51 H3ulgiva 1 in 2015, which is, all of these allegations that deal with 2 Jeffrey Epstein and Ghislaine Maxwell, all of those allegations 3 are untrue, she has the ability to know all of the public 4 information that would tell her this is factually true. 5 THE COURT: But that's not -- okay. All right. 6 MR. EDWARDS: She can definitely -- 7 THE COURT: It doesn't wash. You know it doesn't 8 wash. You must know it doesn't wash. 9 MR. EDWARDS: I'm not saying she can't get on the 10 stand and say she doesn't know. I get that. But for her to be 11 the main employee and not know what's going on in his life when 12 everybody knows -- 13 THE COURT: Well, okay. All right. What's next? 14 MS. SCHULTZ: Your Honor, I'd like -- 15 MR. PAGLIUCA: I'd like to respond to this joint 16 defense agreement issue just raised by Mr. Edwards. 17 You're going to see a pleading later today that is 18 going to have the actual Dershowitz transcript testimony in 19 this, and this is now, again, I say lawyer testimony here, 20 unsupported by the facts. There is no joint defense agreement 21 between Maxwell and Dershowitz. I've told these lawyers that 22 ten times now. When you go back to the Dershowitz transcript, 23 which I have appended the portions of the pages they're now 24 talking about, Dershowitz is asked a question by -- not 25 Mr. Edwards, who's the defendant in that case, your Honor, and SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794467

(212) 805-0300 EFTA00794468

52 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 the plaintiff and counterclaimant are the defendant in that case. Who's in the room. Dershowitz is asked a question: Did you talk to Maxwell? And Dershowitz says: Gee, I think that may be privileged and I'm not going to answer. And I'm paraphrasing, but you will have this testimony. There's then an objection by the lawyer who's representing Mr. Edwards, about: Is this a legitimate assertion of joint defense privilege? Dershowitz I talked to people who think that comes under the transcript, who is then says: Well, you know, I know that were alleged as co-conspirators, and I Epstein's privilege. Mr. Edwards, in a party litigant, says: She wasn't a co-conspirator. That's what he says in this transcript, which you will see. He makes that affirmative representation to the special master and Dershowitz. Then Dershowitz says: Gee, this was a long time ago. I may be wrong about that, but I'm going to err on the side of invoking the privilege. And the special master says: Well, we can figure all this out later. If there is a joint defense agreement, you know, produce it and they can complain about it. They've taken that and disingenuously represented in pleadings and now again in court that there is some joint defense agreement with my client, which is emblematic of the problem of having lawyers as witnesses in this case, your Honor. MS. SCHULTZ: Your Honor, just to respond specifically with regard to the victim notification letter, if your Honor SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794469

(212) 805-0300 EFTA00794470

53 H3ulgiva 1 will allow, I'd like to approach and give you a copy of it. 2 Your Honor, you have the briefing in front of you so 3 you have our reasons why this should be admissible at trial. I 4 would just like to add to that we have a witness who can 5 authenticate this letter as well. It's Jeffrey Epstein. He 6 can authenticate what went into this letter, who it went to, 7 and why it did when he testifies. 8 I would also add that the chronology of events here is 9 really relevant and this victim notification letter comes into 10 play. You can see Ms. received this in 2008. Several 11 months later, she filed suit against Jeffrey Epstein pursuant 12 to this letter in the Jane Doe 102 complaint. Paragraph 29 of 13 that complaint references this specific letter, and of course 14 that complaint is referenced in the Churcher articles, which is 15 referenced by Ms. Maxwell's first public statement about 16 Ms. in 2011. So almost like a Russian nesting doll, 17 all this information is contained in the next document and the 18 next document and the next document. 19 This letter actually should also come in under 803(8) 20 as a public record. 21 THE COURT: Forgive me. What does Churcher say about 22 the Jane Doe complaint? 23 MS. SCHULTZ: She says that is the 24 Jane Doe of that complaint, and that complaint says that 25 Maxwell was a recruiter and abuser, and that complaint also SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794471

(212) 805-0300 EFTA00794472

54 H3ulgiva 1 says that Ms. received the victim notification letter. 2 Okay. It says: In her civil writ against him, under 3 a pseudonym, Jane Doe 102, she alleged that her duties included 4 being sexually exploited by Epstein's adult male peers, and it 5 says what her real name is, and of course these articles to 6 which defendant responded mention defendant as well. 7 THE COURT: Yes. Ms. Maxwell is not saying that the 8 article was false with respect to the filing of that complaint, 9 right? 10 MS. SCHULTZ: I'm sorry. I apologize, your Honor. I 11 don't think I follow your question. I think that Ms. Maxwell 12 knew about the Churcher article, which told her about the 13 litigation against Epstein. 14 THE COURT: It told her there was a complaint. 15 MS. SCHULTZ: Your Honor, this is also a public record 16 that should come in under 803(8). This came from a public 17 office, the United States Department of Justice. It contains 18 findings of a legally authorized investigation into the sex 19 crimes of Epstein. Defendant cannot make a showing that it 20 lacks trustworthiness. She does not cite to any cases in which 21 a victim notification letter has been excluded. Defendant has 22 in her briefing tried to recharacterize this as a witness 23 notification letter, but that's not what this is. It says 24 right at the top, Jeffrey Epstein, 25 Notification of Identified Victims, not identified witness. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794473

(212) 805-0300 EFTA00794474

55 H3ulgiva 1 The Seventh Circuit case cited by defendant can be 2 distinguished because in that case someone was trying to show 3 that he wasn't a criminal and that he was a victim instead. 4 That's not the situation here. So this has all the components 5 to warrant admission under 803(8). 6 And one more point. Alex Acosta never said he didn't 7 have enough evidence to convict Epstein. He said it was a risk 8 to go to trial. Every trial is a risk, and a decision not to 9 go to trial against someone does not mean that any of these 10 victims were not victims. It's a decision an attorney made 11 about whether to go to trial or to seek restitution in a 12 different manner. 13 That's all I have on that. 14 THE COURT: Tell me again why you think this is 15 relevant. 16 MS. SCHULTZ: I think, your Honor, that it goes to the 17 state of mind that Maxwell had when she issued her defamatory 18 statement. She knew that Ms. had brought this claim 19 against Epstein and the rubric under which she brought it 20 because she knew about the Churcher article, alerted her to it. 21 She had that knowledge for nearly five years. This was 2011. 22 She made a defamatory statement in 2015. 23 THE COURT: She knew that a case had been brought by 24 against Epstein, right? 25 MS. SCHULTZ: Yes, sir. Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794475

(212) 805-0300 EFTA00794476

56 H3ulgiva 1 THE COURT: More than that? 2 MS. SCHULTZ: It also shows that she knew about 3 Ms. standing under the CVRA joinder motion, because 4 that's also in this letter. And defendant did testify that she 5 knew why her boyfriend went to jail. She testified that she 6 knew about that. So it's kind of disingenuous to say that 7 defendant had no idea what was going on and all of a sudden in 8 2015 -- 9 THE COURT: Well, she knew that he went to jail, and 10 presumably she knew 11 MS. SCHULTZ: For sex crimes with minors. 12 THE COURT: Yes. 13 MS. McCANLEY: Your Honor, could I just add one point. 14 I'm sorry. Just one point of clarification with respect to the 15 Jane Doe 102 complaint, which is May 4th of 2009. Defendant 16 testified she was still working for Epstein in 2009, and this 17 has, if you turn in your binder, paragraph 17, specific 18 allegations about Maxwell leading her up to the room, about the 19 abuse she suffered by Maxwell, about how she engaged in that 20 abuse. I mean, there's no way to say Maxwell did not know 21 about the allegations in a complaint in 2009 when she's still 22 working for Epstein that specifically talk about her abusing 23 somebody. Taking off clothes I mean, it goes into grand 24 detail about the abuse. 25 THE COURT: But that's an assumption. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794477

