United States District Court Southern District of New York Virginia Giuffre Plaintiff No Ghislaine Maxwell Defendant REPLY IN SUPPORT OF PLAINTIFF?S MOTION TO COMPEL DE Sigrid McCawley20.7 Pro Hac Vice Meredith Schultz Pro Hac Vice BOIES SCHILLER FLEXNER LL19P Las Olas Blvd Suite Ft Lauderdale FL Case Document Filed Page of Plaintiff Virginia Giuffre-254.7 Giuffre and through her undersigned counsel hereb-20.5y3 files-251.2this Repl-22.9y in Support of her Motion to Compel DE I.-2360.9ARGUMENT Court should Order Production of Documents Responsive to Requests Nos Defendant characterizes the police reports and information therein 244c-.7oncerning Ms Giuffre as a minor relevant Br at and irrelevant to this action at On page Defendant claims that actual police reports are highl-18.6y relevant stating the publicly20.3 available redacted police reports are part of the record and constitute highl-18.2y relevant evidence in this action 9.7But on the very20.2 next page when discussing the information g10l-12.2eaned from those police reports that Mr Pagliuca had prior to the conferral call Defendant-261.9claims the information from the police reports is irrelevant stating:-243.8 The records requested are irrelevant Plaintiff has asserted a single claim for defamation based on Ms Maxwell?s denial of her outrageous allegations of sex trafficking.?-250.8T-.3he dispositive question is whether the denial was defamatory RFP No seeks documents Mr Pagliuca allegedly 5.5?reviewed and/or relied allegedly21.2 making statements stating that Plaintiff previously made false accusations of sexual assault Br at Emphasis original How Defendant purports to distinguish between the actual police reports as relevant and the information contained in the police reports as irrelevant,9.9?0 is unexplained However logic would dictate that if the police reports are relevant so too is the information contained therein and how acquired For that reason this Court should grant Ms Giuffre?s-240.6requests Nos Defendant states that the material responsive to Ms Giuffre?s requests Nos constitute privileged communications between a Ms Maxwell?s attorneys and Ms Maxwell defense counsel and their agents and between defense counsel with joint def)15e-.1nse or common interest privileges concerning obtaining or receiving local police findings or opinions and statements Case Document Filed Page of made law enforcement or state attorney21.5 Br at Ms Giuffre understands this winding sentence to mean that documents res6.7ponsive to Requests Nos constitute communications between Defendant and Jeffrey Epstein and Alan Dershowitz or their counsel As discussed at length in the moving brief Defendant bears the burden to show that there is a joint defense agreement among them but she 9.9refuses to disclose the joint defense agreement and this Court months ago has already20.8 ordered Defendant to turn over her communications with Epstein and Dershowitz that she purported were privileged See April Accordingly)20.2,-.4 this Court should grant Ms Giuffre?s requests Nos Court should Order Production of Documents Responsive to Requests and These requests concern joint defense agreements between and among Defendant Epstein and Dershowitz,-249.4and communications among counsel for Defendant and Epstein and Dershowitz In Defendant?s objections submitted to Ms Giuffre in response-248.1t-.5o the request for the joint defense agreement between her and Dershowitz she stated that she has been unable to lo8.1cate documents responsive to this Request.?-255.1In her brief she that there is no joint defense agreement to produce Br at 257.6There are two problems with this position First Defendant is withholding responsive documents consisting of communic11ations between Dershowitz-6.1/Dershowitz?s counsel and Epstein/Epstein?s counsel Defendant does not and cannot refute the case law that puts the burden on establishing a joint defense privilege applies on the it which must be shown through e6.1v-.2idence Defendant has put forth no evidence of these agreements In fact Defendant states that no such agreement exists with Dershowitz and she is refusing to reveal the agreement with Epstein Even if privileges apply20.7 to the actual joint defense ag10.8reement with Epstein and in many21.4 cases Courts find no privilege applies whatsoever Defendant has to make that showing This response brief does not Case Document Filed Page of make that showing 8.4?Such showings must be based on competent evidence usually21.2 through affidavits deposition testimony20.7 or other admissible evidence Egiazaryan Zalmayev F.R.D S.D.N.Y citations omitted Defendant has put forth no affidavits or testimony30.8 but instead filed declarations of counsel for Epstein and Dershowitz indicating their belief?