1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 101 MR. CASSELL: All right. Well, we thought, when we filed our response, they continued to oppose it. If they had just stipulated, you know, I wouldn't be taking your Honor's time. But this is where I think they're taking a narrow uncontested principle, that her net worth doesn't come in, and are going to try to use it to exclude evidence that Ms. Maxwell is making payments to the girls, that this mansion is a very - THE COURT: Well, okay. I don't think so. MR. CASSELL: Let me just make sure that I have on the table the things that we want to introduce. For example, Mr. Epstein purchased a helicopter for Ms. Maxwell, and they might say, oh, well, that shows financial status or something. We think that shows a very close connection. Well, the last one and perhaps the most controversial one in connection with this case is the townhouse. It is our belief that a -- THE COURT: Well, wait a minute. What's the basis of your belief? MR. CASSELL: The basis for our belief is, I believe they've conceded that there was a sale of a $17 million townhouse in 2016. THE COURT: Okay. Is it the defendant's townhouse? MR. CASSELL: Yes. So the question is -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612350

1 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 102 THE COURT: So that's part of her net worth. I mean, that's part of the financial part. I don't see how that gets into the liability case. MR. CASSELL: Right. So Epstein was the one who provided the loan to get that -- THE COURT: Says who? MR. CASSELL: Ms. McCawley, who took Maxwell's deposition, is advising me that during Maxwell's deposition, she conceded that. THE COURT: Well, all right. Okay. But that isn't financial information. That's the relationship between Maxwell and Epstein. MR. CASSELL: Right. I think you and I are on the same page. My concern is that we may, as on other issues, may not be on the same page with the defendant. THE COURT: I don't think so, but maybe I'm wrong. MR. CASSELL: There's one other point, if I can just be heard on the townhouse. The townhouse was sold at a time shortly after Ms. Maxwell is discussing with her advisers, hey, I could get sued for libel. We believe that transferring $17 million outside the jurisdiction of your Honor -- THE COURT: Tell me about that after you've got a verdict. MR. CASSELL: All right. But we want to introduce it during the trial to show consciousness of guilt, that she is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612351

1 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 103 transferring assets away from the jurisdiction of the court because -- THE COURT: She sold the house. MR. CASSELL: Right. After she wrote an email that said, hey, I could get -- THE COURT: You can't argue, I don't think, that that's an admission. MR. CASSELL: We believe it goes to consciousness of guilt, and we've cited a case in our brief to that effect. But I think if you have a difficulty with that small piece of our argument, I mean, I think the rest of it is really, you know, the meat and potatoes here, so -- THE COURT: Okay. Yes. MR. PAGLIUCA: Your Honor, I'm going to not try to belabor this, but I have to respond to some of the points, just so that the record is clear. The language that we proposed to the Court about the financial status comes from the very cases that are in the Second Circuit, and that's the words that the Second Circuit and district courts in the Southern District use. And I quote from Tillery: No evidence as to defendant's financial status may be presented to the jury during the first phase of the trial by either of the parties to this action. And the Second Circuit says that that's the preferred method. Mr. Cassell, I think, knowing that he's losing this battle, then tries to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612352

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 H3v1giu2 change it. But first of all, let's talk about this consciousness of guilt issue. And not only the supposed facts behind this but the law that they cite. There are references to a New York Post article that is the -- THE COURT: Well, that's no good, obviously. MR. PAGLIUCA: Of course. And then there's a reference to Radar Online. That's their entire evidentiary basis for the proffer that they just made to you, your Honor, about this townhome. It doesn't fly. And I don't need to spend -- THE COURT: Well, wait a minute. There was a little bit more. There was Maxwell saying she got a loan, they say, from Epstein to buy the house. MR. PAGLIUCA: What she said, your Honor -- and I wrote it down because I looked at the deposition transcript last night. First of all, I think it's important for this discussion, we allowed questions relating to anything financial with Mr. Epstein. So the one instruction that I gave to Ms. Maxwell during this deposition was, anything they ask you about Epstein is fine. I'm not going to let you talk about your own personal financial information because it's not discoverable at this point. And so they had fair opportunity to ask her questions. They asked her questions about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612353

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 H3v1giu2 105 townhome, and she said part of it was a loan from Mr. Epstein that had been paid back, and that's going to be years ago, before any of the defamatory allegations arose in this case. That's my understanding of the factual basis here. So we can I think deal with that particular issue, you know, if and when it comes up, but what I'm saying to the Court -- I mean, the Court and I are on the same page -- the sale of the townhome, the amount of the sale of the townhome, you know, what did or didn't happen to the money from the sale of the townhome, those are all off limits during the liability phase of the trial. THE COURT: Well, correct me if I'm wrong. We don't have any evidence as to what happened to the proceeds of the sale. MR. PAGLIUCA: We don't. THE COURT: Oh, okay. MR. PAGLIUCA: There is none. THE COURT: Okay. MR. PAGLIUCA: And the notion that this money went outside of the jurisdiction of the court is pure fiction. Frankly, unless it went to some country that I'm unfamiliar with, I think the jurisdiction of this court extends pretty far. THE COURT: I think that's for another day. MR. PAGLIUCA: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612354

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 106 The last point I want to make, your Honor, on this issue of consciousness of guilt relates to the one case that they cite for the proposition that there is some ability to have a consciousness of guilt theory in a civil case. They cite a Second Circuit criminal case in which the defendant was a man named Amuso. This is at 21 F.3d 1251, and it's a 1994 case. Mr. Amuso was a leader in the Lucchese crime family who, over a course of time, ordered 14 murders and then absconded from the jurisdiction during the trial of a number of co-defendants. And it was called "The Windows" case here in New York, and you may remember it, your Honor, because it was the Lucchese crime family that was controlling the replacement window unions in the city of New York. So Mr. Amuso goes to trial, and the government requested and received an instruction to the jury that said not only his flight was consciousness of guilt but the length of the absence of his flight was consciousness of guilt. And in fact, the Second Circuit reversed that instruction and disapproved it in that criminal case but didn't reverse his conviction because the evidence of guilt was overwhelming. So the one case that they cite for this proposition in fact is inapposite to the position that they're taking here today. So I think your Honor and I are indeed on the same page here, and I'd ask that the Court simply apply the law in Tillery. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612355

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 107 Oh, Ms. Menninger reminds me, your Honor -- and I think the Court and I are on the same page on this as well -- the tax argument made by Mr. Cassell. Indeed, Ms. Maxwell and the plaintiff are not on the same footing in this case with regard to who put their reputation at issue, who is claiming emotional distress damages, and plaintiffs are in a much different position than defendants when it comes to cross-examinations about these issues, particularly in defamation cases, because as Ms. Menninger pointed out earlier, under Rule 405, everything that impacts the plaintiff's reputation in the community, including the failure to follow laws, is the subject of cross-examination. So the argument that what is good for the goose is good for the gander in a defamation case simply doesn't apply when you're talking about damage issues and reputational issues. Thank you, your Honor. MR. CASSELL: Could I just have 15 seconds, your Honor? THE COURT: No. MR. CASSELL: All right. Thanks. THE COURT: Next. MR. PAGLIUCA: Your Honor, we could next take up the issue relating to the police reports which I have as defendant's motion in limine to exclude police reports and other inadmissible hearsay at 677, response at 747, and then. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612356