(212) 805-0300 EFTA00794478

57 H3ulgiva 1 MS. McCAWLEY: Well, we're entitled to ask her on the 2 stand; we're entitled to ask Jeffrey what he told her. 3 THE COURT: That's a different issue. That's a 4 different issue. I mean, that's a wholly different thing. 5 You're talking about your affirmative case. 6 MS. McCAWLEY: Thank you, your Honor. 7 MS. MENNINGER: Your Honor, in the binder behind Tab 6 8 is the statement issued by Ms. Maxwell in 2011, which says, 9 "Ghislaine Maxwell denies the various allegations about her 10 that have appeared recently in the media." It doesn't 11 reference Jane Doe 102. There's no evidence that she even had 12 a copy of the complaint or knew anything about the complaint 13 that had filed as an anonymous person back in 14 2011. That's a statement she issued in response to the 15 articles behind Tabs 4 and 5. 16 I don't even understand the argument that Jeffrey 17 Epstein can authenticate this victim notification letter. I 18 really don't. I'm struggling. 19 And I also struggle with the Russian nesting dolls, 20 because to say that one thing gives you notice to another 21 thing, that gives you notice to another thing, it really kind 22 of just eliminates the rules of evidence, your Honor. 23 THE COURT: In the interest of humanity, we will have 24 a short break. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794479

(212) 805-0300 EFTA00794480

58 H3ulgiva 1 (In open court) 2 THE COURT: Much as I'd like to move on, I do have one 3 other question. Is there going to be evidence of settlement of 4 Jane Doe, from the defense? 5 MR. PAGLIUCA: You anticipate this answer, your Honor. 6 It kind of depends on what happens in the plaintiff's case in 7 chief. You know, that's as best as I can answer it. I mean, 8 it is not my present intention to introduce that evidence 9 during the course of the trial, I think is the best way I can 10 say it, but it's obviously going to depend on what happens in 11 the first part of the case. I mean, you know, if this thing 12 busts wide open, then it may be a donnybrook here about all 13 this stuff. 14 THE COURT: Well, and I thought that the information 15 that I have about that came from the defense. 16 MR. PAGLIUCA: It may be. I think we filed a motion 17 in limine to preclude the plaintiff from introducing it in 18 their case in chief. I think that's why you have that 19 information. 20 THE COURT: Ah. And is that -- 21 MS. McCAWLEY: Yes, your Honor. 22 THE COURT: That's part of the -- 23 MS. McCAWLEY: It's a separate motion, your Honor. I 24 can give you the docket entry. No. 6 -- 25 THE COURT: Where is it? I mean, we don't have it SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794481

(212) 805-0300 EFTA00794482

59 H3ulgiva 1 today. 2 MS. McCAWLEY: They moved for an extension of time to 3 respond to that. So it's their motion, the defendant's motion. 4 They moved to exclude the Jane Doe 102 complaint and the Jane 5 Doe settlement. Docket entry 663. We opposed that, in part, 6 and then they asked for an extension. I believe they're 7 supposed to be filing their reply to that this evening, so we 8 can argue that -- I'm happy to argue it now, but -- 9 THE COURT: No, no. Thanks very much. It is 10 conceivable that that would solve many of the problems that we 11 just talked about, however. 12 Okay. Where are we? Yes. Evidence of Maxwell's 13 involvement. 14 MR. CASSELL: Is this 686? 15 THE COURT: Yes. 16 MR. CASSELL: Yes, your Honor. Paul Cassell for 17 Ms. I'm arguing this motion. 18 As you know, the motion was an affirmative motion to 19 avoid disputes arising in the middle of trial, and so we set 20 out at the beginning of the pleading and I won't recount all 21 of it here, but -- illustrative types of evidence that we were 22 going to produce. And this, of course, is going to be evidence 23 that goes directly to proving the allegations that we've been 24 talking about today. For example, we're going to produce Tony 25 Figueroa, who's going to say that Epstein's assistants SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794483

(212) 805-0300 EFTA00794484

60 H3ulgiva 1 regularly called him asking him to bring girls over for 2 Epstein, and in fact the defendant once or twice called him 3 personally asking him to bring girls over. Epstein and the 4 defendant were always with each other -- 5 MR. PAGLIUCA: Your Honor, this is all subject to the 6 protective order, and I guess I don't know -- if we're throwing 7 it out the window, we're throwing it out the window and I will 8 respond in kind, but, you know, I just put it out there so that 9 there can be a fair response. This is a defamation case. I 10 think I'm entitled to a fair response to these comments, but I 11 don't want to be hamstrung by the protective order in 12 responding to these claims. 13 THE COURT: Well, look, and this goes to all counsel. 14 This would be part of the trial 15 MR. CASSELL: Yes. 16 THE COURT: -- except that you chose to bring it now, 17 and I'm not critical of that. That's perfectly all right by 18 me. But this is really part of the trial. And so I think the 19 defense comment is an appropriate one -- I mean, noting the 20 fact that the order is no longer in effect. 21 MR. PAGLIUCA: That's all fine with me, your Honor. 22 THE COURT: Well, I understand, but just so we all 23 know where we are. I mean, as I understood it, you all had 24 agreed -- now maybe I'm wrong -- that anything that was 25 introduced or anything that, absent a particular application, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794485

(212) 805-0300 EFTA00794486

61 H3ulgiva 1 anything that occurred in the trial is open. And this is part 2 of the trial. It isn't, but it is. And so what I'm saying is, 3 I think it is part of the trial, even though it's in the in 4 limine motion. It would be made during the trial. Now of 5 course it would not be made in front of a jury, but it would be 6 public. 7 MR. PAGLIUCA: The only reason I'm raising this issue, 8 your Honor, is twofold. 9 THE COURT: No. I think it's useful. 10 MR. PAGLIUCA: I don't want to be in violation of your 11 order. 12 THE COURT: No, no. Understood. 13 MR. PAGLIUCA: But the other is, we have these 14 arguments, and then after the fact plaintiff's counsel moves to 15 redact things that they don't like from the transcripts when, 16 you know -- it's like either it is or it isn't part of the 17 record. 18 THE COURT: Well, that we don't have today. I mean, 19 that issue we don't have today. But I've already said what I 20 think about it. And, I mean, it's not written in stone, 21 obviously. I'd be pleased to have any authority that anybody 22 wants to give me on it. But that's my reaction, that this is 23 part of the open record, just so we all know where we are. 24 MR. PAGLIUCA: Great. 25 MR. CASSELL: If I could just make a note about two SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794487

