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Case 1:15-cv-07433-LAP Document 143

Aug 4th, 2020
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  1. PLAINTIFF’S REDACTED MOTION TO COMPEL DEFENDANT
  2. TO ANSWER DEPOSITION QUESTIONS FILED UNDER SEAL1
  3. Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
  4. Motion to Compel Defendant to Answer Deposition Questions. During her recent deposition,
  5. Defendant refused to answer numerous questions about allegedly “adult” sexual activity related
  6. to Jeffrey Epstein. Because this activity is highly relevant to this case, Defendant should be
  7. ordered to answer questions about it.
  8. As the Court is aware, this defamation case involves Ms. Giuffre’s assertions that she and
  9. other females were recruited by Defendant to be sexually abused by Jeffrey Epstein under the
  10. guise of being “massage therapists.” See Complaint, (DE 1), at ¶ 27 (Giuffre “described
  11. Maxwell’s role as one of the main women who Epstein used to procure under-aged girls for
  12. sexual activities and a primary co-conspirator and participant in his sexual abuse and sex
  13. trafficking scheme”). In response to these assertions, Defendant has made the sweeping claim
  14. that Ms. Giuffre’s assertions are “entirely false” and “entirely untrue.” Complaint, DE 1, at ¶ 31.
  15.  
  16. 1 Defendant has labelled her entire deposition transcript as Confidential at this time. Counsel for
  17. the parties conferred at the deposition regarding answering questions.
  18. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 1 of 10
  19. 2
  20. Yet during her deposition, Defendant refused to answer any questions that she construed
  21. as having something to do with “consensual adult sex.” Defense counsel supported that position
  22. that “frankly, [that’s] none of your business and I instruct the witness not to answer.” See
  23. Declaration of Sigrid S. McCawley (“McCawley Decl.”) at Exhibit 1, Tr. of Maxwell Depo.
  24. (Apr. 22, 2016) at 21. The result was that at a number of points throughout her deposition,
  25. Defendant refused to answer questions about subjects integral to this lawsuit, including questions
  26. about what the alleged “massage therapists” were doing at Jeffrey Epstein’s house and the sexual
  27. nature of those massages.
  28. For example, Defendant refused to answer questions about whether she had given Jeffrey
  29. Epstein a massage:
  30. Q. Have you ever given Jeffrey Epstein a massage?
  31. MR. PAGLIUCA: Object to the form, foundation. And I'm going to
  32. instruct you not to answer that question. I don't have any problem with you
  33. asking questions about what the subject matter of this lawsuit is, which would
  34. be, as you've termed it, sexual trafficking of Ms. Roberts.
  35. To the extent you are asking for information relating to any consensual
  36. adult interaction between my client and Mr. Epstein, I'm going to instruct her not
  37. to answer because it's not part of this litigation and it is her private confidential
  38. information, not subject to this deposition.
  39. MS. McCAWLEY: You can instruct her not to answer. That is your
  40. right. But I will bring her back for another deposition because it is part of the
  41. subject matter of this litigation so she should be answering these questions. This
  42. is civil litigation, deposition and she should be responsible for answering these
  43. questions.
  44. MR. PAGLIUCA: I disagree and you understand the bounds that I put on
  45. it.
  46. MS. McCAWLEY: No, I don't. I will continue to ask my questions and
  47. you can continue to make your objections.
  48. Q. Did you ever participate from the time period of 1992 to 2009, did
  49. you ever participate in a massage with Jeffrey Epstein and another female?
  50. MR. PAGLIUCA: Objection. Do not answer that question. Again, to the
  51. extent you are asking for some sort of illegal activity as you've construed in
  52. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 2 of 10
  53. 3
  54. connection with this case I don't have any problem with you asking that question.
  55. To the extent these questions involve consensual acts between adults, frankly,
  56. they're none of your business and I will instruct the witness not to answer.
  57. MS. McCAWLEY: This case involves sexual trafficking, sexual abuse,
  58. questions about her having interactions with other females is relevant to this case.
  59. She needs to answer these questions.
  60. MR. PAGLIUCA: I'm instructing her not to answer.
  61. MS. McCAWLEY: Then we will be back here again.
  62. See McCawley Decl. at Exhibit 2, Tr. of Maxwell Depo. (Apr. 22, 2016) at 19-22 (emphasis
  63. added).
  64. Defendant’s participation in massages with Epstein is a central part of this case. Ms.
  65. Giuffre has explained that during her first sexual encounter with Jeffrey Epstein, it was
  66. Defendant who provided instruction on how to do it and how to turn the massage into a sexual
  67. event. Obviously, proof that Defendant had previously massaged Epstein – include massages
  68. with sexual component – would provide important corroboration for Ms. Giuffre’s testimony at
  69. trial. And proof that Defendant was involved in massages will further help prove that
  70. statements to the press that Virginia’s allegations were “obvious lies” was itself an obvious lie.
