X-2HIBI-3T Case Document Filed Page of Case Document Filed Page of Case Document Filed Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA GillFFRE Plaintiff GHISLAINE MAXWELL Defendant DEFENDANTS RESPONSE IN OPPOSITION TO MOTION TO EXCEED PRESUMPTIVE TEN DEPOSITION LIMIT Laura A Menninger Jeffrey Pagliuca HADDON MORGAN AND FOREMAN East th A venue Denver CO Case Document Filed Page of case Document Filed Page of Defendant Ghislaine Maxwell Ms Maxwell files this Response in Opposition to Plaintiffs Motion to Exceed Presumptive Ten Deposition Limit and states as follows INTRODUCTION Despite having taken only three depositions to date Plaintiff prematurely requests permission to exceed th.e presumptive ten deposition limit imposed by Fed Civ a A and to conduct separate depositions almost twice the limit i thout legal support Plaintiff attempts to conflate the presumptive time limitation for each deposition of seven hours with a right to take a total of hours of depositions This is an absurd reading of the Federal Rules The presumptive ten deposition limitation is an independent limitation and speaks to the number of separate deponents not deposition time Indeed the two independent limitations do not even appear in the same section of the rules The heart of Plaintiffs argument is that Ms Maxwell inconveniently testified and denied Plaintiffs claims rather than invoking the Fifth Amendment This dashed Plaintiffs apparent hope to obtain an adve se inference rather than actually having to prove her case against Ms Maxwell Instead Ms Maxwell fully testified for the entire hours responded to all questions posed to her and testified based on her actual knowledge Ms Maxwells testimony simply bears no relevance to Plaintiffs request to take more than depositions of non-party witnesses Conspicuously absent from Plaintiffs motion are a any actual information she believes these witnesses may provide which is neither cumulative nor duplicative of other information already disclosed in this case the fact the information can be obtained from other sources Plaintiff flatly mis-represents to th Court that Ms Maxwell refused to answer the questions posed to her as the actual transcript amply demonstrates Ms Maxwell did not avoid any questions and answered all questions to the best of her recollection relating to alleged events years ago The majority of the bullet point summary of the matters about which Ms Maxwell could not testify were based either on a lack of any personal knowledge or the fact that the events claimed by Plaintiff did not actually happen Case Document Filed Page of case Document Filed Page of and facts demonstrating that the burden and expense of the discovery is justified by the needs of this case Indeed she has not esta blished that the testimony i even relevant to the actual issues in this matter Plaintiffs inability to establish these factors requires denial of the motion I PLAINTIFFS REQUEST IS PREMATURE First the request to exceed the presumptive ten-deposition limit is premature Courts generally will not grant leave to expand the number of depositions until the moving party has exhausted the ten depositions permitted as of right under Rule a A or the number stipulated to the opposing party Gen Elec Co Indem Ins Co of Am No CFD WL at Conn May This guideline makes sense because a moving party must not only justify thos depositions it wishes to take but also the depositions it has already taken Id citing Ban-aw Greenville Jndep Sch Dist F.R.D N.D Tex This rule is in place because a party could indirectly circumvent the cap on depo sitions by exhausting the maximum allotted number to those that she cou ld not justify under the Rule standards and then seek leave to exceed the limit in order to take depo sit ions that could substantiate Id at Here Plaintiff seeks a pre-emptive determination that she should be permitted depositions almost twice the presumptive limit yet her proposed depositions are not calculated to lead to admissible vidence in this case By way of example Plaintiff identifies Nadia Marcinkova Sarah Kellen a/k/a Sarah Kensignton or Sarah Vickers and Jeffrey Epstein as alleged co con spirato with each other She requests the depositions of each Plaintiff anticipates each will invoke the Fifth Amendment in other words she will not obtain any discoverable information from them Case Document Filed Page of case Document Filed Page of Plaintiff makes a bizarre argument that somehow this testimony can be used to create an adverse inference against Ms Maxwell despite the fact that Ms Maxwell did not invoke the Fifth Amendment and she testified fully and answered every question posed to her with the only exception the irrelevant and harassing questions Plaintiff posed to her concerning her adult consensual sexual