Case Document Filed Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK I LY FF VIRGINIA GUIFFRE Plaintiff Civ RWS against GHISLAINE MAXWELL Defendant A PPE ARA CES Counsel for Pl aintiffs BOEIS SCHILLER FLEXNER LLP East Las Olas Boulevard Suite Fort Lauderdale FL By Sigrid Mccawley Esq Meredith Schultz Esq Counsel for Defendants HADDON MORGAN AND FOREMAN P.C East Tenth Avenue Denver CO By Laura A Menninger Esq Jeffrey Pagliuca Esq OPINION Case Document Filed Page of Sweet D.J Eight discovery motions are currently pending before this court Plaintiff Virginia Giuffre Giuffren or Plaintiff ll has moved for an order of forensic exam ination ECF No As set forth below this motion is granted in part and denied in part Defendant Ghislaine Maxwell Maxwell or Defendant as moved to compel Plaintiff to disclose alleged on-going criminal investigations by law enforcement ECF No As set for below this motion is denied Plaintiff has moved to compel Defendant to answer deposition questions ECF No This motion is granted Defendant has moved to compel non-privileged documents ECF No As set forth below this motion is denied Plaintiff has moved for leave to serve three deposition subpoenas by means other than persona service ECF No As set forth below this motion is granted in part and denied in part Defendant has moved to compel attorney-client communications and work product ECF No As set forth below this motion denied Case Document Filed Page of Plaintiff has moved to exceed the presumptive ten deposition limit ECF No As set forth below this motion is granted in part and denied in part Plaintiff has moved for leave to file an opposition brief in excess of the pages permitted under this Courts Individual Rules of Practice This motion is granted I Prior Proceedings Familiarity with the prior proceedings and facts of this case as discussed in the Courts prior opinions is assumed See Giuff re Maxwell No Civ RWS WL S.D Feb Giuffre Maxwell No Civ RWS S.D.N.Y May Plaintiff filed her motion for clarification of the Courts March Order and for forensic examination on April By Order dated April the motion for clarification was denied on the basis that further clarification was unnecessary Oral argument was held with respect to forensic examination on May at which time the matter was deemed fully submitted Case Document Filed Page of Defendant filed her motion to compel Plaintiff to disclose ongoing criminal investigations by law enforcement or in the alternative to stay proceedings on April Oral argument was heard and the motion granted in part and denied in part on April Plaintiff was directed to submit the relevant materials for in camera review Plaintiff did so on April Plaintiff filed her motion to compel Defendant to answer deposition questions on May Oral argument was held on May at which time the matter was deemed full submitted Defendant filed her motion to compel non-privileged documents on May By Order dated May the motion was set for argument on June The motion was taken on submission on that date Defendant filed a reply on June Plaintiff filed her letter motion for leave to serve three depositions subpoenas by means other than personal service By Order dated May the motion was set for argument on June The motion was taken on submission on that date Case Document Filed Page of Defendant filed her motion to compel attorney-client communications and work product on May By Order dated May the motion was set for argument on June The motion was taken on submission on that date Defendant filed a reply on June Plaintiff filed her motion to exceed the presumptive ten deposition limit on May By Order dated une the motion was set returnable on June at which time the motion was deemed fully submitted Plaintiff filed her motion for leave to file excess pages on June II Applicab1e Standards Rule create many options for the district judge to manage the discovery process to facilitate prompt and efficient resolution of the lawsuit a Crawford-El Britton Ct Ed 2d It vests the trial judge with broad discretion to tailor discovery narrowl and to dictate the sequence of discovery a Crawford-El Britton Case Document Filed Page of Ct Ed 2d The District Court may expand or limit the permitted number and time limits of depositions direct the time place and manner of discovery or even bar discovery on certain subjects and ma set the timing and sequence of discovery Id at Fed Ci A Consequent the ourt has wide discretion in deciding motions to compel See Grand Cent Pship Inc Cuomo F.3d 2d Cir.19 Federal Rule of Civil Procedure states Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense including the existence description nature custody condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter For good cause the court may order discovery of any matter relevant to the subject matter involved in the action Fed Civ If a party objects to discovery requests that party bears the burden of showing why discovery should be denied Freydl Meringolo Civ BSJ KNF WL at S.D.N.Y June Case Document Filed Page of I The Motion For an Order of Forensic Examination Is Granted in Part and Denied in Part Federal Rule of Civil Procedure requires the parties to state their views and proposals as to preservation of electronically stored