Sigrid McCawley Telephone ail ccawley bsfllp.com April VIA EMAIL FILED EMPORARY-248 SEAL The Honorable Alison Nathan United States District urt Southern District of New York Foley Square New York New York Re United States Ghislaine Maxwell Cr AJN Rule Subpoena to Boies Schiller Flexner L6 LP Dear Judge Nathan I write behalf of Boies Schiller Flexner LLP BSF in fur6.1 ther support of its jections to Defendant Ghislaine Maxwell 2s motion for an order authorizing a subpoena SF pursuant Rule of the Federal Rules of Crim5.6 inal Procedure the 223Subpoena As the Defendant response akes clear she seeks to serve a Rule subpoena BSF ause she is dissatisfied with the Governm7.1 ent 2s discovery5.3 eff5.3 orts thus far Thus she is using Rul to attempt to obtain discovery that she has been unable to ob tain from the Governm6.1 ent under Rule and Brady including discovery that is subj ect to a pending motion before the Court-21.2 This is an improper of a Rule subpoena If the Defendant believes that the Governm6.9 ent has not fulfilled its discovery obligations under Rule Brady or Giglio ust address that issue with the Governm6.6 and the Court rather than serving overbroad and burdensom7.6 subpoen-6.2 as on third parties And7.1 if the Defendant is not entitled to the discovery she seeks fro6.1 the Governm7.9 ent hen The Defendant ref5 ers to BSF 2s objections as a 223motion to ash but the Court has not yet granted Def9.1 endant 2s motion to authorize the Subpoena to BSF BSF thus requ5.7 ests that the Defendant 2s otion to authorize the Subpoena be denied Case Document Filed Page of BSF BO I ES SC HI LE LEX ER BOIES SCHILLER FLEXNER LLP East Las Olas Boulevard Suite Fart Lauderdale FL 00ll I I bsf lp com The Honorable Alison Nathan April Page of she not use Rule to circumvent Rule For this reason-426.2and the additional-410.1reasons explained below the Court should deny the Defendant?s m8o.2tion to authorize the Subpoena to BSF I Requests Communications About the Defendant and Requests Are Not Specific The Defendant has failed to m7.5eet her burde of dem6.3onstrating that Requests through for a broad range of communications between BS and others about the Defendant and cle6ar Nixon hurdles of relevancy adm8.4i.4ssibility and 6specificity ee Un7ited States Nixon U.S As to specificity Maxwell first argues that Requests through are suff5iciently specific because they are specific as to date and by the identified individuals and subject matter Resp Ltr at But the specificity hurdle requires m7.9ore In order to avoid speculation that the 6.7m7.9oving party is using Rule to circumvent norm)5.9al discovery requirem8.2ents he party?s Rule subpoena must be able to reasonably specify the inform7.1ation contained o5r0 believed to be contained in the docum6.8ents sought rather than m7.8e-.2rely hope that som7ething useful will turn up United States Mendinueta Ibarro Supp 2d S.D.N.Y in5.9tern5.9al quotation om8.7itted Accordingly equests for any and all communications even if 7.5tied to specif ic docum7.1ents and topics are potentially fishing expeditions for unspecified 6.8m8.1aterials and insufficiently specif8.3ic under United States Nixon United States Bergstein No CR PK at S.D.N.Y Feb The Defendant?s broad requests for of BSF?s communications with certain individuals and entities o5v0er a years long tim9.1e period do m8.1eet the specificity requirem8ent just like of the defendant?s requests in Avenatti failed the specificity5 requirem8.1ent For exam5.6ple Judge 7.5Gardephe h4.8eld that Mr 5.5Avenatti?s 8.2?request fo7.8r a ll audio-6.4 record5ings transcripts thereof involv)5i-.2ng eight designated ind5i-.2viduals 4that contain 4a Case Document Filed Page of The Honorable Alison Nathan April Page of discussion of corruption in ateur basketball and that took place within a thirty nine onth-5.9 period failed the specifi6 city require7 m8 ent even though the request was lim9 ited by tim9 subject-8 m8 atter and identified individuals United States Avenatti No S1 CR PGG WL at N.Y Jan holding that request reads like a request under the Federal Rules of Civil Proced ure and that lanket requests of this sort violate the specificity requirem8.2 ent set forth in Nixon Judge Gardephe similarly held th at Mr Avenatti 2s request for6.7 ail and text essage communication5.4 