(212) 805-0300 EFTA00794488

62 H3ulgiva 1 points. One would be, there are minor victims of sexual 2 assaults who are not parties to this case. 3 THE COURT: Well, now, you can't have it both ways. 4 Okay? If there's somebody you want to talk about whose 5 identity you want concealed, I thought we had understood that 6 that was fine. Make an application, we'll deal with that. 7 We'll deal with that. Absent that -- 8 MR. CASSELL: It's going to be my practice to refer to 9 under-age victims of sexual assault by initials rather than 10 their full names, and I would hope defense counsel would agree 11 to follow the same approach. 12 MR. PAGLIUCA: No. 13 MR. CASSELL: Then we would make an oral application 14 that the names of minor victims of sexual assault be referred 15 to by their initials, because it's not like -- 16 THE COURT: Well, wait, wait, wait, wait, wait. One 17 of the problems I have at the moment is trying to bring order 18 out of chaos, and I think we had agreed that if there's going 19 to be an application for that kind of relief, it should be made 20 and we'll deal with it. I don't want to do it on the fly, 21 suddenly, without any notice to anybody about anything, and so 22 if you want to do that, I'm not prejudging it at all. That's 23 fine with me. But I think where we are at the moment is that 24 anything that's referenced now is open. That's the way I look 25 at it. Okay. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794489

(212) 805-0300 EFTA00794490

63 H3ulgiva 1 MR. CASSELL: Thank you, your Honor. For example, I'm 2 going to refer, in the next bit of evidence, which is in our 3 reply brief, to a woman who I will identify by the initials SR. 4 She described defendant as "the main right-hand woman of 5 Epstein" in connection with recruiting girls. She described a 6 rotation. She said the rotation was organized by defendant. 7 Every single day defendant would go to another girl and say, 8 "It's your turn." 9 THE COURT: Well, wait, wait, wait. Maybe I'm 10 wrong which, parenthetically, I have been wrong on a number 11 of occasions, which I regretfully report -- but this is the 12 kind of an argument that somebody gets on the stand and they 13 begin to testify and somebody makes an objection. And isn't 14 that the case here? I mean, I don't know. I guess I'm saying, 15 is this a proper in limine motion? I mean, we can't try the 16 case twice. 17 MR. CASSELL: Right. But your Honor, the reason we 18 brought this to your Honor's attention early is, this is going 19 to permeate a number of the significant witnesses in the case. 20 And rather than doing it on the fly in the middle of the trial 21 with the jury here, since the issue can be clearly framed for 22 your Honor at this point, there's no dispute as to what kind of 23 evidence we're going to try to produce at trial, and I think 24 there's obviously no dispute the defendant is going to oppose 25 it, we wanted to surface the issue -- SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794491

(212) 805-0300 EFTA00794492

64 H3ulgiva 1 THE COURT: Yes, but what you just said, you see, it 2 will be a question of what time frame are we talking about, of 3 what was the witness' access. I mean, there are a lot of 4 foundational questions that will come up, it seems to me. I 5 mean, what I'm hoping is, as we proceed, we'll have an idea of 6 who's going to testify and a rough idea of what their testimony 7 is going to be, and at that point I'm perfectly prepared to sit 8 with counsel and deal with it, but I'm not sure that we can go 9 through witness by witness now. Does that make sense? 10 MR. CASSELL: It does very much, your Honor. I was 11 simply offering in our brief -- as you know, our papers offered 12 illustrative examples of an issue that your Honor is certain to 13 face at trial so that we could get your guidance pretrial as to 14 how -- 15 THE COURT: If you have a witness who's going to 16 testify that Ms. Maxwell did in fact do the things that she 17 says said she did, that -- 18 MR. CASSELL: That's all we're looking for. 19 THE COURT: Well, that's the case, isn't it? 20 MR. CASSELL: As you know, it seems like in this case, 21 what's being -- 22 THE COURT: Well, let me ask the defense: What's your 23 view of all this? 24 MR. PAGLIUCA: Well, your Honor -- 25 THE COURT: There's a propriety of trying to deal with SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794493

(212) 805-0300 EFTA00794494

65 H3ulgiva 1 this now. 2 MR. PAGLIUCA: We pointed this out in the papers, 3 which is precisely this problem you're struggling with. In the 4 response that we filed, we pointed out that they haven't 5 complied with Rule 404(b) and they haven't complied with 6 Rule 415 because, you know, the allusion to this testimony are 7 things like these bullet points on page 3 of their application: 8 "Ms. will introduce testimony from a female," 9 unidentified. "Ms. intends to introduce testimony of 10 another witness." There is no time frame, there's no identity. 11 We have a bullet point that is literally three sentences long 12 for each of these. So there's no context for the Court to rule 13 on any of this. 14 So I agree with you, your Honor. I think, though, it 15 is going to be an issue that is going to be struggled with 16 during the course of this trial, in my view. And there are 17 competing 404(b) motions here, in essence, your Honor. They 18 have filed a 404(b) motion to introduce evidence and we have 19 filed a 404(b) motion to exclude evidence. Frankly, we don't 20 know what the evidence is that they're talking about in this 21 application to introduce the evidence, and we don't believe 22 that they have complied with the rules, and so as a matter of 23 pretrial ruling, it should just be denied and, you know, if 24 there is some evidence then that we need to discuss, we need to 25 discuss it. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794495

(212) 805-0300 EFTA00794496

66 H3ulgiva 1 But for example, there are specific requirements under 2 Rule 404(b) that has to be offered for a specific purpose. You 3 know, we have to be able to separate out the impermissible 4 inference from the appropriate purpose. There has to be a 5 finding by the Court under Huddleston, and so on and so forth. 6 And unless the plaintiffs can provide you with sufficient 7 information that can then be challenged, we're just spinning 8 our wheels here, because we're talking about things that we 9 don't know about. 10 Similarly, Rule 415 has specific requirements that 11 have to be complied with for the proponent of the evidence. 12 None of those have been complied with here. 13 So my suggestion is that this motion at this point be 14 denied, and if there's a specific evidentiary foundation that 15 the Court can have that would allow the Court to make a ruling 16 after argument, that's fine, but right now we just have 17 counsel's representations in papers and in court and no actual 18 evidence before your Honor. 19 MR. CASSELL: Your Honor, may I approach briefly, 20 because with regard to compliance with the rules, it requires 21 notice of the specific testimony at issue, and we included an 22 appendix, I believe it's approximately a 25-page-long document, 23 so -- 24 MS. MENNINGER: Is that in your reply? 25 MR. CASSELL: Appendix A? SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794497

(212) 805-0300 EFTA00794498

67 H3ulgiva 1 MS. MENNINGER: You provided the notice in the reply? 2 MR. CASSELL: Your Honor, I'm happy to argue, but I 3 don't believe counsel should be interjecting in the middle of 4 my argument. I'd like to just provide this document to your 5 Honor at this time. 6 MR. PAGLIUCA: Well, the point of what Ms. Menninger 7 is saying, your Honor 8 MR. CASSELL: Your Honor, is it my turn to speak? I 9 would request that I be given an opportunity to make my case 10 now. 11 THE COURT: Well, wait a minute. I'm trying to -- 12 MS. MENNINGER: Can you give us a copy. 13 THE COURT: I'm trying to figure out whether I'm going 14 to hear any of this now. 15 Well, there we are. I take it under 415 there are 16 certain requirements. 17 MR. CASSELL: Yes, your Honor. And that's what 18 Appendix A is. 19 THE COURT: Witness' statements or summary of the 20 expected testimony. 21 MR. CASSELL: Yes, your Honor. That's what Appendix A 22 is designed to do. It's a 20-page summary of approximately I 23 believe ten different witnesses. We've asked in our pleading 24 to have Appendix A construed as the appropriate notice under 25 Rule 415(b). If your Honor were to rule today that that notice SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794499