activities In other words depositions of Marcincova Kellen and Epstein would serve Plaintiffs goal to make a convoluted legal argument not to actually seek discoverable information In light of this the burden or expense of the proposed discovery outweighs its likely benefit considering the needs of the case the parties resources the importance of the issues at stake in the action and the importance of the discovery in resolving the issues A tkinson Goard No CIV LAKHBP WL at S.D.N.Y Apr Fed Civ If Plaintiff chooses to use her depositions in this manner she risks utilizing three of her available IO depositions for an illegitimate purpose She should not be rewarded with a pre-emptive carte blanche in advance to take additional depositions II THE PROPOSED DEPOSITIONS ARE CUMULATIVE DUPLICATIVE AND NOT RELEVANT TO THE CENTRAL ISSUES OF THE DISPUTE Plaintiff has not met the requisite showing to permit in excess of depositions in Sigala Spikouris CV ILG WL at E.D.N.Y Mar the Court set forth the general principles relevant to a partys application to conduct more than ten deposition Invocation of the Fifth Amendment by a third party witness cannot be used to create an adverse inference against a party in a civil action See United States Dist Council of New York City Vicinity of United Bhd of Carpenters Joiners of Am No CN CSH WL at S.D.N.Y May the general rule is that an individuals claim ofFifth Amendment protection is personal and does not give rise to adverse inferences against others Brenner World Boxing Council F.2d 2d Cir cert denied U.S Furthennore since King was a non-party witness no adverse inference against appellees could have been drawn from his refusal to testify Case Document Filed Page of case Document Filed Page of The Federal Rules presumptively limit the number of depositions that each side may conduct to ten See Fed.R.Civ a A A party must obtain leave of court which shall be granted to the extent consistent with the principles stated in Rule if a proposed deposition would result in more than ten depositions being taken accord Universal City Studios Reimerdes Supp.2d Landry St James Parish Sch Bd No Civ A WL at E.D.La Nov The purpose of Rule a A is to enable courts to maintain a tighte rein on the extent of discovery and to minimize the potential cost of ide-ranging discovery Whittingham Amherst Coll F.R.D citation omitted Accordingly the mere fact that many individuals may have discoverable information does not necessarily entitle a party to depose each such individual Dixon Certainteed Corp F.R.D The factors relevant to determining whether a party should be entitled to more than ten depositions a now set forth in Fed.R.Civ.P and include whether the discovery sought is Unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient le ss burdensome or ess extensive the party seeking discovery has had ample opportunity to obtain the information by discovery in the action and the burden or expense of the proposed discovery outweighs its likely benefit considering the needs of the case the parties resources the importance of the issues at stake in the action and the importance of the discovery in resolving the issues Atkinson WL at D.N.Y Apr internal quotations omitted Rule has since been modified to read i the discovery sought is unreasonably cumulative or duplicative or can be obta ined from some other source that is more convenient less burdensome or less expensive ii the party seeking discovery has had ample opportunity to obtain the infonnation by discovery in the act ion or i the proposed discovery is outside the scope permitted by Rule The scope of discovery permitted by I is non-privileged matter that is relevant to any partys claim or defense and proportional to the needs of the case considering the impo rtance of the issues at stake in the action the amount in controversy the parties re la tive access to relevant information the parties resources the importance of the discovery i resolving the i ssues and whether the burden or expense of the proposed discovery outweighs its likely benefit Thus the factors to be considered have simply been moved to a new nwnber with cross reference Case Document Filed Page of cas Document Filed Page of Weighin,g these factors there is no basis for permitting more than the presumptive ten deposition imit First as high1ighted by the motion the information purportedly sought is cumulative and duplicative By way of example Plaintiff has already deposed Johanna Sjoberg a former Epstein employee Juan Alessi a former Epstein employee and David Rodgers former Epstein Pilot She further seeks to depose Maria Alessi and Jo Fontanella former Epstein hou se hold employees as well as Dana Bums and Emmy Taylor identified as assistants to Ms Maxwell or Mr Epstein The information Plaintiff claims each