-245.8t-.6hat a common interest exists Should the Court consider these declarations to be competent evidence to establish that a joint defense agreement exists between Defendant and Dershowitz and Epstein though neither declaration state that an agreement exists Ms Giuffre submits that it should not have taken motion practice to elicit such evidence as it is Defendant?s burden to produce this evidence Second these agreements are plainl-21.8y-230relevant to in this case This Court has previously19.9 ordered Defendant to produce emails in which both Epstein and Dershowitz were active in assisting Defendant draft de7.8famatory20.7 statements against Ms Giuffre See April Order Defendant has set forth the defense that her defamatory20.3 statements are substantially20.1 true and cannot realistically22.1 have cause impairment to Plaintiff?s reputation The emails between and among Defendant Epstein and Dershowitz show that that the three of them conspired specificall-20.3y1.6 to damage Ms Giuffre?s reputation They20.1 also reveal that Defendant?s defamatory20.4 statements are not substantially20.6 true The joint defense agreement show Defendant?s ongoing and continued relationship with Dershowitz and Epstein which is relevant to her defenses 8.6Both of these individuals had a hand in Defendant?s statements to the public 7At the very20.5 least the Court should conduct an in camera review of joint defense agreements that exist to determine their relevanc-6.2e-246.1to both the defamation claim and the multiple affirmative defenses offered Defendant See-246S0teuben Foods Inc GEA Process Engineering Inc Strangel-22y Defendant redacted both the names of counsel and the names of Epstein and Dershowitz in these filings Case Document Filed Page of at W.D.N.Y granting Plaintiff?s motion to compel production of paragraph of defendant?s joint defense agreement since that paragraph is relevant to the claims and defenses 250This Court should Order Production of Documents Responsive to Requests No In this request Ms Giuffre seeks the documents that concern her Defendant tells the Court cconspicuously20.1 missing is explanation of a request for all documents concerning Plaintiff would not require review and production of every17.7 document the defense has in this case Br at Both common sense and common attorney)22.6 competencies belies-250this statement First it is expected that the overwhelming majorit-15.3y.4 of documents concerning Ms Giuffre are attorney20.7--6.8client communications or work product-251.2c.1reated after the filing of this lawsuit Such documents do not review they19.9 are protected privilege and can be categoricall-20.4y9.8 pursuant to the Local Rules and governing case law Therefore there is no merit to Defendant?s burden claim Moreover throughout the months of motion practice concerning these issues and throughout all of the meet and confers Defendant?s counsel has never presented a case supporting the far--7.1fetched position that non-privileged documents in the possession of the Furthermore Ms Giuffre?s correspondence suggesting just how these documents can be collected electronically21.2 without undue burden also belies claim of ignorance on how to collect and produce documents responsive to this request without reviewing tho9u.8sands of presumptively20.7 privileged communications See also Southern District of New York Local Civil Rule Am Broad Companies Inc Aereo Inc at S.D.N.Y Jan the Court notes that parties are presented with a number of option that could mitigate the burden including exclusion from the privilege logs of documents created after the commencement of litigation Emphasis added United States Bouchard Transp at E.D.N.Y Apr First privilege logs are commonly limited to documents created before the date litigation was initiated This is due to the fact that in many23.7 situations it can be assumed that all documents created after charges have been brought or a lawsuit has been filed and withheld on the grounds of privilege were created because of that pending litigation Emphasis added Case Document Filed Page of Defendant and containing explicit references to Ms Giuffre are irrele vant and not subject to discovery21.5 What should-250 be reviewed and produced are the documents in Defendant 2s possession concerning Ms Giuffre that are outside the scop5.4 of privilege.