(212) 805-0300 EFTA00794500

68 H3ulgiva 1 is not adequate, we would certainly provide additional notice. 2 We notice, by the way, that 415 requires notice 15 days in 3 advance of trial. 4 THE COURT: Yes. 5 MR. CASSELL: So today, one of the things I'm trying 6 to make certain isn't overlooked is that we provided fair 7 notice to the other side. 8 THE COURT: That's fine. You say Appendix A. 9 MR. CASSELL: I believe your law clerk has it right in 10 front of you. 11 THE COURT: Ah, okay. 12 On the question of whether this is ripe, let me ask 13 the defense, what do you think about Appendix A? 14 MR. PAGLIUCA: The first thing I would point out, your 15 Honor, is that it wasn't proffered as part of their motion; it 16 was proffered as part of the reply, and very recently, and we 17 haven't had the time to respond to it. That's point one. 18 Point two is, the cited transcript testimony, frankly, 19 is the subject of a number of other objections and motions that 20 are pending for a lot of these witnesses. And so the testimony 21 that's being proffered is also know, because I wrote some 22 of the objections -- being objected to for other reasons. So 23 if we're going to talk about this testimony as the proffer, I'd 24 like an opportunity to respond to it. But it also makes some 25 sense to me that this would be put in abeyance until after we SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794501

(212) 805-0300 EFTA00794502

69 H3ulgiva 1 rule on some of the other motions, including issues 2 specifically related to the questions and answers in the 3 deposition, because that may impact the Court's ruling on this. 4 THE COURT: Okay. Now what else do we have? I think 5 I know what we're doing tomorrow. Ah. Oh, so with this, we're 6 going to deal with that. Right? 7 MS. MENNINGER: Correct. 8 THE COURT: So that makes some kind of sense to me. 9 I understand that you believe some of the designated 10 testimony is inadmissible for various reasons, and that we'll 11 deal with on the 5th, and I think maybe it would be 12 appropriate -- and tell me if you agree or disagree -- that on 13 the 5th, if you have any other objections to the notice element 14 in the rules, raise them then and then we'll decide whether we 15 want to pursue this now or hold it for trial. 16 MR. PAGLIUCA: That makes perfect sense to me, your 17 Honor. 18 THE COURT: How does that sound to the plaintiffs? 19 MR. CASSELL: I think that's satisfactory, your Honor. 20 I would just point out that the notice is not due until 15 days 21 before trial. 22 THE COURT: No. I understand that. 23 MR. CASSELL: But we are planning to supplement this 24 notice, particularly in light of, we continue to hear 25 objections today that this isn't sufficient, so I'm planning to SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794503

(212) 805-0300 EFTA00794504

70 H3ulgiva 1 provide a supplemental notice. 2 THE COURT: Well, when will your notice be complete? 3 And of course you're entitled to say not until 15 days before 4 trial. 5 MR. CASSELL: I'm the one who will be preparing the 6 notice. I'm out of town until I get back in my office next 7 Tuesday, and so I can have it ready for you by Wednesday night, 8 of next week. 9 THE COURT: But you heard what I said, that 10 MR. CASSELL: Right. 11 THE COURT: -- that's it? 12 MR. CASSELL: We would then have what we think is a 13 sufficient notice by next Wednesday night. 14 THE COURT: No, no, no. But that's not quite what I'm 15 saying. 16 MR. CASSELL: I'm sorry. 17 THE COURT: What I'm saying is, do you want to use the 18 entire period that is available to you -- 19 MR. CASSELL: No. 20 THE COURT: All right. Well, then you tell us. What 21 date will you make your final -- 22 MR. CASSELL: Next Wednesday night. Because I think 23 we're here next Wednesday, and Thursday it could be argued. 24 THE COURT: All right. So then obviously we won't be 25 able to deal with this question of the notice until the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794505

(212) 805-0300 EFTA00794506

71 H3ulgiva 1 following week. 2 MR. CASSELL: Are we here next Wednesday and Thursday 3 or -- 4 THE COURT: I don't know. Oh, yes. Well, but you're 5 also going to be here on the 10th. 6 MR. PAGLIUCA: We're here next Wednesday, not next 7 Thursday. 8 MR. CASSELL: Oh, I'm sorry. 9 THE COURT: I don't know. Wednesday, Thursday? 10 MR. PAGLIUCA: We're here next Wednesday, not next 11 Thursday. And just to this point, I'd rather not get a notice 12 either Tuesday night or Wednesday -- 13 THE COURT: Oh, no. Of course. I understand that. 14 MR. PAGLIUCA: Thank you. 15 THE COURT: Oh, yes. Okay. So next Wednesday is the 16 drop dead date for the notice under 415. And we will consider 17 it, and defense will let us know if they have any objections to 18 the notice qua notice. 19 MR. CASSELL: Right. 20 THE COURT: And then at that point we'll determine 21 whether we want to hear it in advance of trial or save it for 22 the trial. Okay? 23 MR. CASSELL: The only thing that we would request is, 24 if the defense says, your notice is defective on point A or B, 25 since we don't have to finally file it until 15 days before, we SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794507

(212) 805-0300 EFTA00794508

72 H3ulgiva 1 would then request leave to have a chance to fix it. We want 2 to -- 3 THE COURT: Well, that's just exactly what I was 4 trying to avoid. So look, okay, you want to take your full 5 time, go ahead, take it. Obviously we will not be able to deal 6 with this until 15 days before the trial. Which is okay. 7 MR. CASSELL: All right. Thank you, your Honor. 8 THE COURT: Okay. All right. So where are we now? 9 What's the plaintiff's plan? 10 MS. McCAWLEY: I think you said the next motion that 11 you wanted to hear was defendant's motion prohibiting 12 questioning regarding defendant's sexual activities, which 13 is -- 14 THE COURT: 675? No. 15 MS. McCAWLEY: 665. 16 MS. MENNINGER: I have 675, as your Honor had 17 indicated. 18 THE COURT: Yes. 19 Forgive me. Maybe you all know where we are on the 20 415 problem, timingwise, but I don't. 21 MS. MENNINGER: I don't. 22 MS. McCAWLEY: You mean what you were just discussing, 23 your Honor, for our notice? We'll provide the notice within 15 24 days prior to trial. Is that what you're asking? 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794509

(212) 805-0300 EFTA00794510

73 H3ulgiva 1 MS. McCAWLEY: That's how we'll do that. 2 THE COURT: So you won't do anything before then. 3 Okay. 4 MS. McCAWLEY: So I'm sorry. I confused you. I 5 thought you were asking about -- when you gave the list at the 6 beginning of the hearing, I think what you said, one of the 7 ones you wanted to hear was DE 665, which is defendant's motion 8 in limine to prohibit questions regarding defendant's adult 9 sexual activities. 10 THE COURT: The only ones -- 11 MS. McCAWLEY: That's fully briefed. 12 THE COURT: Yes. Okay. It's Maxwell's motion. 13 MS. McCAWLEY: Yes, your Honor. 14 MS. MENNINGER: Are you talking about 665 or 675? 15 THE COURT: I think 675? 16 MS. McCAWLEY: Or -- oh, do I have the number wrong? 17 I'm sorry. 18 MR. EDWARDS: 665 is -- 19 MS. MENNINGER: I have 675, which is our motion in 20 limine to permit questioning regarding plaintiff's sexual 21 history and reputation. 22 THE COURT: Yes. 23 MS. McCAWLEY: Oh. But you also have a motion in 24 limine to prohibit questions regarding defendant's adult sexual 25 activity. That's 665. That's defendant's motion in limine. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794511