of the witnesses may have is identical to that of each other what they observed while working for Epstein Plaintiff goes so far as to state that Maria Alessis deposition is expected to corroborate the observations of her husbands Plaintiff admits that the purpose in seeking the additional depositions is obtaining witnesses like Ms Sjoberg who can corroborate that Plaintiff is telling the truth Yet Ms Sjoberg did not corroborate that Plaintiff i telling the truth Instead she testified that Regardless Plaintiff is lookin in vain for more testimony of exactly the same character precisely the type of testimony the presumptive limit is intended to prevent Similarly the expected deposition testimony of former Palm Beach Detective Joe Recarey and former Palm Beach Police Chief Michael Reiter are duplicative of each other Mr Rodgers deposit ion held ast Friday a requiring a separate trip to Florida for Colorado counsel a fter the scheduled court bearing on Thursday served simply to authenticate flight logs There are fur more convenient less burden ome and less expensive methods by which such info rmation could have been obtained uch as a verifying affidavit yet Plaintiff chose to unnecessarily burden counse i the witness and counsel for the witness with a hour deposition to accomplish the ame end Case Document Filed Page of case Document Filed Page of Putting aside the admissibility of this testimony it appears that both men were involved in the investigation of Mr Epstein and are expected to testify about their investigation Plaintiffs allegations were not a part of their inv stigation which took place years after Plaintiff left the country Moreover their in estigation did not involve Ms Maxwell Ag a in such duplicative and irrelevant deposition testimony speaks to the intended purpose of the ten-deposition limit not a reason to exceed that limit The same holds true for Nadia Marcinkova Sarah Kellen a/k/a Sarah Kensignton or Sarah Vickers and Jeffrey Epstein each of whom Plaintiff anticipates will not respond to questions and invoke their Fifth Amendment right As discussed above such invocation has no bearing on the issues in this matter Moreover it is obviously cumulative and duplicative Plaintiff also identifies Rinaldo Rizzo and Jean Luc Brunel but fails to provide any information from which Ms Maxwell or the Court could identify the subject matter of their expected testimony Thus it is unclear how these individuals have information that differs from or would add to the other proposed deponents It is the Plaintiffs burden to explain to the Court why these depositions should be permitted if they exceed the presumptive limit why the information would not be cumulative and its relevance to the important issues in the ac ti on or the importance of the discovery in resolving those is ues She simply fails to provide any information by which the Court can assess these factors and thus should not be permitted to exceed the deposition limit based on her proffer ID THE TESTIMONY SOUGHT IS IRRELEVANT TO TIDS SINGLE COUNT DEFAMATION CASE This case is a simple defamation case Plaintiff through her counsel filed a pleading making certain claims regarding Jane Doe No the Plaintiff and her alleged Case Document Filed Page of case Document Filed Page circumstances See Complaint Ms Maxwell denied the allegations made stating they were untrue and obvious lies Plaintiff claims these statements are defamatory because she has been called a liar A public figure claiming defamation under New York law must establish th at th statements complained of were of and concerning the plaintiff likely to be understood as defamatory by the ordinary person false and published with actual malice Biro Conde Nast Supp 2d S.D.N.Y ajjd F.3d 2d Cir and ajjd App 2d Cir If Ms Maxwells statements are essentially true Plaintiff lied Plaintiff cannot establish her claim and it is an absolute defense Further if Plaintiff cannot prove actual malice by Ms Maxwell her claim fails See Contemporary Mission In New York Times Co 2d Cir limited purpose public figure must establish by clear and convincing evidence that the defendant published the alleged defamatory statement with actual malice that is with knowledge that it was false or with reckless disregard of whether it as false or not quoting New York Times U.S That is Plaintiff must prove that Ms Maxwell permitted the publication of the statement knowing it to be untrue None of the witnesses identified are listed as having discoverable information Tegarding any of the ements of this claim None is claimed to have direct knowledge to confinn the truth of Plaintiffs claims about what happened lo her that the acts she claims she participated in There is only one public statement that existed on January to which Ms Maxwell was responding