between Franklin and Auerbach that ention Av enatti,5.2 and were transm)7 itted after Ave6 natti March arrest failed Nixon 2s specificity requirem8.1 ent even though hat requ5.4 est was also6.1 ited by tim9.2 subject at ter and identified individuals United tates Avenatti No S1 CR PGG at N.Y Jan Thus there ere fact that the Defen dan 2s requests here are tethered to a broad tim7.7 period of ve years and broa subject atters the Defendant and for exam7 ple-7 cannot save her Requests The Defendant attem6.8 pts to distinguish thes Requests from8.2 those that courts have characterized as proper 223any and all requ5.3 ests5.5 by pointing to the fact that the Requests do not literally contain the wor5.1 ds 223any or 223all Resp Ltr at But this does not change the fact that also e.g Bergstein WL at finding that requests seeking all communications between m8 ar and Bergstein Al bert Hallac Jeffrey Hallac or Keith ellner related to the negotiatio5 ns of docum7.8 entation of and perform7.8 ance or non-perform8.8 ance under three agreem6.1 ents governing the acquisition of the edical billing busin ess described in the indictm7.9 ent and all communicatio5.1 ns between Parm5.9 ar and any of th sam8.1 four individuals related to paym8.1 ents reim8.7 bursement advances or loans f8 or Parm5.8 ar direct or indirect benefit in connection with-323 sam6 agreem6 ents failed Nixon 2s specificity requirem8.1 ent United Sta5 tes Seabrook No WL at S.D.N.Y Oct Cooley Request is quashed on specificity and adm6.9 ibility grounds Cooley Request seeks docum7.3 ents concerning com7 prising communications between Cooley and the Governm8 ent relatin5.2 to any of allegations8.4 in the Indictm11.2 ent Case Document Filed Page of The Honorable Alison Nathan April Page of the Requests themselves ask for comm8unications between BSF and designated party about general topic over a fi5.7ve year period and then define comm7.5unications as all form8.5s correspondence Requ6est for exam6.8ple is for Comm7.7uni-6.3cations between You and the United States Attorney be tween and the date of this subpoena about defining communications as all form8.8s of c-5.2orresponden5ce d5e fining BSF as any owner shareholder,4.7 partner or employee of BSF and defining th 5.6United States Attorney as any em7.2ployee of the off6.3ice of the United States Attorn5.3ey for the Southern District of New York This Request cannot6.2 be read as anything but all omm7.9u-3.9nications in any form8.8 between anyone who has ever worked BSF in any capacity and anyone who has ever 5.7worked at the S.D.N.Y United States Attorn off6.3ice in any capacity between and the date of this subpoena about Thus due to their expansive definitions the Defendant?s requests are even broader than those that Judge Gardephe rejected in Avenatti which were lim8.2i.2ted to identified indiv5.4i.2duals Requests through of the subpoena thus fail Nixon specificity requirem6.9e-.1nt The Defendant conte-6.5nds that Requests th rough are similar to those approved by the court in United States Wey 6.6Supp 3d S.D.N.Y at in Wey the court originally denied the defen5.8d-.2ant?s tion for the iss5.9u-.2ance of a Rule subpoena because it request-7.3e-.7d All em6.7ails and reco4.9rds related to the listing applications and approvals for Sm7.4a.4rtHeat D5.8eer and C5.6leanTech including in particu5.3lar any communications regarding interpretation or application of the round-5.7-lot shareholder requirem7.8ent Id The court found that the defendant had not identified the docum7.9ents sought with the requisite specificity and had failed to necessary showing that all 6.4requested docum7.1ents would be adm7.1i.1ssible at trial but granted the 6.4defendant le7ave to renew6.3 is m8o.2tion and show that Rule requirem8e0nts were m7.9et Id The defendant then subm8itted a new set of requests that unlike the Requests at issue here 5.8lim9ited the request to communicatio5.2n between a certai-21.5n 5specified set o5f0 individuals and-205.8n.2arrow 4.5tim9e periods of approximately5.2 a year or Id defendant?s renewed motion also unlike the Defendant response-252.1h0ere set forth anticipated bases for adm8.1i.1ssion of docum6.1ents at trial 6.6throu5.1gh several specific exceptions to the hearsay rul5.9e Id Thus the court 5granted the renewed Id Case Document