-249.1 This would include for example Defendant 2s communications with third parties that concern Ms Giuffr The Court has already21.6 seen examples some of these communications-249.4 in its in camera review and it ordered Defendant to produce Defendant 2s communications concerning Ms Giuffr that she exchanged with Epstein Ross Gow and others This request targets documents like those Defendant has not argued burden applies to such a collection Furthermore if Defendant had collected her ctronic data pursuant to this Court 2s order an electronic search ew strokes dentify20.7 these documents-250.2 and eliminate the communications-248.7 to/from Defendant 2s attorney20.6 that fall under the ambit of privilege This is a basic request for documents concerning one of the parties and one that would be issued in almost litigation.-249.5 Defendant 2s continued refusal to produce documents concerning Ms Giuffre is made in bad faith and shows that she is hiding additional incriminating documents including those regarding ecentl-20.8 discovered defamatory21.4 statement in the January20.5 article discussed infra at An adverse inference instruction is appropriate in this circumstance as more fully21.4 briefed in Ms Giuffre 2s August Memorandum of Law on the same DE After the close of discovery19.4 and after the depositions have been taken in this matter just ago Defendant produced a critical e-mail asserting that it 2s exclusi on from production was a 223clerical error The mail proves that the Defendant has continued to use Ross Gow as her 223image consultant and media relations agent during the course of this lawsuit to interface with the media See McCawley20.3 Dec at Exhibit-251.6 November email from Ross Gow to Defendant.-249.6 This runs directl-22.5 contrary to Defendant 2s representations to this Court that she has no ability20.8 to produce Ross Gow for a deposition and instead has forced Ms Giuffre to spend thousands of dollars to track down a person who is in Defendant employ20 Case Document Filed Page of Court Should Order Production of Documents Responsive to Requests No and Requests Nos and seek documents concerning statement made by You or on Your behalf to the press or other group-249.2or individual including draft statements concerning Ms Giuffre You Ross Gow or other individual from to the present including the dates of an-19y publications and if published online the Uniform Resource Identifier URL address and all documents concerning which individuals or entities You or Your agents distributed or sent statements concerning Ms Giuffre referenced in Request No made You or on Your behalf In other words Ms Giuffre is seeking what statements about Ms Giuffre Defendant distributed and to whom This is another basic request particularl-19.7y3.2 in a defamation case.-248.8Moreover the person who knows the full extent of Defendant?s defamation of Ms Giuffre is Defendant In her brief Defendant states that the defense previously20.9 produced responsive documents It is likely20.9 that Defendant is referring to the press release email communication from Mr Gow to various media outlets The defamatory21.1 statements contained therein are referenced in Ms Giuffre?s Complaint Since filing the instant motion Ms Giuffre has become aware that Defendant caused additional defamatory20.8 statements to be published This is important Ms Giuffre has-249.8d.2iscovered an article that refers to a different defamatory20.2 statement,-249.8not contained in the above5.7-state press release See McCawley20.6 Dec at Exhibit January The Sun online article Prince Andrew?s pal Ghislaine groped teen girls Miss Maxwell?s spokesman branded the accusations against her a web of lies and deceit None of these allegations are on oath These girls are saying they20.4 want for Communications bearing this language are responsive to these requests as is the publication in which Ms Giuffre discovered Case Document Filed Page of it Defendant has produced no documents at all related to this statement made her representative This is a statement made to a major publication on behalf of Defendant Reasonable inquiry20.2 as required 10Rule Fed Civ would have easily y20i-2.2elded documents relating to this statement issued on Defendant?s behalf.