information ESin and the form of production of ESI Fed Civ Defendant having admitted to deletion practices that indicate relevant documents and also refused to detail document search methods good cause exists to warrant court supervised examination of her electronic devices Accordingly Plaintiffs motion is granted in part Defendant is ordered to collect all ESI by imaging her computers and collecting all email and text messages on any devices in Defendants possession or to which she has access that Defendant used between the period of to present Defendant is further directed to run mutually-agreed upon search terms related to Plaintiffs requests for production over the aforementioned ESI and produce responsive documents within days of distribution of this opinion Case Document Filed Page of IV The Motion to Compel Plaintiff to Disclose Ongoing Criminal Investigations is Denied The public interest privilege exists to encourage witnesses to come forward and provide information in criminal investigations carried out by law enforcement without fear that the information will be disclosed.n Sanchez by Sanchez City of New fork A.D.2d N.Y.S.2d A party seeking discl sure of such information first must demonstrate a compelling and particularized need for access beyond general and conclusory allegations Id The Court then weighs application of the qualified privilege by balancing the need for production against the potential harm to the public from disclosure Id After review of the materials in camera the qualified public interest privilege as set forth in Sanchez has been established with respect to the submitted documents Defendant has articulated no need for the documents Accordingly the ba ance weighs in favor of the privilege and the motion to compel is denied To preserve the record Plaintiff is directed to file under seal a comprehensive copy of the log and documents within days of distribution of this opinion Case Document Filed Page of REDACTED Case Document Filed Page of REDACTED Case Document Filed Page of VI The Motion to Compel Non-Privileged Documents is Denied in Full Defendant has sought to compel the following documents attorney-client communications regarding media advice pre existing documents transmitted to counsel documents shared with or communicated to unidentified third parties documents primarily for the purpose providing bus iness advice documents subject to an unidentified common interest or joint defense protection Plainti ff has represented that all responsive attachments Defendant seeks to compel have been produced Accordingly this request is denied Defendant seeks to compel attorney-client communications that include third parties on the basis that Plaintiff privilege log is deficient for identifying individuals as professionals retained by attorneys to aid in the rendition of legal advice A review of Plaintiffs privilege log shows Plaintiff has expressly claimed privilege described the nature of the withheld documents communications and tangible things not produced and generally logged communications in compliance with Federal Rule Civil Procedure A ii Un less Case Document Filed Page of the client waives privilege an attorney or his or her employee or any person who obtains without the knowledge of the client evidence of a confidential omrnunication made between the attorney or his or her employee and the client in the course of profess.ional employment shall not disclose or be allowed to disclose such communication nor shall the client be compelled to disclose such communication N.Y C.P.L.R McKinney emphasis c1dded The condu explicitly desc ibed by statute as privileged does not operate as waiver and again Defendant has provided no factual basis to suggest Plaintiff has misrepresented the identity or role of the third-parties listed Defendants request is denied Defendants challenge to the corrunon interest privilege claims is likewise unavailing Regardless of whether Plaintiff has reflexively claimed the common interest privilege in each entry does not vitiate the otherwise applicable privilege claims made and Defendant has provided no factual foundation to establish waiver or failure of the other claimed privileges Finally ith respect to the media and business advice communications Defendant has marshaled no evidence to support her speculation that the documents logged as privileged are improperl withheld other than the fact that one member of Case Document Filed Page of Plaintiffs legal team is an author Plaintiff has represented to the Court and via a detailed privilege log that the communications in question are privileged Stan Pottinger the author in question is a barred attorney of record in this case incomparable to Defendants media agent and non-attorney Ross Gow That Pottinger has written non-legal material or even whether his primary occupation in the most recent years is as a novelist is irrelevant to whether his communication with Plaintiff as her counsel was for the purpose of providing legal advice Similarly Bradley Edwards who Defendant has already challenged is an attorney of record in this case and Defendant has provided no evidence other than the fact of his representation of Plaintiffs non-profit to doubt that the communications logged