Document Text Content
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 VIRGINIA L. GIUFFRE,
4 Plaintiff,
5 v. 15 Civ. 7433 (RWS)
6 GHISLAINE MAXWELL,
7 Defendant. Oral Argument
8 ------------------------------x
New York, N.Y.
9 March 31, 2017
10:10 a.m.
10
Before:
11
HON. ROBERT W. SWEET,
12
District Judge
13
APPEARANCES
14
BOIES, SCHILLER & FLEXNER LLP
15 Attorneys for Plaintiff
BY: SIGRID S. McCAWLEY, ESQ.
16 MEREDITH L. SCHULTZ, ESQ.
17 S.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH
For Plaintiff
18 BY: PAUL G. CASSELL, ESQ.
19 HADDON, MORGAN AND FOREMAN, P.C.
Attorneys for Defendant
20 BY: JEFFREY S. PAGLIUCA, ESQ.
LAURA A. MENNINGER, ESQ.
21
22
23
24
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1 (Case called)
2 THE COURT: Like all of you, you woke up in the middle
3 of the night thinking about this case. I would like to see if
4 I can clarify my understanding.
5 In the motion to dismiss, I concluded, I think, that
6 what was at issue was the truth or falsity of the plaintiff's
7 allegations concerning sexual abuse and the activities of the
8 defendant. I think that's my sense of my own opinion.
9 Yesterday, we were discussing the redactions of the
10 intervention motion. I got the sense, perhaps wrongly, that
11 the plaintiff's position was that the defamation was the truth
12 or falsity of the statements relating to the defendant.
13 Period. Am I correct?
14 MS. McCAWLEY: You are, your Honor, in that the
15 statements about the defendant -- to be clear, because one of
16 the allegations is, of course, she was a madam and a
17 coconspirator with Epstein -- do involve Epstein.
18 THE COURT: Listen. Leave the pejorative out. Okay?
19 Please.
20 MS. McCAWLEY: Sure.
21 THE COURT: Simply because I'm trying to come to
22 grips, obviously, with the scope of this case, which is a real
23 issue, obviously. So is it you are restricting your claim to
24 the truth and falsity of the statements about Maxwell?
25 MS. McCAWLEY: Yes, that is the case, your Honor. The
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1 statements about Maxwell and her activities, without using any
2 description of what that is, but yes, as we've described in our
3 pleadings.
4 THE COURT: And whether or not the plaintiff was
5 subject to sexual abuse as a minor is not part of it. I mean,
6 yes, of course, whatever she was when whatever, but that issue
7 we don't have to deal with.
8 MS. McCAWLEY: I'm sorry, your Honor. I think I lost
9 you there. I apologize.
10 So the allegations in the complaint are that when our
11 client came forward and said she was abused by the defendant
12 and Epstein, the defendant came out and said she was lying
13 about that abuse, and some of that abuse did occur when she was
14 a minor.
15 THE COURT: Yes. Well, okay. But there are other
16 things that she sets forth in the Churcher articles, in the
17 motion to intervene, there are a whole series of other things
18 that are -- I mean, there are things that have been said, and
19 my reading of the defendant's statement is, I read it to say
20 all those things are false. But those are not at issue, as far
21 as you're concerned.
22 MS. McCAWLEY: Yes, your Honor. In fact, the omnibus
23 motion we filed today -- and I think, if I'm following you
24 correctly, this may help -- we were trying to streamline the
25 case because there's other individuals, obviously, that my
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1 client made statements about. So we were trying to streamline
2 the case to the statements about Maxwell and her involvement
3 with Epstein.
4 So in the omnibus motion you'll see, for example, that
5 they have claimed she's made statements about other
6 individuals, and we say that that's not what's at issue, what's
7 at issue are the statements --
8 THE COURT: That may be an issue of credibility. That
9 may be an issue of credibility. I'm talking about what we're
10 going to go to the jury on.
11 MS. McCAWLEY: Yes. And that is the statements that
12 Maxwell made about my client.
13 THE COURT: And that's it.
14 MS. McCAWLEY: Yes, your Honor.
15 THE COURT: Let me ask the defense. Does that clarify
16 anything for you?
