. 22 MR. EDWARDS: And by the way, this is Brad Edwards on 23 behalf of Ms. but I believe it's their up. 24 MS. MENNINGER: Your Honor, a couple more points. 25 They are related to what was just articulated for your Honor. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794441

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39 H3ulgiva 1 But I think they are somewhat distinct. 2 With respect to the plea agreement, what we're talking 3 about here is Mr. Epstein entered a plea agreement with the 4 state of Florida, the district attorney's office. Again, as my 5 co-counsel just articulated, there's no evidence that 6 Ms. Maxwell had any participation in, knowledge of, etc., with 7 regard to that plea agreement. The same is true with respect 8 to the nonprosecution agreement, which was the federal side. 9 And then finally, he also moved to exclude any references to 10 Mr. Epstein's sex offender registration. All of these are 11 out-of-court statements. These documents are out-of-court 12 statements that they would like to introduce, they say in their 13 papers, for the "effect on the hearer," which, again, your 14 Honor, requires that the hearer actually have heard of them or 15 have seen them, and they have no evidence whatsoever that 16 Ms. Maxwell ever had possession of those documents. In fact, 17 when they asked her about this at deposition, she said that she 18 had not actually ever seen those documents. 19 The documents that were produced in discovery are 20 incomplete, by the way. I don't even have some of the 21 documents they reference in their response. They're talking 22 about lists of victims that were attached to some plea 23 agreements. It hasn't been given to me. It hasn't been given 24 to us. I still haven't seen it to this day. 25 And finally, your Honor, they claim, again, this SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794443

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40 H3ulgiva 1 notion that this somehow goes to Ms. Maxwell's state of mind. 2 And that reflects right back, your Honor, on counsel's argument 3 that we just had, which is, you can't have an effect on a state 4 of mind if you've never actually seen the document. 5 I had a couple more comments on the notification, the 6 victim notification letter, your Honor. While I'm here, I'll 7 just add those to it. 8 THE COURT: Sure. 9 MS. MENNINGER: Your Honor, the victim notification 10 letter, if you will, as it's been called in this litigation, 11 was purportedly sent to plaintiff in 2008, which is three years 12 before that FBI interview we were just talking about a minute 13 ago, in 2011. So at the time this so-called victim 14 notification letter says it was sent, plaintiff had never even 15 spoken to law enforcement. So it is entirely unclear on what 16 basis anybody reached a legal conclusion that plaintiff was the 17 victim of a federal crime. Even looking at the document 18 itself, your Honor, the document doesn't say on what grounds 19 anyone determined her to have been a victim. It doesn't say 20 who decided that. It doesn't say what evidence they looked at. 21 Doesn't say when they reached that conclusion. And more 22 importantly, it says she was identified as a victim of crimes 23 by Mr. Epstein. You can scour that document in vain trying to 24 find any reference to Ms. Maxwell. It's not in there. 25 Your Honor, at the same time that particular document SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794445

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41 H3ulgiva 1 was supposedly sent to plaintiff, the US attorney at the time, 2 Mr. Acosta, also sent a letter saying that he believed it was 3 preferable to have engaged in that kind of plea bargaining with 4 Mr. Epstein because they had a risk of not winning at trial. 5 In other words, your Honor, he didn't believe he had sufficient 6 evidence for a conviction against Mr. Epstein, thereby 7 undermining anybody's suggestion that that victim notification 8 letter actually was any type of adjudication or determination 9 that Ms. was in fact a victim. There is no grounds 10 within the letter or outside the circumstances of the letter to 11 explain who reached a conclusion, why or when. It is, your 12 Honor, inadmissible hearsay. It does not meet the 13 trustworthiness requirement for an 803(8) public record. Even 14 if, for example, a person could come in and authenticate the 15 record and explain its provenance, no such witness has been 16 identified by plaintiff to do that. And I submit, your Honor, 17 they cannot. 18 THE COURT: The problem that I see is that, I 19 understand the argument about the truth of the notification, 20 whether or not she's a victim. I get that. But it is an 21 explanation of her standing or her view of her standing in the 22 CVRA litigation. 23 MS. MENNINGER: Well, your Honor, that's an 24 interesting point. The letter does itself talk about, there's 25 been a challenge to the way in which victims have been SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794447

