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