Filed Page of The Honorable Alison Nathan April Page of The Defendant argues that Requests through are not a fishing expedition because the governm8e0nt has adm7i0tted that there were in fact m8e.1etings and communications between these indiv5i-.2duals and the SDNY about Ms 4.5Maxwell and and because Virginia Giuff6.1re logged a of mmunicatio5n0s on a privilege log in Resp Ltr at This does not get the Req6.5u.5ests over Nixon hurdl5.9es the Defendant is still attem7p.2ting to fish through BSF?s communicatio4.8n-.2s in the ho pes that som7ething 5.7relevant and 4.7admissib5.2l0e turns up without setting forth the relevance and adm6.8i-.2ssibility as to each docum7.3ent she eeks Further the privilege log does not as the Defendant in sin5.1u.1ates refere5.9nce communications between BSF and the U.S Attorney as defined in the Subpoena as the log references an unspecified law enforcem6ent agency Id at Defendant Has Not Dem7.8onstrat ed Relevance and Adm8.4i.4ssibility The Court?s analysis does not stop at specificity Requests through independently fail-6.1 because 4.5the Defendant has not dem7onstrated 4.5that all of the communicatio5n0s she seeks are relevant and adm7.1i.1ssible sole basis for contending that th wide array of com6.9m2.9unications she seeks are all 5.6relevant to her defe6nse is that the communication5.1s are 6.5relevant to tw6.2o m8.8o1tions to suppress 5.8based on m9.8i-.2srepresentations by the governm7.9e-.1nt to Chief Judge McMa-10.3hon and a motion to dismiss the indictm5.9e-.1nt for prejudicial delay 521b.2ecause they would establish the substance and frequency of 5the communications between BSF and governm7.6e-5.4nt prior to the governm8.1e.1nt?s end run around Martin6.3dell Resp Ltr at But the Defendant has not m7.4et her burden of demonstrating 6relevance an5.4d adm7.2i.2ssibility First b5.1ecause Rule is trial focused a Rule subpoena be used only to obtain m7.7aterials adm6.7i-.3ssible as evidence trial United States Louis No Cr LTS at S.D.N.Y Jan emphasis added see United S4.7t-.5ates Case Document Filed Page of The Honorable Alison Nathan April Page of Rajaratna5.4m Supp 2d S.D.N.Y Ru le was not intended to provide a 8m8.2eans 5of d-5.6i.2scovery for crim8.2inal cases 5rather 4?it chief innovation was to expedite the tria5.4l by providing a and place before trial for the inspec tion of subpoenaed m8aterials emphasis added Defendant has failed to explain how the communicatio5.3n.3s sought in Requests through will releva-5.7n5.1t and adm6.9i-.1ssible at trial and only po4.4ints to thr ee pending pre-trial m7.9o.1tions Second alth5ough BSF fully respond to the De fendant?s relevance argum8.2e.2nts as to the Defendant?s two to suppress-266because-259.3it has no been provided unredacted versi-13.3ons of those m8.7o.9tions and because it has not been provided a copy the Defendant?s ex pa5.1rte m9.3o1.5tion one thing is clear it not conceivable that every communication 4.6the Defendant requests in Requests through would be relevant and admissib le at an 5.2evidentiary 6.2hearing on m8.1o.3tions A defendant de-5.1m7.9o-3.9nstrate th at all of the 4.4evidence it seek pur-23.8suant to a Rule subpoena would be relevant and adm7.5i-.5ssible just that th defendan5.2t0 is lik5.2ely to find som7ething relevant-8 and adm7.4i.4ssible in the nonparty?s production See e.g U7.5n.3ited S5.3t.1ates Pena No Cr AJN WL at S.D.N.Y Feb Pena has fa6.2iled to the requ5.5isite showing regarding the adm8.1i.1ssibility of any and 6.4all other re7.2cords regarding the cooperators that m8.2i.2ght exist at the MDC MCC or DOC For exam5.9ple is entirely unclear communication5.1s egarding 6559would be relevant any of the Defendant?s pretrial motions her two m7.9o.1tions to suppress relate evidence obtained by the Governm6.6e-5.4n-.2t by m7.6eans of a grand jury subpoena to what 4.7appears be If the Court inclined to grant the Defendant m8.3o.5tion as to Requests through BSF requests that it first be provided with an opportunity to fully respond to the Defendant?s relevance5.9 argum8e0nts after being p5.2rovided with unredacted versions of the 21.5two-414.8pretrial the Defendant cites in her response and a copy of 8her ex parte m7.7o-.1tion in which she presum7.7ably-7.1 attem6.7pts to explain the 7.5relevance her Request in a m7.8ore fulsom7.8e-.2 