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 H3v1giu2 108 reply was also filed yesterday. THE COURT: Okay. Yes. MR. PAGLIUCA: Your Honor, these reports, that are loosely described as police reports, encompass a one-year purported investigation by the Palm Beach Police Department into the affairs of Mr. Epstein roughly beginning I think in 2005 and going through 2006. The detective initially assigned to the case was a woman named and then Detective took over the investigation from Ms. Pagan. There were a number of things, according to the reports - although we don't really have any actual witness testimony, with current knowledge. The police did a number of things. They surveiled Epstein's house, they did trash pulls, and ultimately they executed a search warrant at Mr. Epstein's house. And that's sort of the totality of the investigation. I give you that as the backdrop, your Honor, because then next what seems to happen is very curious, in my = experience, and was testified to by Detective The police get crossways with the state attorney's office in Florida, and there is a complete distrust between the two agencies. As a result of that -- and there's a bunch of in-fighting that goes on between these two agencies. The police make the decision to, in some fashion, turn over everything that they have to the FBI. And as best I can figure it out, the FBI issued a grand jury subpoena, or the U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612357

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 H3v1giu2 109 Attorney's Office, in the Southern District of Florida, issued a grand jury subpoena for the entirety of the Palm Beach Police Department's evidence relating to the Epstein investigation. So as we sit here today and indeed for the last ten years since 2006, the Palm Beach Police Department has not been the custodian of any of this evidence. And so that's the factual backdrop to then what becomes continuing problems with the types of evidence that I anticipate the plaintiffs are going to try to introduce in this case. The first is these police reports themselves. And that is about 87 or 88 pages of documents, depending on which iteration of these police reports someone is looking at. That essentially runs through the course of the investigation. And I'm sure things that your Honor's seen before, you know, police officer does something, they put it down on a piece of paper, somebody puts it into a system, and then that's where it goes. But the problem here, fundamentally, with these police reports -- THE COURT: Let me back up just a moment. MR. PAGLIUCA: Yes, sir. THE COURT: How are these going to be entered into evidence? They're not self authenticating. MR. PAGLIUCA: They're not. THE COURT: So how are they going to be presented? MR. PAGLIUCA: Good question, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612358

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 1_3 MS. McCAWLEY: Do you want me to address that, your Honor? I mean, it's our evidence that we're trying to get in. Or do you want me to wait? THE COURT: Well, you don't know. The defense doesn't know. MR. PAGLIUCA: There is no way. There is no way to present these documents, your Honor. THE COURT: Yes. Okay. All right. Because there's no DOJ witness listed. MR. PAGLIUCA: There is no record custodian at all for these documents. Detective in his deposition -- and you have this, the relevant answers to these questions -- acknowledged that they don't have any of this evidence. And so that's going to be, you know -- you have seen, in multiple filings from the plaintiffs, they attach excerpted documents containing what they say are phone messages secured from the trash pulls. So that would be an example of evidence for which there is no record custodian. Frankly, I don't know who the source of any of that information is. This is yet another piece of information that has appeared, I'm presuming through Mr. Edwards getting it somehow, you know, in relation to some other case and then it appears in discovery in this case. And what it looks like is, you know, a number of, you know, what they say are photocopies of message pads from Epstein's trash. But there is no person who will say, this particular piece of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612359

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 H3v1giu2 paper came from Epstein's trash in the first instance. There is no person that will say, we kept these documents and we have the originals and you can come look at them and you can test them and feel them. There is no person that will say any of that because it went to the grand jury and presumably, under Rule 60, it's never coming out of the grand jury again. So the other point about these message pads is, I don't to this day know whether that's just hand-picked portions of whatever plaintiff's counsel got years ago or it's the entirety of what, you know, Palm Beach did or didn't do, but when I asked Detective those questions in his deposition, he said, I can't tell you if that's everything. I just got handed this stuff by plaintiff's counsel, you know, in the course of this deposition, and that's all I can tell you about it. So that's another piece of this that's problematic for the plaintiffs. There's another issue that relates to a transcript of a witness, Ms. , and the plaintiffs, I think, want to try to introduce that transcript or, alternately, what they say is an audio recording of an interview with her, and I'm not sure which they are trying to introduce, but there are problems either way. The transcript, what I will call the transcript, was in fact not prepared by the Palm Beach Police Department. According to Detective_he had never seen it before, during his deposition, and he surmised that it had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612360

1 2 3 4 H3v1giu2 1_2 been prepared by the state's attorney's office but he didn't know. So what happens then with this transcript is, there is an attempt at a deposition of Ms. in Miami, this summer, and Ms. comes in and she sits down, and she doesn't want 5 to answer any questions about anything, and she says, I don't 6 remember anything about any of this. Her lawyer says, she 7 doesn't remember anything about any of this and she spent the 8 last ten years forgetting about all of this and she's not going 9 to remember anything about this. Mr. Edwards then puts the 10 transcript in front of her and she doesn't look at it. She 11 doesn't even look at the transcript. She doesn't turn the 12 page. She doesn't read any of it. There's a question asked at 13 some point later: Isn't it true that everything you said in 14 the police department was true? And then shortly after that, 15 the deposition ends. And they're trying to say that that is a 16 sufficient factual basis and an evidentiary basis for the 17 admission of this transcript, which is, you know, unsponsored 18 hearsay. 19 There's a similar problem with this recording because 20 Ms. never listened to the recording, never authenticated 21 the recording. And so there's no evidence whatsoever that it's 22 Ms. statement or that it was subject to any 23 cross-examination. 2.1 So to try to get around all of these evidentiary 25 problems, now what's being advanced by the plaintiffs is, well, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612361

H3v1giu2 1_3 1 we're not offering any of this for the truth of the matter 2 asserted. So 87 pages of police reports, a hundred pages or 3 however many there are of trash, you know, witness transcripts, 4 no, no, no, no, none of that is being offered for the truth of 5 the matter asserted, we want to offer it to show Ms. Maxwell's 6 state of mind when she issued her statement through Mr. Barden 7 and Mr. Gow. So the huge problem with that, your Honor, which 8 we've already dealt with, is, Ms. Maxwell has no knowledge of 9 what's in these police reports, the trash pulls, any of these 10 things, and so as a matter of law, this can't be part of her 11 state of mind. 12 What is instructive on this point, your Honor, I went 13 and read every single case that plaintiff's counsel cited for 14 this proposition that it is state of mind, and what's great 15 about these cases, frankly, every single one of them, whoever 16 the statement is being introduced on behalf of, or against, 17 knows about the statement. So when you look at their papers, 18 they cite United States v. Gotti for the proposition that it 19 goes to state of mind. Well, you know who Mr. Gotti is, and 20 Mr. Gotti was charged with witness tampering. Mr. Gotti wanted 21 to introduce some wiretapped statements that the FBI had, where 22 he was talking to an informant and telling the informant things 23 that Gotti said went to his state of mind. Well, the Second 2.1 Circuit said, yes, you can do that, Mr. Gotti, first of all, 25 because the government's introducing part of these transcripts, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612362