(212) 805-0300 EFTA00794512

74 H3ulgiva 1 THE COURT: Well, you want to do that? It's the same 2 problem. Well, no, it isn't. No, it isn't. 3 Okay. So let's do 675. 4 MS. MENNINGER: Your Honor, I will say that it is my 5 reading of Rule 412 that any hearing that is based upon in part 6 Rule 412 is supposed to be conducted in a in camera setting. 7 MS. SCHULTZ: Counsel for Ms. has no objection 8 to that. 9 MS. MENNINGER: It's our position that the materials 10 are not barred by 412, but I am trying to be cautious here, 11 your Honor. 12 THE COURT: Well, let me ask you a dumb question. 13 This is not a sex offense case. 14 MS. MENNINGER: Your Honor, in fact, the notes, the 15 committee notes in regard to Rule 412 specifically exclude 16 defamation actions involving statements concerning sexual 17 misconduct, which is pretty directly on point, I think. 18 THE COURT: Oh, yes. Okay. All right. Okay. Is 19 there anybody in the courtroom that is not part of the 20 litigation team? Okay. 21 MS. MENNINGER: Your Honor, there is counsel for a 22 witness who happens to be present who is covered by the 23 protective order, but I believe there are other people who are 24 not related to the trial team. 25 UNIDENTIFIED SPEAKER: I am not part of the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794513

(212) 805-0300 EFTA00794514

75 H3ulgiva 1 litigation, but I wanted to read something. Our attorney said 2 to read something in the courtroom. 3 (Reporter interrupted for clarification) 4 THE COURT: Will the lawyers get this sorted out. 5 MR. CASSELL: It's a 6 MR. EDWARDS: I think it's the press objecting to the 7 court proceedings. She wants to put something on the record 8 for the press. That's what I understand. 9 UNIDENTIFIED SPEAKER: Yes. Exactly. 10 THE COURT: Thanks very much but no thanks. The 11 courtroom will be closed. 12 (Unidentified member of the press excused from the 13 courtroom) 14 MS. McCAWLEY: He's with our firm over there. 15 MS. MENNINGER: Your Honor, I hope I'm being clear, 16 but I'm going to say it one more time. I do not believe that 17 Rule 412 bars the evidence that we seek to admit by virtue of 18 this motion. However, we filed this motion in an abundance of 19 caution. I was directing your Honor to the advisory committee 20 notes that actually say that 412 does not bar this kind of 21 evidence in a defamation action involving statements concerning 22 sexual misconduct, which this case clearly is. 23 Your Honor, there are four categories of evidence that 24 we would like to introduce and we believe are not precluded by 25 Rule 412 or any of the other rules of evidence, and so that's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794515

(212) 805-0300 EFTA00794516

76 H3ulgiva 1 what the point of my motion is. The first one relates to 2 plaintiff's allegations that prior to ever meeting Mr. Epstein 3 or Ms. Maxwell, she was the victim of sex trafficking by an 4 individual named Ronald Eppinger. Mr. Eppinger apparently was 5 indicted in Florida for some sex crimes, and plaintiff's 6 counsel took Mr. Eppinger's sex crimes information, his 7 indictment, his arrest, neither of which mentioned plaintiff, 8 by the way, but they took those materials and gave them to 9 their psychiatric expert, Dr. Kliman, who made the video we 10 talked about earlier. Dr. Kliman also administered a number of 11 tests to plaintiffs to figure out whether she had any 12 preexisting mental health conditions, in particular 13 posttraumatic stress disorder. In response to plaintiff's 14 claims that she had posttraumatic stress disorder, she 15 described a period of time when she says she was victimized by 16 Mr. Eppinger, and she attributed her PTSD to that time period. 17 Then, in Dr. Kliman's report, he describes both Mr. Eppinger's 18 criminal charges and also and this is very important, your 19 Honor -- plaintiff claims that when she first met Mr. Epstein 20 and Ms. Maxwell, she told them about Ron Eppinger, that she 21 said she had previously been the victim of sex crimes by this 22 Ron Eppinger, and she said she told them that so they knew that 23 she was a vulnerable victim. And she attributes that 24 conversation to the very first time she met Ms. Maxwell and 25 Mr. Epstein. She not only has put that into her book SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794517

(212) 805-0300 EFTA00794518

77 H3ulgiva 1 manuscript but she told that to her psychiatrist, who was the 2 expert endorsed by her in this case. So Dr. Kliman, at his 3 deposition, was asked about any preexisting conditions that 4 Ms. has, and he found that she already had PTSD from 5 this Eppinger event prior to ever meeting Mr. Epstein or 6 Ms. Maxwell. And he also said that she needs treatment for the 7 fact that she had already been trafficked; she needs 8 psychiatric treatment going forward for that prior event, even 9 without any alleged defamatory statement. In other words, he 10 said that even if this statement had never been made, he would 11 also have recommended that she continue to have treatment going 12 forward. And then, as you know, from reading all of the 702 13 motions, he has said she needed a certain dollar value of 14 treatment going forward. 15 So for us, now she's got a claim for PTSD from the 16 alleged defamatory statement, or at least she's claiming her 17 prior PTSD was exacerbated by the defamatory statement. 18 There's no way to talk about her preexisting condition without 19 talking about the fact that she says she was sexually 20 trafficked before meeting Epstein and Maxwell, and also she 21 says she told them about it in their first meeting. There's 22 simply no way to cross-examine her about either her condition 23 or her story as it relates to Epstein and Maxwell without 24 getting into this alleged prior sex trafficking. Plaintiff in 25 their response said they want to keep it out. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794519

(212) 805-0300 EFTA00794520

78 H3ulgiva 1 It also was a part of her story in those Sharon 2 Churcher articles, your Honor now has in a book in front of 3 you, that we talked about a little bit earlier, so it is 4 plaintiff who publicized to the entire world the fact that she 5 says she was sexually trafficked prior to Epstein and Maxwell. 6 She put that into her Sharon Churcher story. She got paid for 7 that story. And so one of the issues in our case are her 8 damages to her reputation. And if she's the one who was 9 affirmatively selling that story to the press, publicizing it 10 to the world, it is impossible for us to cross-examine her with 11 regard to what her reputation was like in advance of any 12 supposed statement that she claims is defamatory. So in other 13 words, Rule 412 excludes -- even if your Honor were to find 14 that it applies for some reason, it explicitly excludes 15 evidence offered to show the defamatory statement did not 16 damage her reputation, if the victim puts her reputation in 17 issue. That's in the plain language of the rule. 18 The second category of evidence we seek to introduce 19 at trial, your Honor, relates to testimony by her fianc 20 Michael Ostrich and her boyfriend Tony Figueroa. The facts on 21 this, your Honor, are that Ms. met Mr. Ostrich, he was 22 the brother of someone she was in rehab with, she was in drug 23 rehab from the ages of 14 to 15, and she made a friend there 24 and it turned out to be Mr. Ostrich's sister, so when she got 25 out of drug rehab in 1999, she moved in with Mr. Ostrich's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794521