17 MS. MENNINGER: Could I have one second, your Honor?
18 THE COURT: Sure. Of course.
19 MS. MENNINGER: Your Honor, I think it's slightly more
20 nuanced. Plaintiff has claimed our client's statement is
21 false. Our client's statement is not just limited to the
22 little snippets that they included in their complaint, it's the
23 entire statement. That entire statement talks about Virginia
24 Giuffre's allegations against Ms. Maxwell have been proven
25 untrue.
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1 THE COURT: Yes. But the statement wasn't limited to
2 those allegations.
3 MS. MENNINGER: That's exactly right, your Honor,
4 because right in the middle of that particular statement, the
5 one that's at issue in this case, our client said, "Now her
6 story has grown and evolved, and she's included allegations
7 about world leaders and Alan Dershowitz, which he denies." We
8 can't just take that part out of her statement, that's what
9 Ms. Maxwell put in her statement.
10 And your Honor, what we will ultimately be hearing
11 from Ms. Maxwell about what she believed were the obvious lies
12 that she was referring to and the allegations that she was
13 referring to when she issued that statement.
14 THE COURT: Now, one other question, and then we'll
15 get to the business of the day. I apologize for this
16 diversion.
17 Let me ask you both. Suppose the plaintiff proves
18 that she was sexually abused and that her story is
19 substantially true but she does not prove the role that Maxwell
20 had. Does she win?
21 MS. MENNINGER: No, she loses, your Honor.
22 THE COURT: I think she wins.
23 MS. MENNINGER: Your Honor, the very first --
24 THE COURT: Other than what you've just said.
25 MS. MENNINGER: Your Honor, our client can only be
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1 alleged to have defamed someone based on facts, not opinions.
2 THE COURT: Agreed. Agreed.
3 MS. MENNINGER: And so she can -- the Davis v. Boeheim
4 case is a perfect example of that, your Honor. She can only
5 speak to facts about which she has personal knowledge. If
6 plaintiff goes and proves that plaintiff went and had sex with
7 Jeffrey Epstein at some point in time and our client wasn't
8 there, our client's statement about that would be opinion, it
9 would not be a fact based on personal knowledge.
10 THE COURT: I mean, okay. But that's an issue of
11 knowledge. That's a different --
12 MS. MENNINGER: You just said --
13 THE COURT: That's a different --
14 MS. MENNINGER: The hypothetical was if our client
15 wasn't involved. If our client wasn't involved then it would
16 be an opinion.
17 THE COURT: Thanks very much. I'm glad for this
18 clarity, which frankly, at the moment, alludes me.
19 Okay, let's move on. Yes, I'll hear from the movant.
20 MS. McCAWLEY: Thank you, your Honor.
21 The first order of business we'd like to address, if
22 it's okay with the Court, is our filing, which was 691, which
23 is our omnibus motion in limine. And if it's okay with the
24 Court, we've split that up a bit. I'm going to start with
25 respect to that motion in limine.
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1 What we attempted to do with our motion in limine was
2 streamline the trial. And your Honor, based on the comments
3 you've just made, if you want to give me guidance, I'll tell
4 you what I'm thinking with respect to this and what we put
5 forth in our filing.
6 But there are statements that are attributed to my
7 client in other articles and things. For example, there are
8 statements about Bill Clinton being on the island, and the
9 defense wants to bring in those statements to show that -- they
10 believe they can show evidence that he wasn't on the island, so
11 therefore, my client is a liar or is lying about that.
12 Now, your Honor will remember, back in June we sought
13 to depose him because we were concerned about that fact, that
14 they were going to raise it, and we wanted to have him under
15 oath --
16 THE COURT: Let's back up a little bit.
17 MS. McCAWLEY: Sure.
18 THE COURT: What and where was the statement made?
19 MS. McCAWLEY: The statement was made in a March 5th
20 article. So not the two articles we showed you yesterday --
21 THE COURT: The Churcher article.
22 MS. McCAWLEY: Yes. But it was another article that
23 came out in March of 2011.