H3v1giu2 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 second of all -- so that's a rule of completeness, and second of all, you were there and you heard it and therefore, it would go to your state of mind and not for the truth of the matter asserted. The next case is United States v. Dupree. That's another criminal case in this circuit, where a bank fraud defendant was the subject of a temporary restraining order issued to that defendant, okay? So, you know, he has a temporary restraining order, you can't take any money out of this bank unless you do X, Y, and Z. Well, he took the money out of the bank without doing X, Y, and Z, and when he came to trial in his criminal case, the government was allowed to introduce that restraining order because it was his restraining order, he knew about it, and it showed his willful intent to defraud as part of the bank fraud. So that's that case. Arista Records, LLC v. Lime Group, LLC was another case they rely on. Again, these are emails that are being talked about that were written by the defendant's employees and then the responses to those emails. So clearly the defendants LLC had corporate knowledge of those things. Screenshots of software programs, statements made by an agent of the defendant, those are all the things that we're talking about in that case, and so there's actual knowledge of the entity of those statements, which then can go for state of mind. There are two more cases. Crescenz v. Penguin Group, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612363

H3v1giu2 1_5 1 and the case says, it's undisputed the defendant had actual 2 prior knowledge of the issues, of the at-issue statements that 3 were offered by the defendant. Again, the statements were made 4 to Crescenz. 5 And then the last case is a 1983 case, Tierney v. 6 Davidson. That involved civil rights violations and objective 7 reasonableness by the officers who conducted a search of a 8 building. I think the Court knows from doing this kind of work 9 that pretty much anything in an officer's head is allowed in a 10 qualified immunity case, because whether the officer did 11 something that was objectively reasonable or not depends on 12 what's in the officer's head, and so there is (A) an exception 13 in these kinds of cases, but (B), in fact, the evidence that 14 was being discussed in the qualified immunity situation related 15 to statements that the officers had heard, which formed the 16 basis of why they went into a building. 17 So in each and every one of these cases and all cases 18 that deal with state of mind, the person who it is being 19 introduced either for or against, not for the truth of the 20 matter asserted but for their state of mind, has to know about 21 it. 22 You have attached to our reply an affidavit from 23 Ms. Maxwell who says she's never read any of these police 2.1 reports prior to January 2015. And there is good reason for 25 that, your Honor. It's not easy to get these police reports. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612364

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 H3v1giu2 116 As you've heard, the chain of custody behind these things after 2006 is a little sketchy. And, you know, it requires some effort. And so, you know, ordinary folks I don't believe are going to be, you know, rooting around trying to ferret out police reports from South Florida. Even if you get them, they are heavily redacted, and so when one looks at them, it's virtually impossible to tell who's at issue, who's saying what about whom, because there are lots of blackouts through these police reports. We managed somehow -- and frankly, I don't even know how -- to get an unredacted copy, and Detective was surprised when he saw the unredacted copy because he said, we always redact these things. And so I'm unclear as to how ours is unredacted, but in any event, there is one out there. But I don't know how we got it. The other point on this, your Honor, is, again, there is some liberty taken in the plaintiff's papers about what Ms. Maxwell said or didn't say in her deposition about these police reports, and they try to make hay over, she knew about the police reports by the selective presentation of that deposition testimony. And I've cited the actual quote for you in the reply brief, but what is notable, in my view, is that when Ms. Maxwell is presented with these police reports, it is for the first time at her deposition by Ms. McCawley, and there is an exchange in the transcript where Ms. McCawley and Ms. Maxwell are going back and forth and Ms. Maxwell says, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612365

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 117 know -- she's holding these police reports and she says, I know there is a police report. We go on 300 pages or so in the deposition, and it is clear from the transcript that when we get back to the police report issue again, Ms. Maxwell is being asked questions by Ms. McCawley. Ms. McCawley says -- and this is at page 169, lines 4 through 8 -- "Now that you have the police report that I showed you this morning that you had an opportunity to look at it," and Ms. Maxwell responds, "You gave it to me. I did not look at it." And there was no really other questioning at the deposition about Ms. Maxwell's knowledge of these police reports. So the record on this issue, your Honor, which is going to continue to be the record, is that Ms. Maxwell has no knowledge of this police report, the investigation, anything that's going on with Mr. Epstein substantively during this investigation by the Palm Beach Police Department. So that's why it's not admissible. They try to cobble together what they view as sort of indicia of she should have known about what's in these police reports, and they first of all say -- we get back to this Dershowitz joint defense agreement issue, which I touched on yesterday, but you're going to hear it again today, so I think it's worth mentioning again. And here are the quotes exactly from Mr. Dershowitz' deposition. Mr. Dershowitz -- somebody objects during this deposition, and then there's a colloquy. There's an assertion of privilege. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612366

H3v1giu2 118 1 There's a little bit more colloquy, and then Mr. Dershowitz 2 says: "This is a long time ago. My recollection is that very 3 early on there was a joint defense agreement between several of 4 the people who were of interest to the district attorney and to 5 the federal government. That's my recollection. And I would 6 only want to resolve doubts in favor of privilege." Then 7 Mr. Dershowitz says: "We can check further. I would be happy 8 to answer the question if it's not privileged." That's the 9 testimony that they say supports their assertion of this joint 10 defense agreement with Alan Dershowitz. 11 But there's more, your Honor. Mr. Edwards -- again, 12 who is a party in this deposition and not a lawyer -- chimes in 13 to the special master and Mr. Dershowitz: "Q. Ghislaine 14 Maxwell was never the target of the investigation, was she?" 15 Confirming and arguing that Dershowitz is wrong about this 16 joint defense agreement at the time. And Dershowitz is 17 admitting that he doesn't really know and we should check and 18 we'll get back and people can ask these questions if I'm wrong 19 about this agreement. 20 They also take liberty with Ms. Maxwell's discussion 21 in her deposition about her knowledge about what happened to 22 Mr. Epstein and what he pled guilty to. When you look at those 23 pages of the transcript, you know, she says, I know he went to 2.1 jail, and then there's a back-and-forth between Ms. McCawley 25 and Ms. Maxwell about what did he go to jail for, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612367

H3v1giu2 119 1 eventually Ms. Maxwell says, you know, I'm not really sure what 2 he went to jail for. It had something to do with, she 3 thinks -- Ms. Maxwell -- teenage prostitution or under-age 4 prostitution or something like that. That certainly doesn't 5 give you the ability then to ram in 400 pages of uncorroborated 6 hearsay under the idea that somehow this is notice to somebody. 7 And I think there is one other factual claim that they 8 make about, you know, what Ms. Maxwell should have known, which 9 is not the standard. It is not incumbent upon an individual 10 defendant to go investigate things. That's not the standard. 11 It seems to me that they have conceded that these 12 documents are hearsay because they're saying, we're not 13 offering them for the truth of the matter asserted; we want to 14 offer it for this knowledge theory that we have. 15 So I've briefed the issue about business records, 16 which they are not. I've briefed the issue about government 17 police records, which they are police records, but essentially 18 the same tests for business records applies to police records, 19 which is, you have to be under a business duty to record the 20 information, and court after court after court after court, 21 across the country, has said, people in police reports, like 22 witnesses, are not under a business duty as part of the police 23 department. So all of those statements, the second- and 2.1 thirdhand hearsay statements, are inadmissible, either as 25 government records or police records or whatever you want to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612368