-248Y-1.3et Defendant did not produce documents relating to that defamatory21.7 statement and is now caught-253in another discovery19.6 violation for her failure to produce documents related to that January20.2 statement Defendant cannot refuse to provide Ms Giuffre with the extent of the publication of Defendant?s defamatory19.8 statements nor can she decide documents relating to the defamatory20.7 statements Ms Giuffre knows about at the time Wanting to hide-246.3the fact that her-247.1d-.2efamation was on a greater scale than originall-22.7y known to Ms Giuffre is not a proper objection and withholding from discovery20.6 Defendant?s additional defamation constitutes a discovery19.1 violation The Court should order Defendant to fully with the requests in Nos and including the production of documents related to the statement issued on her behalf to The Sun as reported in the January article above Documents Improperly Logged Defendant has withheld communications with Alan Dershowitz?s counsel claiming a common interest/joint defense privilege As stated above Defendant claims that there exist no joint defense agreement between her and Mr Dershowitz Br at Yet Defendant has agreed to provide non-part-22y0 Dershowitz all-251.4the discovery19.9 materials in this case and Dershowitz has agreed to assist Defendant in this litigation It is Ms Giuffre?s position that an-249.9agreement must still be evidenced in order to invoke the common interest/joint defense privilege affidavit or similar evidence-5.6 See Von Bulow by Auersperg Von Bulow F.2d 2d Cir cert denied U.S S.Ct Case Document Filed Page of Bowne of N.Y.C Inc AmBase Corp F.R.D Egiazaryan Zalmayev F.R.D S.D.N.Y A declaration from Dershowitz?s counsel stating that she believes Professor Dershowitz and Defendant Ghislaine Maxwell have a common interest evidence of a joint defense agreement and Defendant still fails to carry20.9 her burden.-249.9Accordingl-21.8y this Court should compel the production communications with Dershowitz?s counsel The declaration of Epstein?s counsel similarly20.9 falls short See Dec at I consider Mr Epstein and his lawy21.1e.1rs and Ms Maxwell and her lawy19.9e-.2rs to have a common interest 246.5Therefore if the Court finds that these declarations do not satisfy18.6 Defendant?s burden under Egiazaryan it should compel Defendant to produce those documents Forensic Review is Appropriate in these Circumstances Since filing the instant-249.9m-.2otion Defendant has produced another communication between her and Ross Gow and another email between her and Jeffrey18.5 Epstein Defendant explained that they20.7 were not produced 5.8following-239.9the Court?s in camera review in April due to clerical error See McCawley20.6 Dec at August letter-245.8form Laura Menninger One of these documents is an April between Defendant and Epstein Defendant complains to the Court-251.1that a forensic review would invade her privacy19.3 br at while at the same and her joint defense partner both seek to strip away19 Ms Giuffre?s privacy19.5 revealing confidential documents under the Protective Order However Declaration of Mary20.2 Borja DE one of the communications she states that she would like Barden to reply22.6 to one further allegation and Epstein writes back ok This document was not produced until after the close of discovery20 and therefore Defendant was never deposed on she was seeking Epstein?s permission for a having Barden make a what Epstein?s relationship was with Barden or who drafted the original communication at the bottom of the email as it does not appear to have been created 10.2either Defendant or Epstein Pending before this Court is Ms Giuffre?s motion to reopen Defendant?s deposition DE See Case Document Filed Page of Defendant fails to mention that a forensic review would not give Ms Giuffre the Court or any20.1one in the world 256.9access to or knowledge of highl-21.6y sensitive information that is not directly20.9 responsive or directly21.2 relevant to this case Ms Giuffre requested a forensic exam an independent third-party20.4 technician-248.8 not conducted Ms Giuffre or her agents who bound the terms of this Court?s Protective Order or other strictures necessary20.3 to maintain Defendant?s privacy19.9 Therefore this argument is without merit case law is easily19.6 distinguishable Abidor Napolitano Supp 2d E.D.N.Y is a case brought criminal defense lawyers challenging the inspection governmental entities I24.7mmigration-248.9a.3nd Customs Enforcement and Customs and Border Protection of electronic devices individuals brought across the border under Fourth Amendment grounds Of course there are no Fourth Amendment implications in this case raised having a neutral third-part-12.3y20.1 who is not a state actor assist Defendant in recovering relevant/deleted-249material from her electronic data-245.6in this civil case Similarly20.6,-9.7 U.S Galpin F.3d 2d Cir is a criminal case involving possession of)-247.7child pornography20.3 evidence of which was found through a government search of party19.9?