way than her barebones response letter Case Document Filed Page of The Honorable Alison Nathan April Page of BSF and her m8o.2tion to dismiss for pre indictm7.6ent delay is 6.4based the 4.4that has between the at which the Gove6.2rnm6.2ent first 7.2learned of the allegations against the Defendant a nd the Defendant?s indictm8e0nt ECF No Th5.8e public versions of those filings not on at 6.6all Even the relevance of all communicatio4.8n-.2s between BSF and the Governm6.6ent-7.4 relating to the Defendant herself is dubious as it relates to these three 5.2motions base i is not BSF?s burden to to cull the good from7.8 the bad am6.8ong its comm unications about7.3 the Defendant and to determ7.8i-.2ne what would relevant at trial or at an evidentiary hearing See Bowman Dairy Co United States U.S Third the Defendant has not even attem7.6pted to dem6.6onstrate that all of 8.1the evidence she seeks would5.3 be adm7.1i.1ssible Although the lack specificity in Requests through it im6.2possible to m8.2eaningfully debate the adm8.2i.2ssibility of each piece of-237.7evidence she seeks certainly m8a0ny of the communications requested will constitute inadmissible he arsay 11This is precisely the purpose of Nixon specificity requ5.3irem7.1ent-7.9 to ensure that Rule subpoenas are narrowly tailored to o5.6b.6tain only re7levant and adm8i0ssible e-7.9v5.2idence not to obtain discovery in the hopes that som7.5ething relevant and adm7.5i.5ssible m8.5i.5ght turn up-8 and to allow the recipient to lodge relevance and adm6.9i-.1ssibility objection5.1s as to the precise docum7.9ents being requested See-377.1Avenatti at W8.9h.1ile the specifi-5.1city5.1 requ5.1irem6.9ent is intended to provide 5.8the subpoenaed party other party having standing with enough knowledge about what docum6.8e-5.2n0ts are being requested so as to lodge any objection5.2s.4 on relevancy or adm7i0ss ibility,-257.1t0his requirem7e.1nt als-5.6o-249.8ensures that a Rule subpoena will not be used as a fi shing expedition to see what turn up internal quotation marks omitted The Defendant?s criticism8.1 of BSF for not m8eeting its burden of justifying the application of the 4.5work product 11.2doctrine is also due only to the Defe ndant?s overbroad and nonspecific9.9 Case Document Filed Page of The Honorable Alison Nathan April Page of Requests them6.9selves Resp Ltr at In Requests through the Defendant seeks all communications between BSF and its co counsel in a civil litigation against Maxwell Giuffre Maxwell cv between and the date of 4.4this subpoena a bout any meeting with the United S6.1tates Attorney concerning Ghislaine Maxwell Certainly some of these communicatio5.1n.1s if they exist,5.1 ma-8y fall under the 6.3work prod u4.9ct um7.7brella they we5.8re internal d4.8i-.4scussions with co counsel Moreover BSF and its co counsel have a common interest protection in their communications he Defendant?s overbroad Reque sts it 3.6i-5.8m3.2possible for6.4 BSF to determ10.7ine how many responsive com munications would be protected and why Again it is the Defendant?s bu4.9rden to demonstrate that all of the communications she seeks would be relevant 5and adm7i0ssible and it is not BSF?s 4burde to review broad swaths of m8a.1terial to determ6ine what the De6.3fen dant is entitled to under Rule C.-2085.2Communications Between BSF and the Governm8.1e.1nt Are 9.7Procurable Governm6.8ent-8.2 Even if Requests through 9could 8overcom7.3e Nixon three hurdles however Requests and still fail to the extent that they as for 11.5communication5s 9.5with 7.5Governm6.8ent which the Defendant can procure from7.9 the The Defendant admits that the Gov7.4e.3rnm8.2e.2nt has the comm9.7unications she seeking but Governm6.7ent has failed to produce even look for these com6.7m2.7unications and Ms Maxwell has other to ob4.8tain4.8 them Resp Ltr at fact,-220.8this dispute is currently-220.8pending before the Court the Defendant filed a Motion5 for of Parti-6.3c-.3ulars and Pretrial Disclosu res in which 5she order compelling the Governm6.8ent-7.2 to disclose the very-372.7communicatio5n0s with seeks in the Sub6poena and to8 imm9.3ediately disclose all Brady and Giglio m7.9aterials ECF Nos m5.9otion requesting docum6.8ents relating to the Defendant?s two m7.8o0tions to suppres evidence obtained f8.2rom6 what Case