24 And the statement was with respect to my client saying
25 she saw him on Epstein's island. She was introduced to him
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1 there. Although no allegations of trafficking or anything of
2 that nature, just that she was there. And they are seeking to
3 introduce evidence through Louie Freeh, who we'll discuss in a
4 moment, they've proposed, and he's clearly an expert that was
5 undisclosed, and through a FOIA record, and through the
6 articles to allege that he wasn't on the island.
7 And so in your Honor's order in 264-1, which is one of
8 the sealed orders, you did not allow us to depose him because
9 you said it was irrelevant.
10 So we're now in a position where at trial they want to
11 put forth that information against my client, and I don't have
12 an under-oath statement from that individual saying whether or
13 not he actually was.
14 Now, what we know is he flew with Jeffrey Epstein at
15 the same time 19 different times internationally and
16 nationally, but we don't have him with respect to this
17 particular allegation under oath. So we would say it would be
18 highly prejudicial for them to be able introduce evidence
19 saying that he wasn't there or that they have some proof or
20 some expert saying he wasn't there when, in fact, we weren't
21 able to ask him directly, the person who is at issue, under
22 oath, whether or not he did, in fact, go there.
23 So one of the streamlining of this case is that
24 allegation has nothing to do with sexual abuse, it doesn't have
25 to do with the statements --
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1 THE COURT: It has to do with credibility.
2 MS. McCAWLEY: Well, your Honor, I would say, if
3 you're inclined to think that that has --
4 THE COURT: Well, look. I'm no genius. I don't claim
5 any -- but you know, that is precisely what the defense is
6 going to say.
7 MS. McCAWLEY: Right. I understand, your Honor. And
8 that's why we sought to depose him because it's inherently
9 unfair --
10 THE COURT: Okay. So you would say I made a mistake.
11 MS. McCAWLEY: No, your Honor. I think it should be
12 excluded, and in my view, I think it's not relevant to the
13 issue at trial here. But they are, of course, going to argue
14 that it is and that they want to bring that in. In fact, like
15 I said, they've got lined up Mr. --
16 THE COURT: Well, on the question of credibility, why
17 isn't it relevant?
18 MS. McCAWLEY: Because the statement -- so this case
19 is about whether or not she was sexually abused and
20 trafficked --
21 THE COURT: Now, that's where I started out. Is it
22 about that? If that is your position, that's something else.
23 If it's a question about her sexual abuse, in addition to, then
24 that's something else. But you just said it isn't about that,
25 it's just about Maxwell and did she tell the truth about
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1 Maxwell.
2 Well, I suppose, I suppose -- I haven't heard the
3 other side and I haven't really thought it all out -- but I
4 suppose if she is untruthful in other instances, that may be
5 relevant to her credibility.
6 MS. McCAWLEY: Well, your Honor, if that's the Court's
7 position, again, we would be in a circumstance -- I mean,
8 there's a couple reasons why the evidence itself that they want
9 to put forth doesn't come in.
10 THE COURT: Well, that's a different thing.
11 MS. McCAWLEY: Sure. That's part of our motion, as
12 well, your Honor.
13 THE COURT: Sure. I read that. I understand that.
14 MS. McCAWLEY: Right. So on the same note, since
15 we're talking about this, I'll just tick off the few that fall
16 within this category, if you don't mind. I understand, your
17 Honor's position, so --
18 THE COURT: Well, I'm not sure what my position is
19 right now.
20 MS. McCAWLEY: Okay. So with respect to -- there's
21 another category where there's been statements where my client
22 said that she was trafficked to foreign presidents and world
23 leaders that they want to bring into evidence. And in order to
24 streamline the case, we've said, well, there's none of those
25 people on the witness list, and just statements in an article
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1 of that nature shouldn't be able to come in. Because when we
2 talk about a character issue, what's at issue here is
3 reputation, and reputation to show the truthfulness of that
4 would not be able to be proven in that circumstance because we
5 don't have the other individuals there to make that statement,
6 so there's no substantive evidence on that point that would be
7 coming in.