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 120 call them. They're just simply inadmissible for the truth of the matter asserted. You know, there may be a few things in these police reports that someone could, if they had a record custodian available, try to offer into evidence, but we don't have that here. And so I think for all of those reasons, your Honor, this is a very strong motion that should be granted by the Court. MS. McCAWLEY: Good afternoon, your Honor. Thank you. The reason why they're battling so hard on this document is because it's so critical to the case. This is a police report that records numerous, over 20, under-age minors saying virtually the exact same story that my client gave about her abuse, over and over and over again. What they didn't say to you -- they skirt around Detective . You have his entire deposition transcript, which we've noted for next week, with all of his testimony. He took these statements. We went through the business records exception with him. He walked through, yes, I recorded this in the course of my work. We've got it in our papers. I did this under my duty. I interviewed these witnesses. I recorded it, etc., etc., etc., all in this document. I mean, with every document that's come up, they claim, particularly government documents, this is something that we've found out of thin air and that it has no value to it or trustworthiness. He sat in his deposition as the detective SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612369

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 H3v1giu2 121 who handled this entire investigation and walked through each of those people, your Honor, and walked through how he recorded it in this document. So this is authenticated through Detective , who is a witness in this trial, on our trial exhibit list. To be very clear, this document is so critical because it mentions Maxwell in it. It talks about Maxwell's stationery being at the house, it talks about other issues with respect to Maxwell. When I asked her at her deposition and I gave her this document -- and you can look at the testimony, your Honor, we want you to look at the testimony -- she says: I've seen it. Later in that deposition, they talk about her battling me over she wouldn't look at certain things I gave her, in front of her, right? So there was an attitude issue during that deposition that I had to manage. And that was what was coming up in that section. It wasn't that she didn't say she had seen it. But your Honor, we are allowed to put that in front of her, in front of the jury, and say: Did you know about this at the time in 2005 when you were photographed kissing Epstein on the day the investigation started? You were working for him. You've admitted that. You didn't know about all these little girls coming to the Palm Beach house that you were working at, that you claim you were the house manager for? We should be entitled to get this in -- THE COURT: That is for the truth of the matter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612370

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 122 MS. McCAWLEY: Whether she knew about it. That's not for the truth of the matter, your Honor. That's what she knew at the time, right, she made the statement, did she know about all these individuals in the police report, did she know about this. So that can be offered not for the truth but to show whether she knew about it. Whether she knew that at the time she was making that statement, it was false, because not only did my client get abused there but so many other girls as well. So, your Honor, that's part of it. And in your order, in your June 20th order, you said -- THE COURT: Excuse me. MS. McCAWLEY: Sure. THE COURT: You say the detective authenticated these documents. He didn't authenticate them in the sense of saying that these are part of the file. I mean, it's not that kind of an authentication. MS. McCAWLEY: It is, your Honor. There are two different things, and I'm jumping around a little bit, so that's my fault. I'm sorry. But there are a series of questions -- and I believe it's in our brief but it's also in our designations -- where we walked through with him how he conducted the investigation, how he recorded the information of these witnesses, the interviews of the witnesses, the fact that they were reported in this document, etc., in his testimony. So that's one piece. And that's why this could come in under SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612371

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 123 the business records exception. But even if it weren't to come in under the business records exception, it can come in not for the truth of the matter asserted but to show for knowledge. And you say in your June 20th order, "Notwithstanding the questions are directed to reveal relevant answers regarding defendant's knowledge of plaintiff's allegations, that knowledge goes directly to the truth or falsity of the defamation, a key element of plaintiff's claims." In other words, what Maxwell knew at the time she's making the statement goes to the truth of the falsity of those statements, and that includes this police report, your Honor, so we believe that it's critical evidence to show that. And you'll see that, again, she was working for the defendant at the time that this investigation happened. She has testified to that. She was on the flights with him at the time this was going on over 300 times during that period. THE COURT: You know, spare me the flights, okay? MS. McCAWLEY: Sure. Okay. THE COURT: I've heard that before. MS. McCAWLEY: Sure. I'm sorry, your Honor. I'll try to cut to the chase here. So certainly, you know, it's interesting, because you heard defense counsel here not too long ago saying that they wanted to get in police reports of an under-aged minor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612372

1 2 3 4 H3v1giu2 124 right? But now police reports are not allowed in at all, right? A police report where I've got the detective coming to testify about the police report that he took in his investigation, oh, but that can't come in. And what's 5 interesting is, they went through all of our cases but they 6 failed to look at their own cases, because Smith, which is a 7 case that they cite in their brief on trying to get the police 8 reports in, a Southern District of New York case, says that 9 this can come in. It says, "Statements in a police report are 10 not inadmissible hearsay where, as here, they are not offered 11 for the truth of the matter asserted but for purposes of 12 showing whether the arresting officer had the information 13 giving them probable cause in that instance." So what we are 14 doing here, your Honor, is putting forth this police report to 15 show whether or not Maxwell had the knowledge of that, which we 16 are entitled to ask her those questions at trial, your Honor, 17 and to utilize this police report in that regard. 18 So, your Honor, it comes in for two reasons. One, 19 under the hearsay exception, which is the business records 20 exception through Mr. testimony, which is detailed in 21 our briefs. He was deposed for a full day. He walked through 22 all of these documents in his investigation, and we laid out 23 that, the standard in there. He testified that it was a record 2.1 kept in the regular course of his work. He testified that it 25 was something he had to do in accordance with that work. He SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612373

1 2 3 H3v1giu2 125 testified that he was the primary author of that and that it had -- and of course it had the trustworthiness, your Honor. So we were very careful, because we knew how important this 4 document was, to walk him through that when we had him at his 5 deposition. And again, your Honor, those deposition 6 designations are set forth for next Wednesday. 7 THE COURT: How do we know that this is the total 8 record? Or is it the total record? We don't know. 9 MS. McCAWLEY: Well, testified -- we showed 10 him this document as an exhibit in his deposition, and he 11 testified regarding this being something that he recorded in 12 the course of his own work. 13 THE COURT: But it's part of the record. Is it all of 14 the record? 15 MS. McCAWLEY: Meaning all of the record of the entire 16 investigation? We have produced that in discovery, your Honor, 17 through the -- we have a FOIA response, which is how we got the 18 videotapes of them walking through the Palm Beach house, all of 19 the other materials related to the investigation. 20 THE COURT: I see. Okay. 21 MS. McCAWLEY: So then, your Honor, we deposed the 22 detective to try, of course, to establish that this was the 23 record to get into evidence. 2.1 Your Honor, they also mentioned -- and this is 25 actually in the in Coto motion, but they jumped to it so I need SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612374

H3v1giu2 126 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 to address it, and that is one of the witnesses in here, who was a minor at the time, also gave a recorded statement as part of that. We took her deposition, and they're, you know, in my view, vastly misrepresenting the deposition. And you can look at the quotes themselves, but she testified in great detail about the activity at the house, verifying that what she said in her recording and in the police report was in fact correct. And she is a witness on our trial list. She is a minor who was abused in the same manner that my client was. She was exposed to him on a number of occasions. And we have her testimony, and we have sought to enter that as a witness in this case. And again, that's in the in toto motion which I think is being heard next Wednesday, but just to address it, since they raised it. The other issue they raised are the message pads. These have come up from time to time in this case and come up through different witnesses. Now the message pads come in in a number of ways. One is Juan Alessi, who is one of the house butlers. He testified that those were the messages for which they recorded -- we showed him the messages. Yes, that's my signature. Yes, this is how we recorded our messages. He worked at the house. That was his duty to do those things. Maxwell's on those messages as well, so we intend to ask her about those, you know, were you having three girls come on this particular day, etc., etc.? So those are documents that should SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612375