Document Filed Page of The Honorable Alison Nathan April Page of appears BSF including all communicatio5n between the Governm7.9e0nt and BSF attorney7.1s.3 David Boies Sigrid McCawley and Peter Skinne and requ5.3esting imm9.1ediate disclosure of Brady and Giglio m9.2aterials The Defendant cannot use Rule to 7.9circum6.9v ent 4.7resolution of an outstanding-326.9discovery dispute with the Governm7.8e-.2nt-8.8 especially when that dispute is 8.8currently pending before the Court-18.8 If the Defendant is entitled to the communicatio4.8n with the 6.4Governm6.7ent-7.3 requests-264.9in Requests and Rule then presum7.6ably the Court will order the Governm6.7ent-7.3 to produce them and she m8a0y not use Rule to obtain a nonparty-283.7i-.2nstead See e.g Nixon U.S at docum6.6(ents requested pursuant to Rule not be otherwise p4.7rocurable from another source United States Cole No CR ER WL at S.D.N.Y Mar explain5.1ing that Rule is the prop5.3er m10.1ethod f5.3or obtain5.3i.1ng 6m8.1aterials that the Governm7.8e-.2nt has an-345.7obligation disclose under 9.2the Jencks Act Br5.3ady and Giglio If the Defendant is not entitled to 5.6obtain the then they are not discoverable under-239.1Rule from8.7 a nonparty-5.8.-.1 See U7.4n.2ited S5.2t0ates Boyle No Cr WL at S.D.N.Y Feb efendants not seek m8.5aterial under Rule that they are prohibited from8.1 obtaining under Rule United States Barnes No S9 CR SCR W9L at Apr I the 6item is not discoverable under Rule party cannot it discoverable 5.7simply subpoenaing under Rule United States Cherry Supp S.D.N.Y Courts be careful that 7.5Rule not turned into a broad discov5.3ery device thereby undercutting the strict lim9.6itation of discovery in crim8.6inal case found in Fed Either way if Governm6.8ent-7.2 has the communications-195.5that the Defendant if she is legally entitled to them she-251.9m8ust get them7 from the Government Case Document Filed Page of The Honorable Alison Nathan April Page of II.-1971.6Requests and Engagement Letters The Defendant provides no explanation at all as to how engagem6.6e-.3nt agreem6.6ents between BSF and Annie and Maria Farm5.6er would be relevan and-249.3a-.2dmissib5le at 7.9trial and thus c5.8a-.2nnot clear the Nixon hurdles She states in a conclusory m7.7a-.3nner that he scope and dates of these engagements are relevant to Ms Ma xwell?s 9pending and 6that these agreem6.2ent-6.8s-.4 exculpatory evidence Resp at Bu7.2t it entirely unclear how 6.8the 6.8fact that the 6.8Farm6ers are represented by BSF and the the enga gement-262.1letter-258.3could possib4.7l-.5y be-256.5exculp4.7atory and the Defendant does not attempt to explain 6.7that-250.2proposition Nor are the engagement letter-5.7s relevant to any 4.6the Defendant?s pretrial m7.9o.1tions Defendant?s m7.6o-.2tions to suppress appear to be base on a theory that the Governm6.8ent im5.8properly obtained evidence from BSF while it was5.1 repr4.9esen ting Virginia Giuff5.9re not the F6.1a-.3rmers in Giuffre 5.7Maxwell EC7.1F Nos relevance of Annie Farm10.9er to the Defendant?s motion for dismissal based on pre-11.8-indictm7.8e nt delay appears to be based on Maxwell?s statement that Ms Farm10.5er 9.3was interviewed by in No But the D6.8e-.6fendant has not-242.4explained how an engagem5.6e-.4nt letter between Annie Farmer and BSF is of any consequence-243t-.7o her theory The 4.4Defendant-335.3also 6.4points her m7.7o-.1tion for dismissal 8based on delay that A7.4nnie Farm6er-279.8m8a0y have cooperated with the Governm7.2ent in the 12.1crim8.2inal investigatio5.4n5.4 of her abuser an unrem10.3a.3rkable proposition-7.5..5 Id at Not only is it unclear how this theory supports the Defendant?s argum7.8e-.2nts about but the Defendant again has-281.7not explained-253.6h5.1ow an engagem5.9e-.1nt letter with BSF is releva-7nt to this-253theory As to Maria Farm5.8er she is only relevant to the m7.8o0tion for dism9.8issal based on pre-indictm7.8e-5.2n0t delay insofar as the Defendant argues that the Governm7.9e-.1nt knew about the allegations against the Defendant-2.3when Maria Farm10.7er reported them to th 7.5NYPD years ago ECF Case Document Filed Page of The Honorable Alison Nathan April Page of No Again however the Defenda nt does not explain why Maria Farm6.2er?s engagement letter with B7.1SF is relevant to support this p4.8roposition is otherwise relevant to the motion The Defendant?s conclusory argum8e0nts-7.6 that the engagem6e0nt le tters between BSF and Farm6.3ers are relevant to som8.3ething other im6.3peach ment are unpersuasive and dem6.6onstrate that she cannot clear Nixon relevance hurdle as to Requests and I.