8 And the third category is with respect to
9 Mr. Dershowitz, who is on the defendant's witness list for
10 trial, and we have a few points there to raise. I mean, one is
11 obviously that if that were allowed to come in, that causes the
12 trial to become a mini trial about whether or not he, for
13 example, was in the places where she says he was, his
14 calendars, his credit card receipts, his telephone records, all
15 of that. It gets into the issue, you know, obviously we have
16 another witness who says that they were in a similar
17 circumstance with respect to him. So it takes the trial away
18 from whether or not the allegations relating to Maxwell are
19 true or false and turns it into a trial about another
20 individual who we have not made a claim against who comes in.
21 There's also a problem with respect to that because he
22 is also -- he has claimed attorney/client privilege as to his
23 conversations and his advice with respect to Epstein which
24 relates to the issues with Maxwell. So in other words, he
25 would be able to testify what he says he didn't do, but then
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1 any questions we wanted to ask him about Epstein or Maxwell he
2 says he's got an attorney/client privilege. So we're hand-tied
3 because we can't ask about the issues that we need to ask about
4 with respect to that witness. So in my view, it's highly
5 prejudicial to have him as a witness at trial when, again, our
6 claims are not against him, and we have those issues.
7 Now, you did have -- in your February 2nd order, you
8 also precluded us from asking questions that we contended were
9 non-Fifth Amendment questions of Jeffrey Epstein about
10 Dershowitz, holding that those were not relevant. So we're in
11 a situation where we have another witness that we are not able
12 to elicit all of the information we need to be able to prove
13 the truth or falsity of that, and again, it would be subject to
14 a number of mini trials on that issue of Mr. Dershowitz.
15 So with respect to those three categories -- and it
16 also allows them to use the attorney/client privilege as a
17 sword and a shield in the midst of a trial, which is inherently
18 unfair to my client, as well.
19 So in our view, it's highly prejudicial under 403.
20 Those groupings should not come in. It should not be about,
21 for example, Clinton and whether or not he was on an island, or
22 Mr. Dershowitz or these other world leaders, it should be about
23 the defendant and her statements that my client was lying when
24 she claimed to be abused and trafficked in those statements.
25 THE COURT: Just a second.
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1 MS. McCAWLEY: Sure.
2 THE COURT: What you just said, could you repeat what
3 you just said?
4 MS. McCAWLEY: Yes. So the statements that
5 Ms. Maxwell denied were statements that my client made that
6 defendant and Epstein trafficked her, brought her in, had her
7 participate in the sexual abuse of her and other females, she
8 was in that circumstance, she lived that circumstance for a
9 period of time, and so Maxwell came out and called my client a
10 liar, said she was lying about those statements that she made,
11 and said that, obviously, as you know, to the international
12 press about my client and what her experience was with them.
13 So with respect to that, your Honor, those are the
14 categories that we believe would help streamline the case, and
15 again, that those witnesses would be highly prejudicial.
16 On the issue of the information that they'd like to
17 put in with respect to Mr. Clinton, they have Louie Freeh who
18 they've identified. This is a former FBI director.
19 THE COURT: I know.
20 MS. McCAWLEY: You know, yes. So they've put him in
21 without giving us a Rule 26 expert report. He was never
22 disclosed during the time period. His report or what he's
23 going to say, as we understand it, is that he's reviewed the
24 FOIA response and that there's no evidence in his view that
25 Clinton was on this island, again, even though he flew
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1 regularly with Mr. Epstein to other places.
2 So again, we didn't get to depose him as an expert in
3 this matter. We didn't know that he was going to be called as
4 an expert. They're saying he's a lay opinion because he's a
5 private investigator, your Honor. The case law says otherwise.
6 He's been certified as an expert in these exact kind of cases.
7 We put those in our brief. So your Honor, he is really a wolf
8 in sheep's clothing. They're trying to put him on as a lay
9 opinion when he's really an expert witness in this case with
10 sufficient and sophisticated knowledge, that the jury will
11 recognize him as someone who has expertise in this area so,
12 your Honor, we believe he should be precluded from testifying.
13 He has no personal knowledge, it's simply his reliance, as we
14 understand it, on the one FOIA response letter.