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 H3v1giu2 127 come into evidence because they have been validated by an employee who works at the home and are things that should be able to be utilized at trial, and Maxwell should be able to be shown those and explain whether or not there is some issue with respect to those statements. So your Honor, that's all evidence that we do want to enter at the trial, and certainly we have done our diligence with respect to the police report to make sure that we do have Detective testimony on it. I submit if you review that, you will see the reason why that it should come into evidence. But regardless of the hearsay issue and the business records exception, again, as you said in your June 20th order, the point of defendant's knowledge at the time she made a defamatory statement is very significant in this case, so if she knew -- even if she didn't believe my client, if she knew that there had been a number of other under-age minors that were abused in this circumstance, to call my client a liar in the face of all that knowledge is something the jury should be able to consider. So that is a piece that is important and relevant to this case. And you can always give a cautionary instruction. If you're concerned at any level, as you know, you could add a cautionary instruction with respect to the police report. But we should be entitled to ask her questions on the stand when she's under oath about what she knew with respect to this very significant document. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612376

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 H3v1giu2 12- Thank you, your Honor. MR. PAGLIUCA: Briefly, your Honor. So first, we're doing a mix and match here of different things, which I like the rules of evidence because they're rules and I can read them and they say what they say. Even if, even if, you had a gold-plated record custodian from the Palm Beach Police Department come in here and make all of the findings that you needed to find as a business record exception or a government record exception, the case law is absolutely clear that second- and thirdhand hearsay is inadmissible through police reports. I use this example because it's a good one, I think. As part of my practice, I represent people accused of crimes, and so we get discovery as part of my practice. Guess what? That goes into my files and I keep it as a matter of course, and it is a business record of mine because I keep it in due course. Now that doesn't mean that it simply would get admitted into a trial whole cloth for the truth of the matter asserted, just because it's a business record of mine. And why? What's the answer? Because the statements that are included in the police report, or the discovery that I get, that I put in my file and I keep very carefully as a business record, don't magically become nonhearsay, because the people who are making those statements are not under any business duty to report to me. And that's what the business record exception SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612377

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 H3v1giu2 12; is all about. There is trustworthiness when someone, you know -- if it was a billing record of mine, that's a different story. But the business record exception, 803(6), everyone in the chain of the hearsay link has to be under a business duty to report. So there are cases where officers are allowed to testify about things that they wrote in their report because they observed them or another officer told them or it was a test that maybe happened within the police department. But what they're not allowed to talk about, under a business record exception, are witness statements. And that's what Ms. McCawley wants to try to introduce to the jury in this case -- 87 pages of witness statements from people who we don't know who they are and there's no evidence that they had any association with Ms. Maxwell. Let me finish with this state of mind issue. THE COURT: But before you do, why isn't it an 803(6) exception? MR. PAGLIUCA: It could be, your Honor. So 803(6) THE COURT: Okay. So what you're saying is, yes, the reports could get in, but not the hearsay part. MR. PAGLIUCA: Exactly. That's exactly right. THE COURT: Well, okay. Of course what the plaintiff would say to that is, okay, fine. MR. PAGLIUCA: Well, then you're redacting 90 percent -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612378

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 H3v1giu2 130 THE COURT: I didn't say redaction. It's hearsay, it's not being offered, but of course it is being offered for the truth of the matter. MR. PAGLIUCA: Exactly. You know, this is a smokescreen about it goes to Maxwell's state of mind. And when you carefully go through these police reports, there is not one of these alleged victims who identifies Ms. Maxwell as having anything to do with any of this. Which is another important point. What I find curious, again, Ms. McCawley usually says there are 30 victims identified in these police reports, which isn't true. And when I asked Detective to go through them with me and identify how many people he said were victims, there were 17. And so now today she said there were 20. So she's working her way my way. But, you know, that's the problem here, your Honor. This is being offered for the truth of the matter asserted. All they want to do is get in front of a jury that there was a police department investigation in which Epstein was the target and Epstein is alleged to have done all of these bad things; therefore, you should punish Maxwell because then they're going to say, she was his girlfriend, she had to have known, yada, yada, yada, yada, he's a bad person, she's a bad person, find her liable, and whack her with a big damage award. That's what's going on here. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612379

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 131 THE COURT: What's next? MR. CASSELL: The motion on and , / motion to get in adverse inference. THE COURT: Yes. MR. CASSELL: If I can be heard on that, your Honor. THE COURT: Excuse me. Let me go back to where we were. Those statements, the statements of the "victims," being offered for the truth, are they not? MS. McCAWLEY: Your Honor, I do not believe they're being offered for the truth because what we're saying -- we're not saying whether or not what those victims said was necessarily true. We're saying was she aware that there were a number -- and they take issue with the number. I don't see a difference between 17 and 30. But was she aware that there were a number of other individuals making reports at the time she said my client must have been lying about being abused as a minor. So whether or not those are true or not, the reports, was she aware that there were a number of reports out there from other little girls saying that they were also brought to the massage room. And that goes to her state of mind at the time she made that statement where she defames my client internationally. THE COURT: Yes. But aware of the reports. How could she be aware of the reports? Aware of the girls and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612380

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 H3v1giu2 132 activity, that's the truth. But aware of the reports. MS. McCAWLEY: Yes, your Honor, and the reason why she could be aware of the reports is because she'll -- remember, her testimony is that she worked for Epstein from the early '90s until 2009. This investigation took place in 2006, your Honor, during the course of the time she was allegedly managing the Palm Beach home and his active employee, his right-hand person. So yes, of course, we should be able to ask her those questions, show her the report: Were you aware of this, of these reports? Were you aware that these reports were made, you know, as part of this investigation? And then she can answer that. THE COURT: Well, that's fine. You could do that. You could show her the reports and say, were you aware of them, but that would not get the hearsay part in. MS. McCAWLEY: Well, your Honor, and of course we have two other of the exceptions, the business record exception, which we talked about, and we also noticed this as one of the residual hearsay -- THE COURT: Yes, but even as a business record, _ think counsel is correct -- under the business records exception, the activities of the cops and what they did, all of that can go in, yes, because they're under a duty, etc., but not the statements. MS. McCAWLEY: So for example, one of the witnesses on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612381

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 H3v1giu2 133 our witness list i who is in the report and she testified in this case. THE COURT: Well, that's a different issue. And you said you're going to present her. MS. McCAWLEY: Yes. THE COURT: Well, all right. That's a different question. But in other words, you could show her the report and ask her if she's aware of these reports. I assume what her answer is going to be. And that's the end of it. MS. McCAWLEY: Well, your Honor, I mean, obviously we'd like to enter the reports under the business record exception through and through the residual hearsay - THE COURT: But even if you do that, I don't see how you avoid eliminating the hearsay. Well, okay. All right. MR. PAGLIUCA: Your Honor, could I have one final comment on this. If they're not being offered for the truth of the matter asserted, they're really not relevant to this case is my final point, because if they're not being offered for the truth of the matter asserted, at best it's a neutral as to whether these things did or didn't happen. If they didn't happen, they would certainly be supportive of Ms. Maxwell's state of mind if she knew about them. If they're not being offered for the truth of the matter -- THE COURT: Well, it might be material that she knew SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612382