-7s-251c-.6omputer These cases are inapposite Furthermore in her Rule subpoenas to Microsoft and Apple Defendant sought unfettered access-249.7a-.3ll of Ms Giuffre?s sent and-251.4r0eceived email and attendant metadata regardless of-247the relevance,-250a-.2nd regardless of-247.8content with her-246.6a-.4rgument made to this Court to support them surely20 belies Defendant?s expressed concern Of course the Fourth Amendment protects individuals from search and seizure by19 state actors and states the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon probable cause supported by18 Oath or affirmation and particularl-20.2y2.8 describing the place to be searched and the persons or things to be seized U.S Const amend IV Case Document Filed Page of about privacy20.4 This Court quashed those subpoenas see June Minute Entry20.8 Defendant-251.8 cannot to the Court in June that it is appropriate for her to receive unfettered access to every20.2 email Ms Giuffre ever sent or received from two accounts,-259.9 and then in August argue to the Court that it is inappropriate for a neutral third-part-22.2 to review Defendant 2s electronic documents for deleted or unproduced responsive documents)-245.2 a process through which importantly20.3 neither Ms Giuffre nor the Court access to all of Defendant 2s data unlike Defendant 2s subpoenas which would give all data directl-17.7 to her To the contrary)19.5 neither Ms Giuffre nor the Court would ever see or know about Defendant 2s personal data unless it is non-privileged and directl-19 responsive to the requests for production that this Court has alread-19.5 specificall-21.4 allowed Finally20.1 Defendant denies using her ax1 mindspring.com account for thing other than spam despite the fact that the account was set up Jeffrey20.3 Epstein for the purpose of sending electronic communications to members of his household See DE Alessi Dep Tr at June McCawley19.9 Decl at Exhibit-251.5 Banasiak Dep Tr at February20.3 Emphasis added McCawley20.3 Decl at Exhibit Defendant denies knowledge of her and has not pursued access to that account despite the fact that the account name bears her initials and was part of her contact information gathered police from Epstein 2s home and turned over to the Palm Beach County20.5 State Attorney20.7 as part of the investigation and prosecution of Epstein See DE Palm Beach Count-21.4 State Attorney20 2s Office Public Records Request No Disc at GIUFFRE007843 Yet Defendant has not disclosed what email account she did use while she abused Ms Giuffre and has never searched that account nor pr oduced documents from it Accordingly20.4 a forensic exam is called for at this time Case Document Filed Page of Respectfully21.2 Submitted BOIES SCHILLER FLEXNER LL19P Meredith Schultz-6686 Sigrid McCawley20.7 Pro Hac Vice Meredith Schultz Pro Hac Vice Boies Schiller Flexner LLP Las Olas Blvd Suite Ft Lauderdale FL David Boies Boies Schiller Flexner LLP Main Street Armonk NY Bradley20.6 Edwards-250.5 Pro Hac Vice FARMER JAFFE WEISSI21.3NG EDWARDS FI22.7STOS LEHRMAN P.L North Andrews Avenue Suite Fort Lauderdale Florida Paul Cassell Pro Hac Vice S.J Quinney30.1 College of Law University20.3 of Utah University20.3 St Salt UT This day19.9time business address is provided for identification and correspondence purposes only and is not intended to institutional endorsement 10the of Utah for this private representation Case Document Filed Page of CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August I electronically20.5 filed the foregoing document with the Clerk of Court using the CM/ECF sy20.3stem 9.5also certify20.7 that the foregoing document is being served to all parties of record via transmission Electronic Court Filing generated 11CM/ECF Laura A Menninger Esq Jeffrey20.6 Pagliuca Esq HADDON MORGAN FOREMAN P.C East th Avenue Denver Colorado Tel Fax Email lmenninger hmflaw.com jpagliuca hmflaw.com Meredith Schultz Meredith Schultz Case Document Filed Page of