(212) 805-0300 EFTA00794522

79 H3ulgiva 1 family, met him and became engaged to him. While she was 2 engaged to him, she and he -- and he described at the 3 deposition, he got down on one knee and proposed to her and 4 gave her a ring. They then moved back in with plaintiff's 5 parents for a while. And again, your Honor, this all predates 6 when she says that she met Ms. Maxwell or Mr. Epstein. She 7 moved back in with her parents with her fianc. Both of her 8 parents talked about her having this fianc and living in the 9 trailer outside of their home. And then ultimately she -- I'm 10 sorry. There was a period of time she and this fianc lived 11 apart in another city, in an apartment, and then later they 12 moved back in with plaintiff's parents, and then they got their 13 own apartment near her parents' house, and she says that when 14 she was living in this apartment is when she met Mr. Epstein 15 and Ms. Maxwell. 16 Your Honor, we seek -- I did not ask Mr. Ostrich 17 questions about any particular sexual acts. I asked him 18 questions about her being engaged to him and living with him 19 during the period of time she claims she was a sex slave of 20 Mr. Epstein. So Mr. Ostrich has relevant testimony regarding 21 the time period, his observations, his conversations with her, 22 and the fact that he was her fianc at that period of time. I 23 don't think any of that implicates Rule 412, the fact that she 24 was engaged to and living with her boyfriend, but plaintiffs 25 have taken a different view in their response, somehow claiming SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794523

(212) 805-0300 EFTA00794524

80 H3ulgiva 1 that a 16 year old can't legally be engaged and therefore it's 2 somehow a commentary on her sex life. I don't get it. She's 3 engaged, she's living with a guy, and she's presenting herself 4 to her parents and the world as being engaged to him. 5 Secondly, your Honor, she held herself out to 6 Ms. Maxwell as being engaged to this individual, by her own 7 account. So she told Ms. Maxwell she was engaged. One of the 8 issues in this case is the age at which she met Ms. Maxwell, 9 etc., but certainly if you're talking about an individual's 10 state of mind, if they are presented as an engaged person 11 when's living alone with their fianc, it certainly suggests 12 that they are 18 or older. Because it does not relate to any 13 evidence of her sexual behavior or predisposition, I don't 14 think Rule 412 covers it either. 15 Finally, your Honor, there are two instances -- and 16 your Honor has heard about these obliquely during the course of 17 litigation in this case -- where plaintiff made prior false 18 allegations of sex assault, when she was 14 years old. And in 19 those same committee notes, your Honor, that I just referred 20 you to under Rule 412, is the following statement: "Evidence 21 offered to prove allegedly false prior claims by the victim is 22 not barred by Rule 412." So right there in the committee 23 notes, which the Supreme Court has directed are to be given 24 weight, controlling weight, and authority, prior false claims 25 are not covered by the rule. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794525

(212) 805-0300 EFTA00794526

81 H3ulgiva 1 There were two instances, your Honor. One was in 2 1998, when plaintiff was a runaway from home, using drugs and 3 alcohol, and while she was living with Tony Figueroa, she went 4 out partying with two boys, and later, after she was in rehab, 5 weeks later, after she was in rehab not voluntarily, by the 6 way, her mother took her against her will and put her in 7 rehab she made an allegation that that incident involved 8 nonconsensual sexual contact. That was made in about February 9 of 1998. There was a ten-month investigation. The boys were 10 interviewed. And ultimately the DA in that case found that 11 Ms. lacked credibility and they had a low likelihood of 12 success at trial and they decided to drop the charges against 13 the boys. And that came after they had interviewed her a 14 number of times. 15 The second incident, your Honor, is a police report 16 from November of 1997. Again, plaintiff was drinking with her 17 friends, skipped school, according to her mother, she dropped 18 her off, and she went drinking and hanging out with her 19 boyfriend, who was a few years older. I think he was 17 or 18. 20 And she was found by the police, after some complaints by 21 neighbors, drunk in the backyard of a home. And she was on the 22 ground in a simulated sex act with her boyfriend, the person 23 she described as her boyfriend, and later said that she had a 24 consensual sexual relationship with. When she was found, she 25 was extremely intoxicated. And she made two statements that SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794527

(212) 805-0300 EFTA00794528

82 H3ulgiva 1 are noteworthy on this topic. When the police came, she said 2 to one of them, "If you don't tell my parents, I will," and she 3 used an expletive, basically saying, I'll engage in sexual 4 contact with you, Mr. Police Officer. That was one statement 5 made in the police reports. Later, when she was in the 6 ambulance, going to the hospital for her intoxication, she made 7 an allegation that she had been subjected to nonconsensual 8 penetration by her friends, or one of the boys there. It's a 9 little unclear. And your Honor, she later was interviewed by 10 the police and recanted that allegation. She said that she had 11 not been subjected to any nonconsensual penetration. 12 Your Honor, I understand that these are not pleasant 13 topics, but these are two instances in which plaintiff, prior 14 to ever meeting Ms. Maxwell or Mr. Epstein, made very serious 15 allegations about individuals and either, in the first case, 16 the DA found she lacked credibility or, in the second case, she 17 changed her mind and said it didn't happen, what she had 18 earlier said did happen. Your Honor, she did not disclose any 19 of these to her psychiatrist, who, as I just mentioned, had 20 found that she had preexisting PTSD, and so it is also 21 important to note that in the findings he has made about 22 possible sources of PTSD, it did not include this information. 23 However, I believe that Rule 412 specifically allows for 24 evidence of false prior claims by the victim and so I believe 25 that's what we have here. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794529

(212) 805-0300 EFTA00794530

83 H3ulgiva 1 It also is important for a jury to understand, because 2 they might not, that someone who is 14 years old or 15 years 3 old can lie about these things. Not only did she lie about 4 this. Her boyfriend, for example, Mr. Ostrich -- or excuse 5 me -- her fianc, Mr. Ostrich, said that she had been lying to 6 him at that time. She had been lying about where she was. She 7 told him she was working, and she wasn't; she was with Tony 8 Figueroa. Tony Figueroa later became her boyfriend. She broke 9 up with Mr. Ostrich and Tony Figueroa moved into her apartment. 10 So Tony Figueroa is someone plaintiff had a consensual sexual 11 relationship with during the same time she claims that she was 12 sexually trafficked. And so these people are percipient 13 witnesses to what plaintiff did or didn't say or places she did 14 or didn't go, but they are also people to whom plaintiff held 15 herself out, in Mr. Ostrich's case, as her fianc; in Tony 16 Figueroa's case, as her boyfriend. We would ask that the 17 evidence related to the Eppinger materials, Ostrich, Figueroa, 18 and these two police incidents, be admitted at trial. 19 THE COURT: As to Ostrich, did I understand correctly 20 that what you want to present there is statements by the 21 plaintiff during the period that this relationship, while she 22 was, according to her, in the employ of Epstein? 23 MS. MENNINGER: Exactly. He is someone who she was 24 living with and engaged to at the time she says she met Maxwell 25 and Epstein and she didn't tell him about being a sex slave, I SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794531