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 H3v1giu2 139 that there was an investigation. MR. PAGLIUCA: You know, she could be asked that question: Did you know there was an investigation? I think she's going to say no. I gave you her affidavit in which she said prior to making her statement, she had never seen these police reports. So we all know -- THE COURT: That's a different question. MR. PAGLIUCA: I understand. But we all know the answer is, that's in these police reports, and I'm pretty sure she testified at her deposition that she wasn't really aware of this investigation. All she knew -- I think is what she testified to -- was that Epstein went to jail and she knew at some point he was a registered sex offender. Those are the two things I think she knew at the end of the day at this deposition. Anyway, I agree with you that the question, did you know there was an investigation, you know, I suppose you can ask that question and the answer will be yes or no, whatever it is. THE COURT: Okay. MR. PAGLIUCA: All right. Thank you. THE COURT: Okay. I'm sorry. Forgive me for interrupting. MR. CASSELL: No. Your patience has been appreciated today, your Honor. I want to address now the and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612383

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 155 adverse inference motions. We're a moving party. There are reciprocal motions both ways on this. I have the numbers available, if that would be useful. I believe 673 is the defendant's motion and 689 is our motion. So those would be the two motions going, obviously, in different directions. Your Honor is familiar with these issues because of the Epstein adverse inference motion that was argued I think two weeks ago by me, and at that time -- I know you have not yet formally ruled on the motion, but there was extensive discussion about could we just kick this down the road to the trial and see, you know, what Epstein says at that time and, you know, after he testifies, sort out whether there's an adverse inference. Again, you haven't ruled on that, but I think I indicated at the time that certainly from Ms. point of view, we would have no objection to handling Mr. Epstein in that way. I want to make clear that we would also have no objection to handling the and issue in that way as well. You can put them on via deposition, and then we could sort out in the context of the case with a full record whether an adverse inference is appropriate. But we surface the issue for you now so it wouldn't be something you'd have to do on the fly in the middle of trial. And all the allegations, of course, that have been made here, I think it's important to put and on the conspiracy scheme, if you will. The top of the conspiracy is Mr. Epstein, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612384

H3v1giu2 136 1 his right-hand player then is Ms. Maxwell, and in the 2 conspiracy, again, in our view -- we understand the defense 3 will take a differing point of view on this, but in our view, 4 the conspiracy's next echelon is and . 5 And so for example, Ms. has made allegations 6 about certain things. Ms. Maxwell can't remember or denies 7 them, so of course Ms. then looks to corroborate her 8 allegations of a conspiracy, and the first person she goes to 9 is Epstein, and you're familiar with that. The second and 10 third people that she goes to are and , 11 becaus 12 And Ms. is going to be talking about that 13 during the course of the trial, and immediately the jury is 14 going to wonder, well, gosh, I wonder what says about 15 that? I wonder what says about that? And your 16 Honor will recall that we went to great lengths to get them to 17 testify. They were evading service, in our view. We 18 ultimately had to come to your Honor to get alternative 19 service, and it was only at that point that we were able to 20 have them sit for their depositions. They sat for their 21 depositions now, and what we hear from the defense, if I 22 understand it, is that we don't have a good-faith basis for 23 asking and , gee, weren't you a part of this 2.1 sex trafficking and sex abuse conspiracy? I think the way they 25 put it in their brief is, all of this evidence shows nothing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612385

H3v1giu2 137 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 other than Ms. Maxwell might have been at the same place at the same time. It's just, you know, a happenstance they were in the same place and that's not admissible. Well, your Honor will notice in our opening brief on this, at pages 15 I think through the next ten pages or so, we've gone through with a chart and we've said, okay, here's the question we asked, and then in the right-hand column of our chart we put in the witnesses and, you know, the flight logs. I know other things that your Honor is very familiar with. This is why we're asking these questions. You know, the flight logs have been talked about over and over again, but for good reason. is on some of these flight logs, and what's up? Those are the questions that we asked, and of course she takes the Fifth. There are other things as well. For example, testified, I witnessed with my own two eyes reporting to Ghislaine in front of me, but I can't remember specifics. They weren't talking about girls. I can't remember the specific conversation, but every single person, 100 percent, 200 percent, reported to Ghislaine. Later on in that same deposition -- that was at page 288 and thereabouts. At page 387: I witnessed the same thing -- all the girls did -- the same thing I had to do was go and report to Leslie Groff, and Ghislaine Maxwell. Ghislaine was the main lady. So again, we have an allegation by our client that Ms. Maxwell was a part of a larger conspiracy. That's one of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612386

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 H3v1giu2 138 the central issues, of course, in the case. One of the things that was called an obvious lie. And so we want to bring in the co-conspirators and ask them, Ms. says you were in a conspiracy and what's your side of the story on that? And they take the Fifth. So there we are. The question is, are we going to conceal that from the jury or are we going to present it to them? Well, the Second Circuit case that your Honor is well familiar with, LiButti, sets out the factors that have determined that issue, and one of the things we hear from the defendant is, oh, it's never been applied in a case like this. I would just direct your attention, as I did during the Epstein argument, to the case of FDIC v. Fidelity & Deposit Co. of Maryland. That's a Fifth Circuit case from 1995, in which a bank officer was accused of dishonest and fraudulent acts and kind of bogus loans, and the Fifth Circuit allowed Fifth Amendment invocations from the loan recipients to be used against him, reasoning that, well, in this kind of a case, the collusion then is shown by the Fifth Amendment invocation of the participants in the conspiracy there. Fifth Amendment invocations can be held against someone who's accused to be a part of that conspiracy, which of course is exactly what we have going on here in a civil context. LiButti, by the §§§, the Second Circuit case, which is controlling in this jurisdiction, favorably cites the Fifth Circuit case in FDIC v. Fidelity & Deposit Co., explaining that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612387

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 139 that is one of the reasons why in the Second Circuit they think this is a good rule of law, because they approve of the result that the Fifth Circuit reached in that co-conspirator case. And LiButti then goes on, as your Honor is well familiar, with laying out four different factors. The first is the nature of the relationship involved. Of course the conspiracy continues. This is not just at the time of those events. The conspiracy continues to today, and your Honor is familiar with that from the fact that they were evading service while we were trying to obtain their testimony last year. But there's more that binds them together even today. Your Honor is of course familiar with the nonprosecution SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612388

1 2 3 4 5 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 140 agreement that's at the heart of this case. Remember the issue that we were talking about yesterday. And that is the first factor, the nature of the relationship there. Very tightly bound. The second one is the degree of control in which the party has vested the nonparty witness in regard to key facts and the general subject matter of the litigation. That's a direct quote from LiButti. And the evidence here and again, I won't belabor all of the flight logs and specific evidence, i -d kn•w in r in • r brief. together. I just quoted Ms. saying, you know, that that was the person that they were talking to, and so you have a very significant degree of control. The third factor from LiButti is compatibility of interests. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612389

H3v1giu2 141 1 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The final factor LiButti directs you to consider is the role in the underlying aspects of the litigation, and again, it's hard to imagine. I won't say they are the most important members of the conspiracy. Epstein is the most important member of the conspiracy, but the next most important, after Maxwell, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612390