in the statement by her press agent The document is the Joinder Motion filed in the Crime Victims Rights Act case on behalf of Plaintiff by her attorneys Bradl ey Edwards and Paul Cassell Menninger eel Ex A The very first line descnoing Jane Doe Circumstances is false It read 1n Jane Doe was approached Ghislaine Maxwell and continuin that Maxwell ersuaded Jane Doe who was onl fifteen ears old to come to steins mansion Menninger Deel Ex A at No amowit 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B??U?d?x Jk Eŭ eK N?S?E Y??rfQ,??zv?H gЅ w??VT?m-x mv 8r u"S?m e9 bC mK fs Ү?P?t r??S?T iLdV?z ȤF 9dž I רՇ Cgb dw i C?P eV H??C iR oA?l п??U A?t?c vzpE?q??NH i fe VX QIp TD h8 lDO Ye z?c pu HAc?92 j?0W Gl a?M??YN7v?w e?,K rs g9 Nj H?X W?s s?f h??apS?jx Di?ڦ t?T?f ӽ??RU?B X?X CX1?M1 I DBh?h?5?qg pr?t v?Y??YAw?z耀 м?7??kyps?wA?G Kp җΕ zh?C v?i?S ϵf g?e NA??P Z?vnx b??b IrB ų?fm jӎ mR zA k??F Cf lk o?P p?H Йy Pc?ĺ?h?ɨ?l X?y?F-xpT?Z a Kkw Jn??Ѽp U??Y?X O?R??y P?bǸ nBL zG 5o 4?yf?q?ս i Zt 8ah j??S?p H?a fJW I?bZk Ut v5 F?vd,E FH_ l??StME?3 BH N1 SΉ hK?o ƮO w鸥?L?5 O"Ž ڶ?D R?8ɉ?g i ŧ??K e(o?R?-p q2 s?W A j?c ar6?PH k??v Jή g9k sQ Β?n GG??U5 J?b?FRO??5??F?e??!pdNt Case Document Filed Page of case Document Filed Page of occurred or that they occurre with the people she claims to have been involved Rather each witness identified as being able to provide their observations regarding other a1legedly underage girls their own personal experience or beliefs about Plaintiffs credibility None of this is relevant This is not a case about Jeffery Epstein or the alleged modus operandi of the Epstein organization This is a simple case of if Ms Maxwells denial of the allegations made by Plaintiff about Plaintiffs own interactions with Maxwell was defamatory and if Ms Maxwell acted with actual malice in issuing the denial Plaintiffs attempt to amplify this proceeding into something broader should not be condoned Because the evidence sought is nothing more than extraneous inadmissible circumstantial evidence irrelevant to proving th essential elements of the clai the burden or expense of the proposed discovery outweighs its likely benefit considering the needs of the case the parties resources the importance of the issues at stake in the action and the importance of the discovery in resolving the issues AtJ.inson WL at As such th request for the additional depositions should be denied WHEREFORE Ms Maxwell requests that the Motion to permit in excess of the presumptive ten deposition limit be denied alternatively if in excess often depositions are permitted Ms Maxwell requests that Plaintiff be required to pay all costs and attorneys fees The infoo:nation sought is also inadmissible Plaintiff seeks testimon from witness who she claims wiJl testi erience similar to her stories and this will Motion at Such evidence is prohibited by FRE which states Evidence of a crime wrong or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character Furthermore no other witness bas claimed as laintiff does tha Ghislain Maxwell sexually abused them sexually trafficked them or that she partook in daily sex with any underage girls Plaint i ffs claim stan in isolation because it is fictional This circumstantial evidence has no bearing on the truthfulness oftbe stories published by lain tiff It is equally likely to show that Plaintiff became aware of the allegations of others and decided to hop on the band wagon She then made up simi lar claims for the purpose of getting paid hundreds of thousands of dollars by the media for publicizing her allegations and identifying well know public figures whose names she has seen documents that she reviewed or other stories she had read Case Document Filed Page of Case RWS Document Filed Page of associated with attending any deposition occurring outside miles of the Courthouse for the Southern District ofNew York pursuant to N.Y L.Civ.R Dated June Respectfully submitted Isl Laura A Menninger Laura A Menninger Jeffrey Pagliuca pro hac vice HADDON MORGAN AND FOREMAN East th A venue Denver CO Phone Fax lmenninger hmflaw.com Attorneys for Ghislaine Maxwell Case Document Filed Page of Case RWS Document Filed Pag of CERTIFICATE OF SERVICE I certify that on June I electronically served this Defendants Response in Opposition to Motion to Exceed esumptive Ten Deposition Limit via ECF on the following Sigrid Mccawley Meridith Schultz BOIES SClfilLER FLEXNER LLP East Las Olas Boulevar Ste Ft Lauderdale FL smccawley bsfllp.com mscbultz bsfllp.com Bradley Edwards FARMER JAFFE WEISSING EDWARDS FISTOS LEHRMAN P.L North Andrews Ave Ste Ft Lauderdale FL brad pathtojustioe.com Paul Cassell University Street Salt Lake City UT cassellp aw.utab edu Stanley Pottinger Twin Lakes Rd South Salem NY StanPottinger aol.com Isl Nicole Simmons Nicole Simmons