-1581.7Request Grand Jury Subpoena to BSF Request for5.9 the reason 7.5that Request and fail If the Defendant is entitled to this inform8.2ation then she obtain it from8.2 Government And if she is not entitled to inform7.1ation she cannot use Rule to circumve-5n.2t Rule lim6itations See supra I.C quest Annie Farmer?s Journal As to the Defendant?s request for an original copy of Annie Farm6er?s entire journal when she was a teenag5er Defendant conte5.8nds that the journal is exculpatory5.7 because relevant pas5.2s.2ages m7.8e-.2ntion the 4.5Defendant but this is inform6.5ation that she already has and8.7 she does not explain wh7.1y she needs the entire journa prior to trial she already has the allegedly exculpatory-318.5i0nform7ation journal The Defe ndant-327.7already has copies of all of the relevant pages the journal.-450She does not explain hy she needs to insp ect-227.9the entire 6journal estab4.6l.4ish whether the journal is authentic and com7.7p-.1lete and whether or no spoliation has occurred Re-2.7sp Ltr at This purported need to inspect 6.1the journa for authentici-21.7ty wo6.8uld carry more weight the journal was inculpatory,-190.1and thus she sought to exam5.7ine the authenticity of the containing4.9 allegations 6against her 6.7but she contends it is 8instead exculpatory Defendant-395.3seriously contends that the journ5.3al is relevant because it exculpatory5.1 4.9and that it is exculpatory because BSF also points the Court to the 8objections that 6Ms Farm5.8er has herself posed in resp6onse to the Defendant?s proposed Rule subpoena to her in whic the Defendant requests the journal from Ms Farm6er Case Document Filed Page of The Honorable Alison Nathan April Page of the relevant pages do not m8e0ntion her 7.5she need no 7relevant 6pages that-255.5she 6already has It is thus clear that the Defendant?s purported n4.9eed for the 3.8entire original journal is not based on the allegedly-409.9exculpatory inform6.9ation that it contains because she 15.9already has that inform6.7ation Rather the Defendant seeks the entir journal so that she can fish for other passages that she can use to attempt to ach Ms Farm6.2er?s credibility Suc a fishing expedition potential 5impeachm6e0nt m8aterial goes beyond th perm7.9issible bounds of a Rule subpoena See Nixon U.S at Generally the eed for evidence to im6peach witnes ses is 4.5insuff5.1icient require its pr-6.8oduction in advance of 9t rial An6.8d Defendant does not seek the rem9.6a-.3inder of the journal p4.8a-.4ssages for im5.6peachment-7.4 she does no4.8t explain4.8 ho4.8w they would otherw7.8ise be 6relevant and adm6.6i-.4ssible at trial The Court 7.3should not require production of the entire journal which contains personal private inform6.9ation about Ms 4Farm5.9er when a if Defendant unable to o5.5v.5erbroad Reque st m8.4eets the relevance and adm8.4i.4ssibility5.6 requirem8ents and if it will yield no material evidence Even in civil cases where broader disc overy perm8itted under the F-8.3e0deral Rules of Civil Procedure-297.8than under Rule courts have refused to order disclosure of an entire diary or 4.2journ5.3al the 5.2journal contains personal or se nsitive 4.4entries and the pa rty seekin5.2g disclosure cannot demonstrate that anything relevant has been w-11.1i-.1thheld See e.g Dubay King No at M.D Fla Ju ly Plain5.2t0iff6.2 failed to show how the production of King?s 8.2private journal en tries-5.2?containing info6rm5.8ation about Mr King?s private life and daily m7.8u-4sings relate to the subject ter of 8.8the claim6.8s in this lawsuit Combe Cinemark USA Inc No W4L at Utah Aug W6i0thout any 4.7limit on 5.7relevancy the entire ourn4.9al is not discov4.9erable A plaintiff does not expose her entire priv ate6 life 7to adverse scrutiny filing suit.5.2 Quiroz Hartgrove 7Hosp No W9L0 at N.D Ill June plaintif8.1f.1 in a 3.6sexual harassm6.9e-.1nt-7.1 suit was5.2 only required to tu rn over portions of her diary that pertained to her cl-8.8aim Aya5.1la CIV A RCL at D.D.C ov denying m8.1o.3tion to com7.2p.4el all personal d5.4iary entries because m7.2ost the m8.1aterial will be irrelevant to this case but of 8.6intim6ate im6portance to the plaintiff Carolan New York Telephone No Case Document Filed Page of The Honorable Alison Nathan April Page of V.