1 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3v1giu2 112 The final point that the LiButti case directs you tc consider is whether admitting the evidence will advance the search for truth. and I'm using that term not as a lawyer but as a layperson for this purpose. Webster's defines Of course once you determine that something's relevant, you then have to consider possible prejudicial effect. Obviously this is a case in which sex allegations are going to be at their heart. It's not like we have a business dispute where somebody wants to throw in sex abuse. We want to prove, in a case involving a sex conspiracy, what the conspirators have to say. And there's no prejudice then to Maxwell in the sense of unfair prejudice. He can ask whatever questions they deem appropriate as well. But the absence of the co-conspirators is of course highly prejudicial to Ms. . Naturally the jury is going to wonder, you said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612391

H3v1giu2 143 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 Also -- I think you'll be hearing these issues next week -- we used some leading questions during the deposition. We tried to also use some nonleading. Leading questions can be used when? When you have a witness who's associated with the party on the other side. Well, we said they're in a conspiracy. I can't imagine a case where there would be a clearer example of when leading questions would be appropriate. The final argument they made, I think last night in their late replies was that we somehow missed the deadline in taking their deposition. What they don't disclose I think in their papers is, your Honor will recall that we had to come to you, obtain an application for alternative service, and then, as a result of that, they came in. We did all these things with the Court's blessing and approval of taking depositions. Those schedules were discussed with opposing counsel. And as soon as we'd taken the deposition, within approximately a week, we provided the designations. That was back in February of this year. There's no prejudice. So for all these reasons, we would ask that we be allowed to present two of the co-conspirators in the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612392

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 H3v1giu2 11 1 box via the video depositions that we've taken. MR. PAGLIUCA: I thought I was back to my old days as a public defender when I started the practice of law, your Honor. Now I'm arguing an 801(d)(2)(E) motion instead of a defamation case. I think we have to start with the notion that is true, that this is a defamation case in which Ms. Maxwell is alleged to have made a defamatory statement in 2015. In that defamatory statement Ms. Maxwell does not mention any of these individuals and doesn't mention Mr. Epstein, and so the starting point for this is, this is an entirely different issue than Mr. Cassell and his fantastical conspiracy argument here. If we want to stick to the legal issues in this case, I think we first need to understand that there is actually a specific rule of evidence that relates to co-conspirator hearsay exception, and that is Rule 801(d)(2)(E) of the Federal Rules of Evidence, and significantly, under that rule -- and this is why the cases using Rule 801(d)(2)(E) find indicia of trustworthiness in co-conspirator hearsay statements -- they are made at or during the course or in furtherance of a conspiracy. And absent that finding, statements of co-conspirators are deemed to be hearsay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612393

H3v1giu2 145 1 2 4 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And when we talk about the LiButti factors, you know, there is really zero evidence that's been presented to your Honor. First of all, the relationship now, in 2017, between these individuals -- because that is what the controlling relationship is, not some relationship that happened or didn't happen in 2000 or 2001. It is the relationship during the course of this litigation, not some other litigation. And indeed, there is no relationship between these folks. At best, The other part of this that Mr. Cassell overlooks or doesn't want to talk about is what really is at issue -- and this relates to this close present relationship - SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612394

H3v1giu2 146 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 there's a lot of eye rolling and facial expressions in response to the leading questions by plaintiff's lawyers that, in my analysis -- I may be testifying, your Honor, I must admit. But in my observation, it was basically a nonverbal "that's not true" and then the invocation of the Fifth Amendment privilege, and if that gets played for the jury, the jury can see that or you can see it. At one point Ms. McCawley chided one of these witnesses and said something like, you know, if you keep doing what you're doing, we're going to have to do something else, because she didn't like the facial expressions or the words SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612395

H3v1giu2 147 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 Ms. Maxwell has no ability to control these folks. You know, we certainly weren't going to stand in the way of plaintiff's trying to take their depositions, but we have no control over them, in securing their testimony or requiring them to cooperate in any sense. I cite to the Court the case of Coquina Investments v. Rothstein, which I didn't realize until I was reading this last night is ironic because the defendant in the Rothstein case is Mr. Edwards' former partner, who's doing 55 years in a federal penitentiary right now. But in that case, which is very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612396

1 2 3 4 H3v1giu2 148 The next two LiButti factors, the next one relates to any interest in the outcome of the litigation. Again, 5 Mr. Cassell has to manufacture some interest here. These folks 6 are not defendants in this case, these witnesses. They have no 7 financial interest. They have no ties. There is no joint 8 defense agreement. There is no indemnification agreement. 9 There is nothing. They have absolutely no dog in this fight, 10 again, which is no interest in the litigation. 11 There's just really nothing that would allow any 12 adverse inference in this case one way or the other. 13 Finally, your Honor -- well, two final points. The 14 questioning, you know, the kind of questions that were posed to 15 these witnesses were precisely the kind of questions that have 16 been disapproved in the Second Circuit. And that's Brink's 17 Inc. v. City of New York, which is in the papers; WorldCom 18 Security Litigation, also in the papers; and LiButti itself. 19 These are not technical objections. It serves no legitimate 20 evidentiary purpose for a lawyer to come in and simply ask a 21 very bunch of highly charged, leading questions to which they 22 know the witness is going to say, "I take the Fifth." There is 23 no evidentiary ball advanced with those questions, because it's 2.1 just lawyer argument that doesn't do anything for anybody. So 25 both sides could ask a hundred questions, they could both be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612397

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 H3v1giu2 1417 leading, they could both be exact opposite questions. The witnesses would say the Fifth to everything, and then you look at the jury and you say, okay, now you can impose an adverse inference against anybody you want to based on the questions that the lawyers asked. I mean, that's really what this ends up being, and it's a waste of time, and it is of no evidentiary significance. Then the last point, which I'm just going to need to correct Mr. Cassell on, the plaintiffs were saying somehow that we were untimely in not designating portions of these depositions which we believe are wholly inadmissible, and the point of our reply was, wait a minute, you didn't designate any of this testimony until after the designation date was over. (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612398

1 2 3 4 5 H3VOGIU3 150 MR. PAGLIUCA: (continued) I don't care about that, but, you know, I mean, we're going to deal with these issues, and we'll deal with them so the timing is of no consequence to me, but I'm not complaining about it, I'm just responding to it. 6 But for those reasons, your Honor, you shouldn't allow 7 anybody to present any adverse inference from these witnesses. 8 They should not just be part of this trial. Thank you. 9 MR. CASSELL: In reply, your Honor, I think you can 10 just see from the upset there what's going to be happening at 11 this trial. This is the direct quote from Mr. Pagliuca. 12 "Fantastical conspiracy". That's going to be the argument from 13 the other side. They're obviously entitled to advance that 14 argument. But that's what Ms. is going to need to 15 respond to at the trial. And, of course, the jury will think 16 this is a fantastical conspiracy if Ms. doesn't even 17 brin in some of the alleged conspirators such as Epstein, 18 19 Now, we'll hear that this is somehow a hearsay issue 20 under 801(d)(2). This is not a hearsay. There are going to be 21 witnesses in the case, questioned and cross examined. So this 22 isn't a question of inadmissible hearsay, this is a question of 23 presenting a witness to the jury. 2.1 THE COURT: How do you think this evidence is -- it's 25 going to go in by way of either deposition or the depositions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612399