15 So your Honor, with respect to the FOIA response
16 letter that's at issue that they are going to try to get into
17 evidence, we've put forth in our papers, again, that's a
18 hearsay document. It's highly prejudicial under 403. They say
19 that it meets self-authentication, but unlike the documents
20 that we showed, for example the 302 that have the seal on it,
21 it has none of those qualifications.
22 They cite to two cases, the Zamara case and the Gary
23 case. Both of those involve getting into evidence underlying
24 records that were produced by the government, not a FOIA
25 letter. So what they're trying to produce is a letter that
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1 says we've looked and we can't find these records that you've
2 requested.
3 Now, it doesn't address the fact that the government
4 only typically retains records for a few years when they were
5 requesting records from 15 years ago, so it doesn't have the
6 indicia of trustworthiness to be able to say that this is
7 actually the fact because, of course, as we know, the
8 government regularly has to get rid of records.
9 So to use this letter to say, 'Ah-hah, he was never on
10 the island,' when we never got to examine him under oath and
11 say, 'You traveled with him a bunch. Did you also go to the
12 island? My client says she met you there.' We didn't get to
13 ask those questions, so we're in a situation now where that
14 letter coming in would be highly prejudicial because the jury
15 will wonder, well, what does he have to say about this? And we
16 haven't been in a position to be able to do that.
17 So your Honor, for all those reasons we believe that
18 Mr. Freeh should be excluded, the FOIA letter should not come
19 into evidence, and again, we believe that the issue of
20 Mr. Clinton should not be an issue relevant to this trial.
21 Next, your Honor, they also seek to include
22 statements, hearsay statements and newspaper articles about
23 Prince Andrew, and it's actually not his denial, as I
24 understand it, Buckingham Palace's denial of the allegation of
25 my client. But again, Prince Andrew is not on the witness
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1 list, we're not able to cross examine him, so what they want to
2 do is introduce triple hearsay of Buckingham Palace saying what
3 Prince Andrews said in a news article without the reporter
4 against my client without our ability to cross examine him on
5 that.
6 So your Honor, they've tried to argue a little bit of
7 a securitous way, I think that it's a verbal act on behalf of
8 Prince Andrew, it doesn't meet that criteria, there's been no
9 statement by -- there's been no action by my client against
10 him, and what's at issue in this case is, again, Maxwell's
11 statements against my client.
12 The case that they cite actually, the Minemyer case,
13 goes against them. It actually talks about how you would have
14 to call the reporter, that that couldn't come into evidence.
15 And so, your Honor, for those reasons, we believe that, again,
16 that's a distraction, it's highly prejudicial to allow a triple
17 hearsay document like that to come in without our ability to be
18 able to cross examine that individual. So for those reasons,
19 your Honor, we believe that that should not come in.
20 They also made an argument that it's somehow an
21 intervening cause or that, you know, it goes to the issue of
22 she should be seeking damages from Prince Andrew, things of
23 that nature. But as we know, because your Honor reviewed the
24 case law with respect to the summary judgment, each individual
25 is responsible for their own defamation, so it doesn't come
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1 into consideration whether she could have sued six people for
2 it, 20 other people for it, this case is about Maxwell and her
3 defamation against my client.
4 So again, your Honor, if you look at Sack on
5 Defamation, it addresses that directly, and we believe that
6 that should not come into evidence.
7 So your Honor, that's the first chunk of the omnibus
8 motion that I was addressing. I'm not sure how you want to
9 take it, if you want to have opposing counsel speak on those
10 issues now and then move to the others, or if you want us to
11 keep moving through it?
12 THE COURT: What's your preference?
13 MS. McCAWLEY: I think keep moving through it would be
14 great.
15 THE COURT: What?
16 MS. McCAWLEY: To keep moving it through it, if that's
17 all right, so we can get through argument and then have them
18 address it?
19 THE COURT: Sure.
20 MS. McCAWLEY: Thank you, your Honor.
21 MS. SCHULTZ: Your Honor, this is Meredith Schultz for
22 the plaintiff. The next article in the omnibus motion is to