(212) 805-0300 EFTA00794532

84 H3ulgiva 1 think is the fairest way to characterize the evidence. 2 THE COURT: Yes. Okay. 3 MS. SCHULTZ: Your Honor, this is a classic Rule 412 4 situation here. Defendant is doing an old routine trying to 5 blame the victim by introducing evidence of other sexual 6 conduct. These tactics are expressly forbidden by Rule 412's 7 rape shield law. 8 Let's take a moment to talk about the committee notes 9 there. Defendant did not issue a statement alleging sexual 10 misconduct here. She was denying Ms. allegations of 11 being abused by her, so this is not a situation where someone 12 says, "that woman is a prostitute," and then to prove the truth 13 of that statement, you have to introduce evidence of her being 14 paid for sex. That's not what's going on here. And none of 15 these things that counsel for defendant seeks to introduce 16 makes it more or less probable that defendant was telling the 17 truth when she issued her defamatory statement, which is the 18 claim at issue here. 19 The first thing I would like to address specifically 20 is the Eppinger experience. Plaintiff is not relying on that, 21 nor relying on Kliman's evaluation of that, to claim damages. 22 She's not relying upon that at trial and not presenting that 23 that at trial. The only claim for damages in this case relates 24 to defamation in 2015 perpetrated by defendant. Any marginal, 25 peripheral value, probative value here is highly outweighed by SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794533

(212) 805-0300 EFTA00794534

85 H3ulgiva 1 the prejudicial effect because it makes her look like a person 2 of ill repute. Frankly, they're trying to paint her as a 3 promiscuous person. So we're not presenting anything on that 4 at trial. 5 THE COURT: Well, you're presenting Kliman. 6 MS. SCHULTZ: We're presenting Kliman but not his 7 opinion with regard to Eppinger. And we're not claiming 8 damages on that. 9 THE COURT: But it's in the report. 10 MS. SCHULTZ: He did a full psychiatric report of 11 Ms. She's not claiming damages for every single 12 psychiatric event that happened in her life. She's claiming 13 damages for one. 14 THE COURT: Counsel said, and it was my recollection 15 as well, that she did indicate that she had previous PTSD. 16 MS. SCHULTZ: Right. For which we're not claiming 17 damages. Plaintiff could have all kinds of problems, but 18 that's not what the case is about. 19 THE COURT: Hold on just a second. You're telling me 20 you're not claiming PTSD? 21 MS. SCHULTZ: Not where Eppinger is the source of 22 that. We're claiming damages only related to defendant's 23 defamation. 24 THE COURT: Yes, yes, but you understand their 25 position -- okay. That's one thing, defamation. Yes. But SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794535

(212) 805-0300 EFTA00794536

86 H3ulgiva 1 there's another cause for this. 2 MS. SCHULTZ: I think you have to keep in mind that 3 this is defamation -- 4 THE COURT: No. 5 MS. SCHULTZ: Sorry. 6 THE COURT: The value as against the prejudice, that's 7 a different argument. I understand that. 8 MS. SCHULTZ: And also, your Honor, the PTSD that 9 arose out of the Eppinger event was something 17 years ago. 10 The psychological damage from defamation is something that 11 arose two years ago. That goes to the weight of the evidence 12 as well. 13 THE COURT: Well, yes. All right. 14 MS. SCHULTZ: With regard to the Churcher articles -- 15 THE COURT: The point about Eppinger -- it's probably 16 in the papers -- what age? 17 MS. MENNINGER: She said 1999, your Honor, which is 18 also when she said she met Mr. Epstein and Ms. Maxwell. 1999. 19 THE COURT: What? 20 MS. SCHULTZ: She was 15 years old in the police 21 report. It says she was later identified as 22 and she was in fact 15 years old. 23 THE COURT: Okay. 24 MS. SCHULTZ: So we're also dealing with a child, 25 which is obviously something that would be very prejudicial. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794537

(212) 805-0300 EFTA00794538

87 H3ulgiva 1 With regard to the argument that you heard from 2 defendant's counsel regarding Churcher articles, where this is 3 mentioned, again, the prejudicial effects of admitting this far 4 outweigh any probative value. These are peripheral issues. I 5 wouldn't even categorize them as that. These are so far afield 6 of the case that's being tried that they're not relevant. 7 They're being introduced to make her look like a bad kid. 8 Also, with regard to her romantic relationships as a 9 young teenager with Mr. Figueroa and Mr. Ostrich, you know, of 10 course Ms. would not object to evidence showing her 11 whereabouts, but defendant wrote an entire brief and just 12 presented about her cheating on one of them with the other. 13 That testimony about cheating comes squarely under 412, and any 14 probative value is far outweighed by the prejudicial effect. 15 Again, this is a 2015 defamation claim related to sexual abuse 16 by defendant. The shifting affections of a teenager with her 17 boyfriend and another boyfriend is peripheral at best. It's of 18 no probative value here. It does not prove the truth or 19 falsity of defendant's statement. 20 With regard to the police report, first of all, there 21 is no exception to the hearsay rule that would allow those to 22 be admitted into evidence at this trial. So already I think 23 that's a nonstarter right off the bat. But most importantly is 24 that these are not false allegations of rape. The police 25 reports of course speak for themselves. And if your Honor were SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794539

(212) 805-0300 EFTA00794540

88 H3ulgiva 1 to allow questioning about this at trial, Ms. could 2 prove that she was raped here at 14. You heard defendant's 3 counsel say that she was intoxicated to the point where she 4 needed treatment. The police report goes a little bit further. 5 It says she could not walk. A person that intoxicated cannot 6 give consent to sex under Florida law or, frankly, any law that 7 I know of, any state law. Excuse me. There are also signs of, 8 you know -- she's also 14 years old, so we have statutory rape 9 implications there. There's evidence in the police report of 10 forcible rape, including internal blood and external abrasions 11 and physical injuries around areas of penetration. So here you 12 have a person lacking the capacity to consent because of 13 extreme intoxication and age and signs of forcible rape, and 14 Ms. can -- I think the document speaks for herself that 15 she could prove at trial that this is a true statement that she 16 gave that she did not have sex according to her own volition 17 there. 18 And that would take the trial down a very different 19 road. It would waste time, proving that this is true, and it 20 would be confusing to the jury, because the perpetrator is 21 not police reports are not part of this case. 22 The same thing with the second one. You heard 23 defendant say that a DA, a district attorney, found that she 24 was not credible. That's not what the police report says. 25 That is a conjecture by defendant's counsel. She has no idea SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794541

(212) 805-0300 EFTA00794542

89 H3ulgiva 1 who made that determination, when, based on what evidence or 2 anything like that. 3 That circles back to the hearsay problems that are 4 inherent in these two police reports. There are no exceptions 5 under which they come in. Defendant's brief is silent on that. 6 Another thing that defendant's briefs are silent on is 7 the fact that there are no other cases, in all these pages of 8 briefing, where a court has allowed this type of evidence to 9 come in. This is a classic Rule 412 case, trying to dirty up 10 the victim of sexual assault, and it's prohibited by law. And 11 defendant's counsel said, oh, this isn't about sexual assault. 12 I heard you question that as well. But the underlying claim 13 here is that defendant defamed Ms. when she called her 14 a liar about speaking out about her sexual abuse. So sexual 15 abuse and sexual misconduct is central to this case. I don't 16 think you can take that away. 17 So I think that the Rule 412 absolutely applies in 18 this case, but even if it doesn't, this is a tangent, to say 19 the least, and should be precluded under both Rule 401 and 20 Rule 403 because it's nothing more than just trying to make her 21 look like a bad child in front of the jury and to distract from 22 the issues that actually go to the claim of this case. 23 MS. MENNINGER: Plaintiff brought a lawsuit based on 24 defamation, based on a statement that her claims about being a 25 sexual abuse victim were not true. She took Eppinger materials SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794543