-2031.8Requests Boots and Photographs As to Requests and for boots that Eps tein and 5Def8.8e-.4ndant purchased 7for A7nnie-7.3 Farm5.9er and various photographs the 5Defendant com7.9p.1lains-247.4that the-243.4governm5.6ent has scrupulously avoided actually ob5.2taining 3.5this evidence Res5.1p Ltr at But as explained above Rule not a tool 6.4that can be used to circum7v.2ent discovery disputes with the Governm8e0nt BSF is a priv5.2a.1te entity with Brady or other constitutional obligations to the Defendant and subpoena 5.4BSF cannot be used to repla-5.7c3.9e discovery appropriatel aimed at the Government under to avoid resolving discovery disputes the Governm5.8ent-10.5 In any event the photographs are not adm5.8i-.2ttedly relevant and the Defendant has not explained how they would be 5relevant and ssible as trial Resp at Th6e photographs do not portray any event described in the indictm5.8ent Instead the photographs depicted in Exhibit to the Sub6.1poena that the Defendant seeks are as follows AFARMER010470 AFARMER011691 Photographs of A5.3nnie Farm5.9er prior to a high school dance produced in Farmer Indyke et LGS-DCF AFARMER011339 Photograph-246.9of A5.3nnie Maria Farmer and their younger sister produced in Farmer Indyke et al LGS DCF AFARMER011688 AFARMER011690 Photographs of A5.4nnie Farm6er in Thailand produced in Farmer Indyke et al LGS-DCF AFARMER011689 AFARMER011693 AFARMER011694 Photographs of A5.3nnie Farm5.9er and a friend in school produced in Farmer Indyke et al LGS-DCF AFARMER012106 AFARMER012107 Photographs of Maria Farm6er on Leslie W6.1e0xner?s property in Ohio produced in Farmer Indyke et LGS-DCF GIUFFRE007164 GIUFFRE007182 Photographs that Virginia Giuffre provided to the FBI of Jeffery Epstein5?0s various prop5erties of herself at those properties and of herself th6.3e Defendant and Prince A5.5ndrew in London produced in Giuffre Maxwell Far mer Indyke et al LGS-DCF Civ WL at May equiring the 7.4plaintiff6 to turn over the portions of5 diary that 5.7pertained to 5.7her claim6.8s but to withhold portions she deem5.6ed irrelevant Case Document Filed Page of The Honorable Alison Nathan April Page of The Defendant has not explained ho5w any of the photographs are relevan7.1t to her defense and would help5.2 in establishing her innocence or wh the dates of creation or other specifics about these photographs are relevant to her defen6.3s.5e Resp Ltr at VI.-1641Request Mat-7.3erial Request is Not Specific The Defendant does no5t even ad dress the 7.5specificity of her Request for any subm6.8ission to the Epstein Victim7.9?s Com7.9p.1ensation Program6.9 by You including any claim8.2s on behalf of-266.6persons wh7.1o have accused Jeffrey Epstein Ghislaine Maxwell of 5.8any m7.9i-.1sconduct,7.1 any releases-376.3signed by You or Your Clients and any com7.9p-3.9ensation received by You or Your Clients This Request on its face includes all claim6.4s that 5.3BSF has subm8.4itted on behalf of all of its clients including all of the supporting 8docum7.1ents including sensitive m7.7e-.3dical and therapy records that each client As BSF explained in its objections the Defendant cannot m7.8e-.2rely request every piece of highly confidential inform6.9ation that BSF?s 7clients7.3 subm6.8itted to the Program in the hopes that som ething relevant and adm8.3i.3ssible turns up Defendant-290.6off6.2ered to narrow-287.6this-286.6Request to EVCP Material subm8.5itted behalf of-292.3victim6.5s 5.3who ultim6.6ately testify in this action Th6is narrowing does not change the improper nature of Request even the narrower request 9.7would call-274.2for broad sw aths of m8.1aterial that are 5.1irrelevant to the charges against the Defendant and th at are highly sensiti5.6ve in nature-14.7 Not Dem7.7o-4.1nstrated Re5.8levance Other Than Potential Request independently-296.1fails because efendant seeks Material-298.4only im6peach purposes The4.7 Defendant argues that the EVCP Material is 8.3not m6.9ere im5.9peachment m8.7aterial be cause it is also Brady material at This argum10.4ent does