  71. As another example, Defendant refused to answer questions about her knowledge that
  72. Johanna Sjoberg was hired to work for Epstein and provided massages. In the police report,
  73. Johanna admitted that Maxwell recruited her to work for Epstein. See McCawley Decl. at
  74. Exhibit 3, Giuffre000076-77 (police report indicating that Johanna was recruited by Maxwell).
  75. Yet during Defendant’s deposition, she refused to answer questions regarding Johanna Sjoberg.
  76. Q. Do you know what tasks Johanna was hired to performance?
  77. A. She was tasked to answer telephones.
  78. Q. Did you ever ask her to rub Jeffrey's feet? . . .
  79. A. I believe that I have read that, but I don't have any memory of it.
  80. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 3 of 10
  81. 4
  82. Q. Did you ever tell Johanna that she would get extra money if she
  83. provided Jeffrey massages?
  84. A. I was always happy to give career advice to people and I think that
  85. becoming somebody in the healthcare profession, either exercise instructor or
  86. nutritionist or professional massage therapist is an excellent job opportunity.
  87. Hourly wages are around 7, 8, $9 and as a professional healthcare provider you
  88. can earn somewhere between as we have established 100 to $200 and to be able to
  89. travel and have a job that pays that is a wonderful job opportunity. So in the
  90. context of advising people for opportunities for work, it is possible that I would
  91. have said that she should explore that as an option.
  92. Q. Did you tell her she would get extra money if she massaged Jeffrey?
  93. A. I'm just saying, I cannot recall the exact conversation. I give career
  94. advice and I have done that.
  95. Q. Did you ever have Johanna massage you?
  96. A. I did.
  97. Q. How many times?
  98. A. I don't recall how many times.
  99. Q. Was there sex involved?
  100. A. No. . . .
  101. Q. Did you ever have sexual contact with Johanna?
  102. MR. PAGLIUCA: Object to the form and foundation. You need to give
  103. me an opportunity to get in between the questions.
  104. Anything that involves consensual sex on your part, I'm instructing you
  105. not to answer.
  106. Q. Did you ever have sexual contact with Johanna?
  107. A. [MR. PAGLIUCA?] Again, she is an adult --
  108. Q. I’m asking you, did you ever have sexual contact with Johanna?
  109. A. I’ve just been instructed not to answer.
  110. Q. On what basis?
  111. A. You have to ask my lawyer.
  112. See McCawley Decl. at Exhibit 4, Tr. of Maxwell Depo. (Apr. 22, 2016) at 60-62 (emphasis
  113. added).
  114. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 4 of 10
  115. 5
  116. Here again, this information is critical to the case. Among other things, these questions
  117. are designed to show a modus operani (“M.O”) for Epstein and Maxwell – specifically, how they
  118. recruited for a non-sexual massage than converted the massage into sexual activities.
  119. One last illustration comes from Defendant’s refusal to answer about her knowledge of
  120. Epstein’s sexual interests during massages:
  121. Q. Does Jeffrey like to have his nipples pinched during sexual
  122. encounters?
  123. MR. PAGLIUCA: Objection to form and foundation.
  124. A. I'm not referring to any advice on my counsel. I'm not talking about
  125. any adult sexual things when I was with him.
  126. Q. When Jeffrey would have a massage, would he request that the
  127. masseuse pinch his nipples while he was having a massage?
  128. A. I'm not talking about anything with consensual adult situation.
  129. See McCawley Decl. at Exhibit 5, Tr. of Maxwell Depo. (Apr. 22, 2016) at 82.
  130. While Epstein himself might also provide answers to these questions, it appears likely
  131. that he will assert his Fifth Amendment privilege regarding his sexual activities. Accordingly,
  132. Ms. Giuffre must pursue questioning of Maxwell to obtain information on this subject. Here
  133. again, information about Epstein’s sexual idiosyncrasies will provide important corroboration to
  134. Ms. Giuffre’s testimony that she had sexual interactions of an identical nature with Epstein.
  135. These refusals are not an isolated instance. Instead, similar refusals to answer questions
  136. occurred repeatedly throughout the deposition. See, e.g., McCawley Decl. at Composite Exhibit
  137. 6. 52-55; 64-65; 82; 92-93; 137-38; 307-09.
  138. The Court should compel Defendant to answer all these questions. In addition to the
  139. specific points made above, the “big picture” here reveals how vital such discovery is. At the
  140. core of Ms. Giuffre’s allegations is the allegation that Defendant lured her into a sexual situation
  141. with the offer of a job making money as a massage therapist; that Epstein always habitually tried
  142. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 5 of 10
  143. 6
  144. to turn massages into sex (that was his modus operandi and plan all along); and that Maxwell
  145. recruited other females for an ostensibly proper position, such as therapeutic masseuse, with
  146. knowledge that the intent was for that person would be pressured to provide sexual gratification
  147. to Epstein. As a result, Epstein’s use of massages for sexual purposes is a central part of this
  148. case.
  149. And Defendant’s role in those massages – and knowledge of the purposes of those
  150. massages – is a critical piece of evidence showing her state of mind when she attacked Ms.