are privileged Having provided no grounds to doubt the sworn representations of Plaintiffs counsel Defendants motion to compel these communications is denied Defendant is granted leave to refile the motions with respect to media and business advice on the basis of relevant and non-specious factual support Court intervention should not be invoked to resolve routine discovery matters on the basis of a supposition of bad faith Further filing of frivolous or vexatious motions lacking sufficient factual support to support a colorable argument or Case Document Filed Page of on the basis of misrepresented or false facts or law will be met with sanctions VII The Motion for Leave to Serve Three Deposition Subpoenas By Means Other than Personal Service is Granted in Part and Denied in Part Plaintiff seeks to compel subpoenas to serve Nadia Marcinkova Sarah Kellen and Jeffrey Epstein The request is denied with respect to Epstein as moot No opposition having been filed and the testimony of Marcinkova and Kellen being relevant to falsity of the defamation at issue the motion is granted with respect to Marcinkova and Kellen VI The Motion to Compel Attorney-Client Communications and Work Product is Denied Defendant argues that Edwards and Cassell preemptively filed an action against Dershowitz proclaiming they did not violate Rule and in doing so they voluntarily put at issue and relied on a their good faith reliance on information communicated to them by Plaintiff and their work product Case Document Filed Page of showing that their filing was reasonably investigated and substantially justified Def Reply in Supp Mot to Compel all Atty-Client Comms and Atty Work Product at Def.s Reply on AC The Broward County Florida Court ruled on this argument in Edwards and Cassell Dershowitz and Defendant argues in reply that this order is non-binding and was issued prior to Plaintiffs testimony Id at Defendant was not a party to the Florida case Nevertheless Defendants argument is nearly identical to Dershowitzs Defendant argues Plaintiffs testimony arose after the ruling in the Florida case however the principle of that argument is the same Defendant placed her attorney-client communications with Edwards and Cassell at issue by relying on the content of those communications in Edwards and Cassell Dershowitz The Florida Courts ruling is therefore highly relevant privilege has not been waived The motion is accordingly denied The Court declines to address the choice of law issue as application of Florida or New York at-issue doctrines are not outcome determinative in this instance and thus no determination is necessary Compare Coates Akerman Senterfitt Eidson P.A So 2d Fla Dist Ct App for waiver to occur under the at issue doctrine the proponent of a privilege must make a claim or raise a defense based upon the privileged matter and the proponent must necessarily use the privileged information in order to establish its claim or defense with Chin Rogoff Co P.C No CIV Case Document Filed Page of REDACTED Case Document Filed Page of REDACTED Case Document Filed Page of The Motion for Leave to File Excess Pages is Granted Plaintiff sought leave to file excess pages in response to Defendants motion to compe attorney-client communications and work product To the extent the motion is not moot leave is granted XI Conclusion As set forth above the motion for an order of forensic examination is granted in part and denied in part the motion to compel Plaintiff to disclose alleged on-going criminal investigations by law enforcement is denied the motion to compel Defendant to answer deposition questions is granted the motion to compel non-privileged documents is denied the motion for leave to serve three deposition subpoenas by means other than personal service is granted in part and denied in part the motion to compel attorney-client communications and work product is denied the motion to exceed the presumptive ten deposition limit is granted the motion for leave to file an opposition brief Ln excess the pages permitted under this Courts Individual Rules of Practice is granted This opinion resolves ECF Nos and Case Document Filed Page of For purposes of managing the filings in this case the parties are further directed to comply with the Court Individual Rules of Practice by providing all future moti on papers in their full non-redacted form complete with related declarations and exhibits in a single complete bound hard copy delivered to Chambers at the time of filing All soft-copies mu be provid by attachment of a single PDF in full non redacted form including all related declarations and exhibits irrespective of whether each attachment or declaration is intended to be filed under seal Soft-copies must be provided in addition to not in lieu of hard-copies This matt being subject to a Protective Order the partie are directed to meet and confer regarding redactions to thi Opinion consistent with that Order The parties are further directed to jointly file a proposed redacted version of this Opinion or notify the Court that none are necessary within two weeks of the date of receipt of this Opinion It is so ordered Case Document Filed Page of New York NY June J.,o D.J
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