(212) 805-0300 EFTA00794544

90 H3ulgiva 1 and gave them to her expert Dr. Kliman, and Dr. Kliman included 2 them in his report. She also included her story about Ron 3 Eppinger in stories that she sold to the media. So your Honor, 4 reflect for one minute. Do you remember an hour ago when 5 plaintiff's counsel handed you a book that had the Sharon 6 Churcher articles in and they argued to you, hey, that Jane Doe 7 102 is mentioned in that Sharon Churcher article and therefore, 8 Ms. Maxwell's denial about that statement somehow related to 9 the Jane Doe 102? Do you remember that argument? That's the 10 same article that has Ron Eppinger in it. So what plaintiff 11 would like to do, I guess, is, when we start talking about the 12 Sharon Churcher article, they're just going to scratch out the 13 part where plaintiff herself told the story about Ron Eppinger 14 and Ms. Maxwell denied it in a pleading and then they gave that 15 same information to their expert and we'll just ignore that 16 part of his report that relied on it. I don't understand this 17 kind of litigation, your Honor. If you're going to bring a 18 lawsuit, put your reputation at issue -- and by the way, all of 19 this stuff that's available on the internet goes to her 20 reputation, and whether her reputation was damaged by any 21 statement from Ms. Maxwell. You're going to put all that story 22 on the internet, you're going to give it to your expert, and 23 then you don't want us to be able to cross-examine about it and 24 say well, wait a second, you already had PTSD, didn't you, and 25 you're the one who said you already had PTSD when you talked to SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794545

(212) 805-0300 EFTA00794546

91 H3ulgiva 1 your expert in a video clip? You know, that's been put in with 2 his commentary. 3 Your Honor, secondly, saying that the Churcher 4 articles are prejudicial, in a defamation case -- and she's the 5 one that incited that entire media spectacle on herself by 6 getting paid to give those stories -- just belies common sense 7 and the rules of evidence. 8 Your Honor, the police reports -- I think I just heard 9 Ms. Schultz say that I was inaccurately reciting what they 10 said, so I will just read from the document itself, a certified 11 copy, according to the sheriff of Palm Beach. It says, "I 12 received a letter from assistant state attorney Teresa Bowman 13 concerning the filing disposition on this case. Bowman's 14 letter said that this case is no-filed due to the victim's lack 15 of credibility and no substantial likelihood of success at 16 trial." So I don't believe I have misconstrued the state 17 attorney's letter. I'm reading from the document that is a 18 certified copy. 19 I believe there was mention of hearsay rules, your 20 Honor. Admissions by a party are not hearsay under the rules, 21 your Honor, so all of Ms. statements in these police 22 reports are admissions by a party. They are not, your Honor, 23 hearsay by definition. 24 Another important point, your Honor, and it goes to 25 plaintiff's reputation, the 1998 event I just talked about, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794547

(212) 805-0300 EFTA00794548

92 H3ulgiva 1 that was also in a news article published in February of 2015. 2 The information was apparently obtained by a news reporter and 3 published on the internet. And the title of the article I 4 think was, "Friends describe a sex kitten," and it goes into 5 the fact that Ms. was found not credible by the state's 6 attorney's office. So again, your Honor, when plaintiff 7 chooses to sell her story to the internet and then she 8 publicizes her story and she gives it to her expert and she 9 talks about her boyfriends and her fianc and she talks about 10 her sexual history and she's asking a jury to decide whether 11 her reputation has been damaged, the jury has every right to 12 hear everything else that was on the internet, including Ron 13 Eppinger and sex kitten and police reports at which she was 14 found to lack credibility. 15 The import of all of these rules, including 405(b), 16 are that when someone puts their reputation at issue and 17 they're asking for damages to their reputation, a lot more 18 things come into evidence than otherwise might be the case. 19 This is exactly that kind of case, your Honor. This is a case 20 that turns on plaintiff's claim that she was a victim of sex 21 abuse by my client, Ms. Maxwell, and here we have evidence: (1) 22 that challenges her damages calculation by Dr. Kliman; (2) that 23 challenges her reputation on the internet and whether there was 24 any reputation that could be harmed by a statement by 25 Ms. Maxwell; and (3) we're talking about whether or not she had SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794549

(212) 805-0300 EFTA00794550

93 H3ulgiva 1 preexisting conditions. Those are the at-issue points that 2 plaintiff chose when she brought this particular lawsuit, your 3 Honor, and the evidence challenging those assumptions are what 4 we are seeking to introduce. 5 THE COURT: Thank you. I look forward to seeing you 6 tomorrow morning. 7 ALL COUNSEL: Thank you, your Honor. 8 (Adjourned) 9 MR. INDYKE: Your Honor? Your Honor, may I please 10 approach. My name is Darren Indyke. I'm an attorney admitted 11 in New York and the general business attorney for Mr. Epstein. 12 I'm sorry I'm late and I'm sorry I came after you had gone 13 through that beginning decision about the issue, but I only 14 found out this morning -- and ran here from New Jersey -- that 15 this case was going to be heard today. The lawyers had filed 16 the motion to quash, Martin Weinberg and Jack Goldberger. Jack 17 Goldberger is a Florida lawyer. He's in Palm Beach right now. 18 Martin is in Boston. Martin, I think he sent an email to 19 chambers. And what he told me before I came here -- and turned 20 off my cellphone so I haven't had further discussions with 21 him -- was that he had a medical appointment tomorrow but if he 22 absolutely had to, he could find a way to cancel it, but he was 23 not really comfortable with doing a hearing without having any 24 kind of prior notice of it and would prefer if we could do it 25 at the first opportunity in April. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794551

(212) 805-0300 EFTA00794552

94 H3ulgiva 1 THE COURT: Do I understand you represent Epstein? 2 MR. INDYKE: As a general basis. I'm not a litigator. 3 I don't really do this sort of thing. And I apologize if I'm 4 stumbling. I just don't do this -- 5 THE COURT: It just shows that you're a very smart 6 lawyer not to be a litigator. 7 MR. INDYKE: Thank you. 8 THE COURT: On Epstein's behalf, you're asking that 9 the motion to quash be adjourned a week, is that correct? 10 MR. INDYKE: Yes, your Honor. 11 THE COURT: Well, what do you all say? 12 MR. PAGLIUCA: We don't object, your Honor. 13 MR. EDWARDS: Sure, no objection, your Honor. 14 THE COURT: The 5th. 15 MR. INDYKE: Thank you, your Honor. 16 MR. EDWARDS: Your Honor, I'm sorry. Do you have ten 17 seconds for me to answer a question that you asked me earlier 18 and I wasn't able to answer? It only relates to whether or not 19 I'm making a leap that Ghislaine Maxwell knew of the sex 20 offender registration and the plea agreement. Both the fact 21 that Jeffrey Epstein was a registered sex offender and the plea 22 agreement, the fact that he pled and what he pled to and the 23 number of charges are in the Churcher articles in 2011 to which 24 she responded. And that's all I wanted to add to that point, 25 that it was less of a leap. Thank you, your Honor. (Adjourned) SOUTHERN DISTRICT REPORTERS, P.C. EFTA00794553

(212) 805-0300 EFTA00794554

EFTA00794555