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42 H3ulgiva 1 notified, and if you want any more information about that, 2 here's a lawyer you can get in touch with. So supposedly she 3 got this letter in 2008, right? When, your Honor -- pop quiz 4 here -- did she file a joinder motion trying to join that CVRA 5 litigation? December 30, 2014. So we have in excess of a 6 six-year gap between being notified that there is some kind of 7 CVRA litigation and her effort to join that litigation. And in 8 the interim, your Honor, she had counsel. Not these two 9 counsel. She did get them in 2011. But in 2009 she had her 10 own lawyer, who is identified in that letter. And so what we 11 have is a letter, we don't know the provenance of it, but it 12 does give her some notice about her rights in the CVRA 13 litigation, telling her who to contact. She doesn't do that 14 for six years. 15 I think, your Honor, we are looking at having an 16 entire -- I don't even want to call it a sideshow, just an 17 entire CVRA litigation in this courtroom, because if that 18 letter comes in, then we are necessarily going to have to 19 explain a whole lot of law, a whole lot of facts to this jury 20 that are not pertinent to the statement issued by Ms. Maxwell's 21 counsel and press agent. We are going to have jury 22 instructions about what the Crime Victims' Rights Act means, 23 we're going to have Judge Marra's order explaining why did 24 someone wait six years and put in all these allegations about 25 nonparties like Ms. Maxwell, Mr. Dershowitz, and striking them. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794449

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43 H3ulgiva 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I mean striking them. You can't go on Pacer right now and get that joinder motion because he struck them. So we're talking about then taking all of that information, that legal discussion and factual discussion we're talking about 404(b) there, to redact, there was a Jane Doe 4 -- there's other Jane Does, some other things we'd move who also wasn't allowed to join who has completely different allegations. We're talking about things that are in those documents and law and rulings that are frankly, you know -- Ms. Maxwell certainly wasn't a part of the CVRA litigation so we haven't had an opportunity to even get all this information. We've had to subpoena these counsel for information, and they've moved to quash all of those subpoenas, your Honor. Even when we're asking, what is it that you even have from that litigation that relates to our litigation? They don't even want to provide that. But they want to come in here and bring in letters and plea agreements and all this other stuff that they've been litigating against Epstein but Ms. Maxwell has had no part of because she was not one of the people accused, by anybody else, except this plaintiff. THE COURT: The difficulty, obviously, is the -- and we're back to where we were some moments ago, of allegations. MS. MENNINGER: It's not really that difficult because we've had depositions of people like Ms. Maxwell. We've had depositions of Mr. Gow. You know, they've had an opportunity SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794451

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44 H3ulgiva 1 to develop this factual record. And guess what? No facts have 2 supported that anybody gave a copy of that CVRA joinder motion 3 to Ms. Maxwell. They didn't send it to her. They sent it to 4 the press. They called the press and told the press, cover 5 this motion. But they didn't send it to Ms. Maxwell. So they 6 don't have any evidence that she actually had the document. 7 What they have evidence of, Mr. Gow testified to, is she was 8 getting calls and he was getting calls from the press asking 9 for a response and, frankly, suggesting that there was a new 10 person out there who was making allegations against 11 Ms. Maxwell, when it turned out no other person has made 12 allegations against Ms. Maxwell, only plaintiff has done that. 13 And so the very first line of the statement, your Honor, is, 14 this is not a new person, this is the same person from 2011 15 that I already issued a statement about, and it talks directly 16 about, the allegations against Ghislaine Maxwell are untrue. 17 It doesn't say the allegations against Jeffrey Epstein are 18 untrue. It doesn't say the allegation about being a 19 co-conspirator, that part's untrue. It just talks about the 20 allegations against Ms. Maxwell. 21 THE COURT: But correct me if I'm wrong. There were 22 no allegations prior to this time of misbehavior by 23 Ms. Maxwell. 24 MS. MENNINGER: That's untrue, your Honor. Plaintiff 25 sold her story to Sharon Churcher. When she sold her story to SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794453