  151. Giuffre’s assertions as “entirely untrue.” Ms. Giuffre intends to prove at trial that Defendant
  152. knew full well the sexual purpose for which she was recruiting females – including underage
  153. females like Ms. Giuffre. Ms. Giuffre is entitled to explore Defendant’s knowledge of the sexual
  154. activities that took place under the guise of “massages.” Otherwise Defendant will be able to
  155. portray to the jury an inaccurate picture of that what was happening at Epstein’s house what
  156. nothing more than run-of-the-mill massage therapy. See, e.g., McCawley Decl. at Exhibit 7, Tr.
  157. of Maxwell Depo. (Apr. 22, 2016) at 51 (“Q: Did [the pay for massage therapists] vary on what
  158. sexual acts they performed? . . . A: No, it varied depending on how much time, some massage
  159. therapists charge more and some charge less.”).
  160. Defendant’s refusal to answer questions about alleged “adult” consensual sex also blocks
  161. Ms. Giuffre from seeking legitimate discovery in this case. By refusing to answer questions
  162. about her and Epstein’s sexual activities with alleged “adults,” Defendant is essentially given the
  163. ability to refuse to answer any sexual question she does not wish to answer. Defendant simply
  164. has to deem the question as involving “consensual adult sex” and no need be given. The result is
  165. to leave Ms. Giuffre with no way of exploring the identity of these alleged adults, the ages of
  166. these alleged adults, and indeed whether they were adults at all. This allows Defendant to claim
  167. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 6 of 10
  168. 7
  169. that she is unaware of any sexual activity involving underage females, because (she claims) the
  170. only sexual activity she was aware involved adults.
  171. The Court should compel Ms. Maxwell to answer all questions about her knowledge
  172. relating to sexual activities with Epstein and other females while at Epstein’s various homes. See
  173. Fed. R. Crim. P. 37(a)(3)(B)(i); see, e.g., Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010
  174. WL 1541585, at *20 (S.D.N.Y. Apr. 12, 2010) (“Under the Federal Rules, when a party refuses
  175. to answer a question during a deposition, the questioning party may subsequently move to
  176. compel disclosure of the testimony that it sought. The court must determine the propriety of the
  177. deponent's objection to answering the questions, and can order the deponent to provide
  178. improperly withheld answers during a continued deposition” (internal citations omitted)). Of
  179. course, the party objecting to discovery must carry the burden of proving the validity of its
  180. objections, particularly in light of “the broad and liberal construction afforded the federal
  181. discovery rules . . . .” John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186
  182. (S.D.N.Y. 2014). For purposes of a deposition, the information sought “need not be admissible
  183. at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible
  184. evidence.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013) (citing
  185. Fed.R.Civ.P. 26(b)(1)).
  186. Defendant cannot carry her burden of showing that the questions asked are not
  187. reasonably calculated to lead to the discovery of admissible evidence. This is a case in which
  188. sexual activities lie at the heart of the issues in dispute. As a result, it is hardly surprising to find
  189. that discovery pertains to alleged “adult” sexual activities – and questions about such subjects are
  190. entirely proper. See, e.g., Condit v. Dunne, 225 F.R.D. 100, 113 (S.D.N.Y. 2004) (in defamation
  191. case, “Plaintiff is hereby ordered to answer questions regarding his sexual relationships in so far
  192. Case 1:15-cv-07433-LAP Document 143 Filed 05/05/16 Page 7 of 10
  193. 8
  194. as they are relevant to a defense of substantial truth, mitigation of damages, or impeachment of
  195. plaintiff.”); Weber v. Multimedia Entm't, Inc., No. 97 CIV. 0682 PKL THK, 1997 WL 729039, at
  196. *3 (S.D.N.Y. Nov. 24, 1997) (“While discovery is not unlimited and may not unnecessarily
  197. intrude into private matters, in the instant case inquiry into private matters is clearly relevant to
  198. the subject matter of the suit. Accordingly, plaintiff Misty Weber shall respond to defendants'
  199. interrogatories concerning her sexual partners . . . .”).
  200. Generally speaking, instructions from attorneys to their clients not to answer questions at
  201. a deposition should be “limited to [issues regarding] privilege.” Morales v. Zondo, Inc., 204
  202. F.R.D. 50, 54 (S.D.N.Y. 2001). In this case, defense counsel ranged far beyond the normal
  203. parameters of objections and sought to decide for himself what issues were relevant. That was
  204. improper and the Court should order a resumption of the Defendant’s deposition so that she can
  205. answer questions about her knowledge of sexual activity relating to Jeffrey Epstein.
  206. CONCLUSION
  207. Defendant should be ordered to sit for a follow-up deposition and directed to answer
  208. questions regarding her knowledge of alleged “adult” sexual activity.
  209. Dated: May 5, 2016.
  210. Respectfully Submitted,
  211. BOIES, SCHILLER & FLEXNER LLP
  212. By: /s/ Sigrid McCawley
  213. Sigrid McCawley (Pro Hac Vice)
  214. Meredith Schultz (Pro Hac Vice)
  215. Boies Schiller & Flexner LLP
  216. 401 E. Las Olas Blvd., Suite 1200
  217. Ft. Lauderdale, FL 33301
  218. (954) 356-0011
  219. David Boies
  220. Boies Schiller & Flexner
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