not this Request proper under Rule First the Defendant does not explain how the EVCP Material is Case Document Filed Page of The Honorable Alison Nathan April Page of exculpatory Although BSF does not have the benefit of the ex parte subm6.7ission that the Defendant cites she appears to contend that the EVCP Material will contrad ict the Governm7.1ent-6.9?.3s theory to the Defendant?s m8o.2tive for comm8i-6t0ting the cr of which she has been indicted procuring underage girls for Epstein at But the Defendant does not exp-8.5lain how7.4 the EVCP Material consisting of claim6.9s subm6.9itted by v5.1ictim5.9s to an independ5.3ent program7.2 materials 3supporting those claim6.2s such as 6medical and therapy records and)5 com7.1p.3ensation determ6.1inations for those claim7.1s could possibly co ntradict the 6G7.2overnm7.8e-.2nt?s theory that she comm9.3itted crim8.3es with the motive of procuring young girls for Epstein Second deem7.6ing the EVCP Material Brad5.1y aterials does not render the Req5.8u-.2est appropriate 6under Rule even if such a character ization4.9 correct 203Although the Governm6.7ent has a constitutional-291.8duty to produce Brady m7.9aterials BSF has no such obligation Th6.1us even if the Requests in 3.5the Subp6.1oena includ5.1i-.1ng the Req6.1u.1est for EV8.3CP Material might encompass Brady m8.3aterials the 8Sub6.5poena still satisfy the Nixon requirem8.3e.3nts See e.g Mendinueta Ibarro Supp 2d rejecting the defendant?s argum8.1e.1nt Rule the stringent requirem7.2ents of Nixon do not a defend6.1ant needs the requested inform6.9ation for a fair trial especially if that is requ7.4ired to be 5.6turned over Brady or Giglio United States Jackson No CR LMM at S.D.N.Y July expl aining that the m7.9aterials6.3 contain Giglio m7.7aterial does m7.7ean that they can be subpoenaed under Rule and quashing subpoena for failing Nixon adm7.9i-.1ssibility requirem7.9e-.1nt United States Scaduto No CR at S.D.N.Y Mar Again if the Court is inclined to grant the Defe ndant?s m7.8o-4tion as to Request BSF requests access to the Defendant?s ex parte subm7.5ission so it can m7.5ore fully and fairly respond to the Defendant?s theory of relevance Case Document Filed Page of The Honorable Alison Nathan April Page of A general a ssertion 6.3that certain m7.9aterial m8.9i.9ght contain exculpatory inform7.7ation is insuff5.1icient to prevail 5against a tion to quash under Rule B6.9SF has no duty to cull 5.7through broad sets of docum8.3ents to d5.5eterm6.3ine whether 5.6any Brady m8.4aterials m8.4i.4ght exist-452.6a.4nd w7.8h.6ether 4.3those m8.1aterials w7.5ould relevant 5.7and adm8.1i.1ssible-292.5when the Defendant has failed to 5.3her burden of satisfying Nixon requ5.3irem8.1ents Sim7i0larly the Defenda-6nt likely realizing that she has no viable argum8e0nt as to the relevance of all of the EVC Material 11.5argues that ev en if the 6.6EVCP Material was relevant only im5.9peachment evidence is d5.1i-.1scoverable in advance of Ltr at This is a m7.8i-.2scharacterization of the law Each of the cas es the Defendant cites relates the Go7.2vernment?s obligations under Brady and Giglio See-271.7P-.8oventud City of New York No CIV DAB at S.D.N.Y Mar civil in which crim8.4inal defendant-5.6 contended that government vio5.2lated Brady obligations United States Petrillo F.2d 2d Cir affirm8.2i-5.8ng denial of a for a new trial based governm8.2e.2nt?s failure produce Bra5d0y and Jencks Act m7.7aterials Grant Alldredg4.8e F.2d 2d Cir vacating judgm7.9e-.1nt 6of conviction based 5on Brad5.1y violation-257.2b5.5y.5 governm6.3ent U.S ex rel Meers Wilkins F.2d 2d Cir affirm8i0ng-5.8 grant of habeas corpus petition on Brady violation-229.9by government Not one of the cases that the Defendant cites concerns subpoena a nonparty-239.4b5.3ecause it is well-settled law that a crim8.7inal defendant not use a Rule subpoena to ob5.1tain5.1 po5.1tential im5.9peachment evidence from8.9 a nonpart-7.4y.5.1 WL at Nathan Rule subpoenas m8a0y not issue pri6or to trial to obtain m8aterials usable only to im6.2peach For all of the foregoing Defendant to authoriz7.3e serv5.5ice the Subpoena on BSF should be-253.8denied Case Document Filed Page of The Honorable Alison Nathan April Page of Respectfully subm7itted Sigrid S.-244.7McCawley Sigrid McCawley Case Document Filed Page of