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45 H3ulgiva 1 Sharon Churcher, she made some allegations against Ms. Maxwell 2 then. 3 THE COURT: Oh, all right. 4 MS. MENNINGER: And you know what? Ms. Maxwell issued 5 a press release, an actual one that's out on the wires back in 6 2011, so when she's referring in this one to "already been 7 responded to," she's got that prior statement that's out, 8 still. You can go on the internet yourself right now and get 9 it. 10 THE COURT: So there were statements in the initial 11 story about Ms. Maxwell. 12 MS. MENNINGER: They were different. I mean, that was 13 part of this point is that over time the statements from 2011 14 were more minimal, and then by 2014, they had grown. That's 15 one of the points that was actually made in the -- 16 THE COURT: What were they? 17 MS. MENNINGER: At first she says she was the one, 18 that Ms. Maxwell was the one who introduced her to Epstein but 19 it was a different woman who led her upstairs to engage in 20 sexual contact with Mr. Epstein and that that other person is 21 the one who actually showed her and trained her how to be a 22 masseuse. That's what she said in the Sharon Churcher 23 published articles. 24 THE COURT: And that's the only reference to Maxwell 25 in the Churcher articles. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794455

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46 H3ulgiva 1 MS. MENNINGER: In the first Churcher article. But 2 your Honor, Ms. Churcher ran a series of articles in 2011 that 3 she had a, you know, an exclusive contract for a certain period 4 of time to keep publishing different stories. So that was the 5 first one. It got bigger and bigger as time went on. 6 MR. EDWARDS: Your Honor, Brad Edwards on behalf of 7 Ms. I prepared notebooks for a separate hearing, but 8 this hearing has evolved into a need for these notebooks, so 9 may I approach, your Honor? I believe it will help all of us 10 to focus on the issues. 11 And your Honor, I took the liberty to highlight 12 portions of it, and if by any means somebody believes, in 13 reading more of what is in this notebook, that other portions 14 may be helpful, then that's okay. But just to kind of focus 15 what this case is about. And for me, the parameters of this 16 case are defined by the statements and by the law governing 17 defamation. And if we start with, under Tab 1, Ms. Maxwell's 18 statement, line 1 is, "The allegations made against Ms. Maxwell 19 are untrue." So we are in agreement -- it's the allegations 20 made against Ms. Maxwell. Sentence two: "The original 21 allegations are not new and have been fully responded to and 22 shown to be untrue." So we have to first find the allegations 23 against Ms. Maxwell that she's responded to, and then for the 24 second sentence, what were the original allegations, and that 25 she fully responded to and shown to be untrue, and that's where SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794457

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47 H3ulgiva 1 we go to -- Tab 2 is the CVRA motion, and within that motion 2 there are allegations about Ms. Maxwell. There are also 3 allegations about others. We agree; the allegations that are 4 exclusively about others and are not related to Ms. Maxwell or 5 do not provide context for the allegations against Ms. Maxwell 6 are not relevant to this action. We go to the second sentence 7 of Ms. Maxwell's statement, which refers to the original 8 allegation, and we find the original allegations -- your Honor 9 just asked the question, were there previous allegations, and 10 there were. And under Tab 3, Jane Doe 102 v. Epstein, which 11 has been referred to today in this hearing, that was an action 12 that was filed by in 2009. Those were the 13 first allegations about Ms. Maxwell. And again, they're -- 14 THE COURT: But there's no evidence, or is there, of 15 Maxwell's knowledge of that case or those allegations. 16 MR. EDWARDS: There is, and I will explain. Beginning 17 in paragraph 17 of the Jane Doe 102 complaint through 18 paragraph 19, there are -- yeah, 17 through 19 -- there are 19 allegations about Ms. Maxwell. 20 In 2011, which is Tab 4 and 5, two articles come out. 21 If we start with Tab 4, that is one of the articles that was 22 being referred to by Ms. Maxwell, and the first line, the title 23 of the article is, "Prince Andrew and the 17-year-old girl his 24 sex offender friend flew to Britain." The next line down says, 25 reveals she is Jane Doe 102 in the Epstein SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794459