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU3 irl already taken -- MR. CASSELL: Yes. THE COURT: -- or by the witnesses being compelled to come and invoke and so on? I think we know how that's going to work out. MR. CASSELL: Right. I think in this case it's going to be through the deposition that's been recorded. With Mr. Epstein, we're going to bring him here live because we've been able to reach him by subpoena, but these two have been difficult to reach by subpoena, that's why we've taken their deposition. And so Mr. Epstein will testify live, he would invoke, IMand the deposition has already been taken. And in our THE COURT: What do you do about the statement that counsel just made about the impropriety of the questions? MR. CASSELL: Right. So you can't just say, hey, is the moon made of green cheese and they take the Fifth. You can't put that in, and Booty recognizes that. There has to be independent evidence that supports each question that's asked. And so what we've done in our brief, if you look at page 17 of our initial paper -- if I can just illustrate one. THE COURT: No, that's all right. That's fine. i cp-- the point. MR. CASSELL: Right. But I think this is a fair point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612400

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU3 1r,2" about the defense. I'm not sure that they get the point because we've said here's a question -- THE COURT: Don't worry about educating them. It's me you've got to educate. MR. CASSELL: So I would just direct you to our we've tried to show, this is not a moon made of green cheese, we have very specific support for each -- THE COURT: I hear you. I hear you. MR. CASSELL: -- of the questions. THE COURT: You've got it in the brief. I understand. MR. CASSELL: Right. So with regard to their interest in the case, The other problem, remember, under Booty, the question is well, are these witnesses that the plaintiff had some control over? Is this somebody that the defendant has vested control over these facts? These were direct reports. I don't think I heard any response to that from the other side. These were direct reports to Maxwell, and so these are the people who, you know, when Ms. alleged that she's involved -- Ms. Maxwell is involved in doing these things, these are the women who are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612401

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU3 153 executing the orders for Ms. Maxwell, and it's not part of a fantastical conspiracy. All we want to do is have the jury hear this information. We've provided in our brief very specific support for each of the questions that we want to ask. We think it's entirely appropriate that the jury hear what these two have to say. THE COURT: Thank you. Where are we now? Yes. MS. MENNINGER: Your Honor, by my estimation, we have one motion left, which is 665 with the opening brief. THE COURT: And what's that? MS. MENNINGER: It was our motion to prohibit questioning of our client regarding her or -- THE COURT: Yes. MS. MENNINGER: Do I take that as a go ahead and talk THE COURT: No. MS. MENNINGER: Okay. I wasn't sure. THE COURT: Yes, well, I can understand. How can you possibly know what we're going to do when I don't know what we're going to do? MS. MENNINGER: Your Honor, I'm happy to defer this issue. I believe it is somewhat -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612402

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 H3VOGIU3 159 THE COURT: Yes. MS. MENNINGER: -- enmeshed with some of the other motions that, based on plaintiff's representation, they want to put off until another day, so -- until the 15 days before, in particular, so I'm happy to wait. THE COURT: How does that figure -- I'm sorry. Explain to me how that figures into the -- MS. MENNINGER: Into this motion? THE COURT: Well, these are the things about which they have to give notice. MS. MENNINGER: Exactly, your Honor. The issue in this motion, and I'll try to be slightly circumspect, but in this motion, we have agreed that our client can be cross examined with respect to plaintiff, any of plaintiff's allegations, with respect to any other minor victim. Our client has absolutely denied having been involved sexually with plaintiff or with the minor victim. They would like to introduce evidence of some kind every other acts with other people. They have not yet specified, apparently, completely, what other acts and what other people they're talking about. THE COURT: So I think we should -- MS. MENNINGER: Right. THE COURT: So I think we should wait until we get it all. Okay. So that takes care of that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612403

1 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H3VOGIU3 155 MS. McCAWLEY: Your Honor, there's just one more thing procedurally, if I could indulge the Court while I have your attention before we all leave. That would be helpful. THE COURT: Don't count on it. MS. McCAWLEY: Sorry. THE COURT: Yes. MS. McCAWLEY: It's just, in your order about the ESI and the issue with the non-production, you said that we should suggest hearing dates. I see that your Honor has moved the hearing dates to Wednesdays, so we were hoping to, since there's only a few Wednesdays left before our trial, reserve one of those to handle that hearing? THE COURT: Well, I'm not sure. MS. McCAWLEY: Or whatever day would work. THE COURT: No. Okay. Now, it seems to me, correct me if I'm wrong, on the 5th we're going to do Epstein's motion, the deposition designations, the biforcation -- MR. CASSELL: I'm sorry, we just did that. THE COURT: By the way, maybe we could do the biforcation issue very quickly. What is it you want to -- MR. CASSELL: I think we just did that a few moments ago, your Honor. MS. McCAWLEY: That was the one about the financial records. THE COURT: By what? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612404

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 H3VOGIU3 156 MS. McCAWLEY: We just did that about the financial records, and you gave us some direction on that, so that one's been -- THE COURT: Oh, okay. So that's done. Okay. that's the 5th. MS. McCAWLEY: Yes. So then there's April 12th, which I believe is the following Wednesday, and then I think the one after that is the 19th. THE COURT: Well, are we going to do a hearing -- I take it we're going to do a hearing on the reconsideration of the -- MS. McCAWLEY: That's what I'm talking about, your Honor. I'm sorry. Yes. So that's the evidentiary issue of you said they could present a forensic, based on your order of reconsideration of the November 2nd. So that's the date I'm looking for. I'm sorry, I should have been clearer about that. THE COURT: When are we going to do that? MS. McCAWLEY: Maybe the 12th or the 19th possibly? THE COURT: How about the 10th. MS. McCAWLEY: Okay. THE COURT: Does that work for you all? MR. PAGLIUCA: I can't do the 10th, your Honor, I'm in a deposition all day in Colorado. I'm sorry. THE COURT: How could you possibly take another case? MR. PAGLIUCA: Well, believe me, I have a lot of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612405

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 H3VOGIU3 157 clients that are saying that exact same thing right now, your Honor. MS. MENNINGER: Your Honor, could we do the 13th, the Thursday of that week? THE COURT: Yes. I don't see any reason not to. Okay. MS. McCAWLEY: That's all I had, your Honor. Thank you. And thank you for your patience, everyone, today. THE COURT: Have we completed the briefing and everything everybody wants to submit on the black book issue? MS. McCAWLEY: Well, yes, your Honor. So now, as of last night, it was fully briefed. So there are three briefs on it, essentially. We had a motion in limine to allow it in, they had a motion in limine to exclude it, and it came up previously -- I forget, we argued it a couple weeks ago in the context of another motion -- oh, I'm sorry, because, your Honor, you requested that with respect to Diane Flores. So we didn't reargue it today, it is fully briefed for you. THE COURT: Okay. In other words, I've got everything on that. MS. McCAWLEY: You do, your Honor, yes. THE COURT: Okay. Anything else? MS. McCAWLEY: Not that I'm aware of. MR. PAGLIUCA: I think we're concluded today, your Honor. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00612406

H3VOGIU3 1 THE COURT: Okay, thanks. Have a nice weekend. 2 (Adjourned) 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 158 EFTA00612407