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48 H3ulgiva 1 action." It's talking about the original allegations from Jane 2 Doe 102. That is in the body of the 2011 article. 3 And there are more allegations within these articles 4 paraphrasing what was in Jane Doe 102 as well as elaborating 5 upon them through an interview that had, and 6 it results in a second article, a few days later, issued 7 March 7, 2011, that is entitled, "Epstein's Girl Friday fixer," 8 and the article is about Ms. Maxwell. And after that article, 9 a few days later, Ms. Maxwell issues a statement saying, "The 10 allegations against me are abhorrent and entirely untrue," 11 which she adopts in the first statement. 12 So this book contains the universe of statements -- 13 THE COURT: Yes, I understand that obviously she was 14 responding to this Churcher article, but there's nothing to me 15 that indicates that she was responding to the Epstein 16 complaint. 17 MR. EDWARDS: Well, she's responding to what she says 18 are the original allegations. The original allegations were in 19 Jane Doe 102 that's referred to in the Churcher articles. So 20 for certain, by 2011, she's looking at Jane Doe 102 to learn -- 21 THE COURT: Well, that's a leap. 22 MR. EDWARDS: Well, it may be, and she can get on the 23 stand and say, I saw that, that it said Jane Doe 102. This was 24 my boss who had gone to jail, who had been sued. 25 And so let me go into the second part of this, which SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794461

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49 H3ulgiva 1 deals with the admissibility of things like the nonprosecution 2 agreement, Jeffrey Epstein's plea, his sex offender 3 registration, because if it relates to Ms. Maxwell's statement 4 or the statement that Ms. Maxwell refers to, then it's 5 relevant. Or it goes to an element of defamation. If it does 6 not, then it cannot. And so the thing that I will tell you 7 about those documents is, Ms. Maxwell has admitted she was 8 employed by Mr. Epstein from a time period well before he went 9 to jail until 2009, until he's out of jail. She's on flight 10 logs with him. She's his number one employee. In fact, when 11 we took, in a separate case, Mr. Dershowitz' deposition on 12 specifically the topic of what did Jeffrey Epstein tell you 13 about allegations, or what did Ms. Maxwell tell 14 you -- 15 THE COURT: Give me a break. This I don't need, do I? 16 MR. EDWARDS: Well, I'm only bringing it up for the 17 last point, which is, he says: There was a joint defense 18 agreement in place during the 2005-2006 allegations between 19 Ghislaine Maxwell and Jeffrey Epstein. Therefore I can't give 20 you the answers. So we're talking about -- 21 THE COURT: As far as I know, there's no evidence 22 available to me of a joint defense agreement. 23 MR. EDWARDS: Okay. I only know what was testified to 24 in sworn testimony, so I presume 25 THE COURT: But it's not in this case. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794463

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50 H3ulgiva 1 MR. EDWARDS: Okay. 2 THE COURT: So problems enough I've got. 3 MR. EDWARDS: I understand. I understand, your Honor. 4 So at a time when Jeffrey Epstein is investigated, Ghislaine 5 Maxwell is flying on his plane, she's vacationing with him. We 6 have flight logs, we have photographs that were taken during 7 that time. 8 THE COURT: So what -- 9 MR. EDWARDS: So she knows 10 THE COURT: -- relative to what we're dealing with? 11 MR. EDWARDS: So she knows that he's pleading guilty. 12 THE COURT: You mean because she was on the plane I 13 can say she knows that he pled guilty? 14 MR. EDWARDS: She knows her employer went to jail 15 while -- 16 THE COURT: Okay. She knows the employer went to 17 jail. So? 18 MR. EDWARDS: It's a public record that -- 19 THE COURT: Okay. So? 20 MR. EDWARDS: -- that he's on the sex offender 21 registration. 22 THE COURT: Okay. Agreed. 23 MR. EDWARDS: So at the time 24 THE COURT: So? 25 MR. EDWARDS: So at the time she issues her statement SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794465

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